Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2565

1 Thursday, 8th May 1997

2 (10.00 am)

3 MR. MLADEN KULJANIN (continued)

4 Cross-examined by MS. RESIDOVIC (continued).

5 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.

6 Can we have the witness in? Invite the witness.

7 MR. OSTBERG: He is on his way.

8 (Witness enters court)

9 JUDGE KARIBI WHYTE: Remind him he is on his oath.

10 THE REGISTRAR: I remind you that you are still testifying

11 under oath?

12 A. Yes.

13 JUDGE KARIBI WHYTE: May we have the appearances, please?

14 MR. OSTBERG: Thank you, your Honour. I am Eric Ostberg.

15 I appear today with Mr Giuliano Turone, Ms Teresa

16 McHenry and our case manager and assistant, Miss Elles

17 van Dusschoten.

18 JUDGE KARIBI WHYTE: The appearances on the defence

19 side? .

20 MS. RESIDOVIC (in interpretation): Good morning, your

21 Honours. I am Edina Residovic, defence counsel for

22 Zejnil Delalic. With me is Professor Eugene O'Sullivan

23 from Canada.

24 JUDGE KARIBI WHYTE: Any other defence appearances?

25 MR. GREAVES: I do apologise. I was thinking of something

Page 2566

1 else completely. My name is Michael Greaves. I am

2 acting on behalf of Mr Mucic. I have the assistance of

3 Mrs Tapuskovic today.

4 MR. KARABDIC (in interpretation): I am Salih Karabdic. I

5 am defence counsel of Mr Hazim Delic. With me in the

6 team is Mr Thomas Moran from Houston, Texas.

7 MR. ACKERMAN: Good morning, your Honours. I am John

8 Ackerman on behalf of Esad Landzo. Present in the

9 gallery on his behalf is Mustafa Brackovic.

10 JUDGE KARIBI WHYTE: Thank you very much. I think

11 Ms Residovic is cross-examining. You may wish to

12 continue.

13 MS. RESIDOVIC (in interpretation): Good morning, your

14 Honours. Good morning, Mr Kuljanin.

15 A. (In interpretation): Good morning, Madam.

16 Q. Yesterday we were discussing your interrogation by

17 Mr Miroslav Stenek; is that so?

18 A. Yes.

19 Q. Mr Kuljanin, do you sign your name in Latin alphabet?

20 A. Yes.

21 Q. Would you be kind enough, with the help of the usher, to

22 put two signatures on this paper? (Handed)?

23 MR. TURONE: Your Honour, I wonder about the relevancy of

24 this experiment.

25 MS. RESIDOVIC (in interpretation): Your Honours, we are

Page 2567

1 questioning the witness concerning the statement that he

2 is alleged to have signed. I wish to know how this

3 witness signs his name.

4 JUDGE KARIBI WHYTE: Has he denied signing any statement?

5 MS. RESIDOVIC (in interpretation): I shall continue with

6 the examination, as he denied that he had made other

7 statements.

8 JUDGE KARIBI WHYTE: If you are pursuing the fact that he

9 has denied signing any statement or making any

10 statement, then perhaps there might be some relevance in

11 making him sign, so that you can cross-check, but

12 without that I think it is unnecessary.

13 MS. RESIDOVIC (in interpretation): That is correct. Thank

14 you. Can I ask you then to sign twice in the normal

15 way that you sign things? (Witness signed). Thank

16 you. You said that you had been forced to sign that

17 statement?

18 A. Yes.

19 Q. You also said that Mr Stenek and the other interrogator

20 asked you about weapons, the military organisation of

21 the defence of Bradina and questions along those lines;

22 is that true?

23 A. Yes.

24 Q. You also told me yesterday that in answer to the

25 question whether you had a rifle you had said you had?

Page 2568

1 A. Yes, under duress.

2 Q. You also confirmed that you were standing before the

3 interrogators for about one hour and that no physical

4 force was used against you?

5 A. Not inside the building, but outside in front of the

6 command building.

7 Q. Yes. Asked by the interrogator whether you know

8 anything about the arming of Bradina, you answered at

9 the time, as you say under duress, that you knew that an

10 armoured vehicle had brought automatic rifles from the

11 military barracks in Hadici; is that correct?

12 A. I had heard that, but I didn't see it, whether there was

13 an armoured vehicle or there were just people there.

14 Q. So you told the Commission what you had heard, that such

15 a vehicle had come and that there were 40 rifles inside?

16 A. I must repeat that whatever I said I said under

17 duress. I had to say that.

18 Q. Thank you. When you were asked whether you were aware

19 of the arming of other people in Bradina, you said at

20 the time, again under duress, as you say, that Zoran

21 Kuljanic (sic) and Radovan Benjo had a mortar, that

22 Boban Simanic also had a mortar, that others had

23 anti-aircraft machine guns, snipers and so on; is that

24 correct?

25 A. It is true that I said that under duress.

Page 2569

1 Q. You were also asked about the military organisation in

2 Bradina; is that so?

3 A. Yes.

4 Q. At the time you said that the commanders in Bradina were

5 --

6 THE INTERPRETER: Sorry. The names? Would you please

7 repeat the names?

8 Q. That the defence was under the leadership of Rajko

9 Dordic. Is that the Rajko Dordic of whom you said

10 yesterday that he had been working in the Territorial

11 Defence of Konjic?

12 A. Yes.

13 Q. Mr Kuljanin, is that the same Rajko Dordic who told you

14 to go back with Drasko Koprivica when he was wounded

15 during your attempt to cross over into Serb-held

16 territories?

17 A. Yes.

18 Q. Thank you. Please, Mr Kuljanin, after this

19 interrogation were you interrogated again?

20 A. Yes.

21 Q. Where?

22 A. In the SUP of Konjic.

23 Q. Will you tell me who interrogated you on that occasion?

24 A. I cannot.

25 Q. Can you tell us when you were interrogated?

Page 2570

1 A. I do not remember.

2 Q. Mr Kuljanin, while you were in Musala, were you

3 interrogated by a commission headed by Madam Jasna

4 Dzuhmur?

5 A. I was not.

6 Q. Did you sign a record of that interrogation while you

7 were in Musala?

8 A. No.

9 Q. I will show you a report for you to verify whether this

10 is your signature. Will you also help me, Mr Usher, to

11 give a copy to the Prosecution and the members of the

12 Trial Chamber?

13 JUDGE KARIBI WHYTE: I hope counsel appreciates the

14 contention of the witness that it was done under duress.

15 MS. RESIDOVIC (in interpretation): Your Honours, this is a

16 different statement that the witness says he never made,

17 and it was taken seven months after the first statement?

18 A. I said that I made that statement in SUP. I did not

19 say that I had not made it. I said that I made it in

20 SUP, Konjic.

21 Q. Will you please look at it? Is that it?

22 A. I don't remember.

23 JUDGE JAN: I did not follow what SUP is.

24 MS. RESIDOVIC (in interpretation): The police, your Honour.

25 It is the police.

Page 2571


2 MS. RESIDOVIC (in interpretation): MUP. One is the

3 Ministry of Internal Affairs; the other is the

4 Secretariat of Internal Affairs. Before it was called

5 the Secretariat of Internal Affairs. Later the name

6 was changed to the Ministry of Internal Affairs. SUP

7 is the acronym for the first and MUP for the second

8 name.

9 Mr Kuljanin, have you looked? Is what you stated

10 during that interrogation correct?

11 A. I do not remember.

12 Q. Mr Kuljanin, you do not recall the correctness of the

13 statement that you made. Therefore, Mr Kuljanin, it is

14 possible that that statement is correct, only you do not

15 remember?

16 A. It may not be correct.

17 Q. You also do not recall exactly because of your previous

18 experiences in Celebici?

19 A. That I can never forget. What I went through in

20 Celebici I can never forget.

21 Q. Will you tell me whether this is your signature?

22 A. It is.

23 Q. Thank you. For the record, please let us note that in

24 the statement of January 23rd 1993 he identified his

25 signature and thereby this document, and I tender it as

Page 2572

1 evidence.

2 A. This was not a legal court in Konjic, at least not for

3 me.

4 Q. Mr Kuljanin, will you please answer whether yesterday,

5 asked by my learned colleague, the Prosecutor, you said

6 that you were not the subject of any court proceedings?

7 A. That is true. I do not remember having been sentenced

8 in any way.

9 Q. Is it true what you say today, that you did make a

10 statement before the police, contrary to what you said

11 yesterday in answer to my learned colleague?

12 A. Yes, but I don't know what police that was, what law it

13 stood for, who it represented.

14 Q. Thank you, Mr Kuljanin. That police was working in

15 Konjic?

16 A. Yes, but at that time any shepherd even could have

17 questioned me. Anyone could pick me up and take me to

18 the SUP to question me.

19 Q. I should like to ask a representative of the Registry to

20 give me the number of the exhibit, please, that we have

21 tendered?

22 A. That is no evidence, madam. Let me say that again.

23 I had to put down whatever I had to. I didn't make a

24 single statement voluntarily. Everything was made

25 under duress.

Page 2573

1 Q. Your Honours, will you please caution the witness to

2 answer my questions, and I haven't put a single question

3 to him yet?

4 THE REGISTRAR: It is number D/19.

5 JUDGE KARIBI WHYTE: I do not know. What are you

6 tendering it for? What are you tendering this other

7 statement for? What are you tendering it for?

8 MS. RESIDOVIC: Because the witness stated that he made this

9 statement, that he signed this statement, and because

10 the defence will be establishing the facts which are

11 contained in this statement.

12 JUDGE KARIBI WHYTE: But you do not tender a statement

13 which is contested not to be voluntary except you

14 establish its voluntariness.

15 MS. RESIDOVIC (in interpretation): Your Honours, the

16 witness recognised as a statement that he made in the

17 police and which he signed.

18 JUDGE KARIBI WHYTE: Yes, he said so, but he stated it was

19 under duress. If you want, that statement has to be

20 tried to determine whether it was under duress or not.

21 That is a preliminary issue in that regard.

22 JUDGE JAN: At this stage you only want to show that this

23 document bears his signatures.

24 JUDGE KARIBI WHYTE: No, that is not what she said. She

25 said she wanted to tender it as a statement he made.

Page 2574

1 JUDGE JAN: The statement bears his signatures. That is

2 all you want.

3 THE INTERPRETER: Microphone, your Honour, please.

4 MS. RESIDOVIC (in interpretation): Yes.

5 JUDGE KARIBI WHYTE: If he was denying he never made a

6 statement, then the issue whether it was voluntary or

7 not would not have come in, but the moment he contested

8 the voluntariness, it is in issue.

9 MR. ACKERMAN: Your Honours, I would like to join in the

10 tender of the exhibit with my learned colleague.

11 JUDGE KARIBI WHYTE: It will not make any difference to my


13 MR. ACKERMAN: I want to suggest to the court that it may be

14 admissible for a limited purpose, that being admissible

15 as a document bearing upon the credibility of this

16 witness, and therefore it may be considered by the court

17 for the relevancy it has regarding his credibility and

18 only that and not the --

19 JUDGE KARIBI WHYTE: This is more than an issue of

20 credibility. When the voluntariness is in issue, it is

21 a matter which should be tried and determined, whether

22 it was made voluntarily or not. It is not enough

23 merely to challenge it for credibility's sake.

24 MS. RESIDOVIC (in interpretation): Your Honours, I suggest

25 that we note that this is a document on which the

Page 2575

1 witness recognised his signature and the defence will

2 tender it as an exhibit in the later course of the

3 proceedings. Can we accept the identification of the

4 document only in that way?

5 JUDGE KARIBI WHYTE: If he is not denying that he signed

6 this document. He has never denied that.

7 MS. RESIDOVIC (in interpretation): So it is simply a

8 document submitted for the identification of the

9 signature.

10 JUDGE KARIBI WHYTE: I said the witness is not denying that

11 he signed the document. He is not denying that. He

12 is only telling you that he did not do that

13 voluntarily. You do not put in any statement made not

14 voluntarily. This is quite beyond the experience

15 I have. The procedure for doing that is very clear.

16 MS. RESIDOVIC (in interpretation): Your Honour --

17 JUDGE KARIBI WHYTE: I do not see any business for its

18 admission, not one. Even for identification,

19 identification for what? A statement which has already

20 been denied as not being voluntary?

21 MS. RESIDOVIC (in interpretation): Your Honours --

22 JUDGE KARIBI WHYTE: Every common lawyer who is perhaps on

23 your side knows the procedure for treating such a

24 matter.

25 MS. RESIDOVIC (in interpretation): Thank you, your

Page 2576

1 Honours. I can simply say that the witness recognised

2 his signature on this document, because, as you have

3 said, I am not able to use this exhibit for other

4 purposes, and the defence will refer to it later on in

5 the submission of evidence.

6 Mr Kuljanin, let us go back to some other

7 questions, which you probably have some knowledge of.

8 Will you tell me --

9 JUDGE JAN: Excuse me. How will you later on refer to

10 this document unless we know there is a paper on which

11 his signatures exist? How will we refer to this

12 document later on unless there is some sort of marking

13 on this document showing that this is a document on

14 which he admits his signatures? How will you refer to

15 it later on?

16 MS. RESIDOVIC (in interpretation): Your Honours, I did

17 suggest that this document be identified as a document

18 whose signature the witness recognised. There are

19 other signatures on this document, and the defence will

20 be able to call up persons who had taken this

21 statement. In answer to my question, the witness said

22 that he had never made a statement before this

23 Commission. Later on he admitted but under duress.

24 That is why the court has not admitted the document?

25 A. I didn't say that I didn't make it. I said that I

Page 2577

1 didn't remember.

2 Q. But when you saw the document, you recalled that you had

3 made a statement before this Commission. You also

4 remembered that this was your signature, although I had

5 denied it before. For these reasons, as a question of

6 credibility of this witness, I had suggested that this

7 document be accepted for these limited purposes. The

8 Trial Chamber did not agree. I can repeat my proposal,

9 but I think that the decision of the Trial Chamber is

10 clear.

11 JUDGE KARIBI WHYTE: The overriding interests which is a

12 matter of admissibility is based on the voluntariness of

13 the statement. All you are trying to show is that a

14 particular document was signed by him, which is a

15 prelude to actually saying it is a statement made by

16 him. You do not go about things that way. If a

17 question of voluntariness is in issue, you try that

18 voluntariness and satisfy the Trial Chamber that it was

19 made voluntarily. Then it will be admitted.

20 MS. RESIDOVIC (in interpretation): In answer, your Honours,

21 to this question, since there are five other signatures

22 on this document, I will offer it later into evidence as

23 a Defence Exhibit.

24 Thank you, Mr Kuljanin. You also know Gojko

25 Dordic and Ranko Zivak, your neighbours; is that

Page 2578

1 correct?

2 A. Zivak Ranko, no.

3 Q. Do you know Gojko Dordic?

4 A. No.

5 Q. You don't know him?

6 A. No.

7 Q. Thank you. Do you know Sreten Zelenovic?

8 A. I do know him.

9 Q. You know that Sreten Zelenovic was a butcher in Bradina?

10 A. Yes, he had a butcher's shop and cafe.

11 Q. His shop was near the highway?

12 A. Yes, in the centre.

13 Q. For a while, Mr Kuljanin, you worked for Mr Zelenovic;

14 is that correct?

15 A. That is correct.

16 Q. Mr Kuljanin, your father is Stevan and he is an auto

17 mechanic; correct?

18 A. Yes.

19 Q. Is it correct that he was a popular person in that area?

20 A. Yes, he was repairing cars.

21 Q. Is it correct that his nickname was "Vojvoda Vodnik"?

22 A. No, it was "Voda"; in translation "leader".

23 Q. Did he write and perform songs about Serbian national

24 heroes?

25 A. No, that is not true.

Page 2579

1 Q. Mr Kuljanin, let me go back to something I had asked you

2 a little while ago relating to the statement that you

3 gave. Did you state to the Commission, when asked this

4 question, that you turned in your rifle because there

5 was some suspicion that you had stolen some metal

6 armature?

7 A. Which Commission is this?

8 Q. In Celebici?

9 A. I don't remember.

10 Q. Is it true, Mr Kuljanin, that you stopped working for

11 Sreten Zelenovic because he suspected that you stole

12 meat?

13 A. No, I stopped working because there was no work.

14 Q. Just one more question, Mr Kuljanin. Did you in April

15 or May belong to the Army of the Republika Srpska?

16 A. No.

17 Q. So you did not, and you were not a member of any other

18 military?

19 A. I was a member of the JNA. I was there in 1991/92.

20 Q. No, I mean in that period?

21 A. No.

22 Q. And you did not respond to the mobilisation of the

23 Territorial Defence?

24 A. I was not called up.

25 Q. Did you know that it was forbidden by the military

Page 2580

1 authorities to leave the area of Konjic?

2 A. No, I was not aware of that.

3 Q. Mr Kuljanin, I would like to ask you again: Did you

4 personally acquire any weapons?

5 A. No.

6 Q. Did you turn in your weapons to MUP?

7 A. No.

8 Q. Thank you, Mr Kuljanin. I have no more questions.

9 MR. O'SULLIVAN: Your Honours, if I may, just for the sake of

10 clarity, that statement was not tendered as evidence,

11 but it has been marked for identification; is that

12 correct?

13 JUDGE KARIBI WHYTE: Which statement?

14 MR. O'SULLIVAN: The one about which we were discussing.

15 JUDGE KARIBI WHYTE: No, it was not marked.

16 MR. O'SULLIVAN: There is a distinction, is there not,

17 between marking it for identification and having it

18 entered as evidence.

19 JUDGE KARIBI WHYTE: That was not the application, was it?

20 MR. O'SULLIVAN: Well, you refused to enter it as evidence,

21 but it has -- I am asking whether it has been marked,

22 which is a different issue altogether.

23 JUDGE KARIBI WHYTE: If there was an application for

24 identification, obviously it could be. He identified

25 his signature. All right. It can be identified. It

Page 2581

1 cannot be tendered as his statement.

2 MR. O'SULLIVAN: Yes. Can we be told the number that

3 statement has, please? How have you marked that

4 statement for identification.

5 THE REGISTRAR: It is document number D/19A

6 Cross-examination by MR. ACKERMAN

7 JUDGE KARIBI WHYTE: Yes, you may proceed.

8 MR. ACKERMAN: Thank you, your Honour.

9 Good morning, Mr Kuljanin.

10 A. Good morning.

11 Q. My name is John Ackerman. I represent Esad Landzo

12 before the Tribunal. I have, I think, just a very few

13 questions that I want to ask you this morning; okay?

14 A. All right.

15 Q. You recall, do you not, that in April of 1992, while you

16 were living in Bradina, that the traffic between

17 Sarajevo and Konjic was interrupted?

18 A. I remember, yes.

19 Q. And actually there are tunnels at either end of Bradina

20 where the road was blocked and checkpoints were set up;

21 is that correct?

22 A. There were no barricades, but the Muslim army put mines

23 on both ends. One was by the Muslim army and the other

24 one by the local Muslims from the villages of Zukici and

25 others, but there were no barricades, and I don't

Page 2582

1 remember them.

2 Q. Do you remember a checkpoint that was in Bradina itself

3 near Mico's coffee shop?

4 A. No. That was not -- the cafe was not in the centre of

5 Bradina and there was no checkpoint by the Mico

6 restaurant.

7 Q. You do know that some of the residents of Bradina at

8 least had been receiving arms from either the SDS or the

9 JNA prior to the attack on Bradina in May of 1992? You

10 know that, do you not?

11 A. No, I do not know.

12 Q. Although you have told this Tribunal that you did not

13 participate in the defence of Bradina in any way, other

14 inhabitants of Bradina were involved in the defence and

15 actually fired weapons in the course of the war that

16 went on in Bradina for a couple of days; correct?

17 A. No, I don't know that anybody fired from the village of

18 Bradina.

19 Q. Let me ask you if you know a person by the name of Almir

20 Padalovic?

21 A. I know him by sight.

22 Q. You know that at one point in time this person was a

23 guard at Celebici?

24 A. Yes for a period of time, not very long.

25 Q. You know then that there came a time that he left there?

Page 2583

1 A. I don't know when he left. I don't know when he

2 left. I was not a camp commander to know which guard

3 left camp at what time. Only guards who wanted to beat

4 people were there. Those who did not, they were not

5 there. I don't know when he left.

6 Q. Do you know why he left?

7 A. How could I? I don't know.

8 Q. Do you know that he became quite distraught and did you

9 not see him crying after Zjelko Klimenta had been shot,

10 saying that it was his fault and that it was an

11 accidental shooting? Do you not remember that?

12 A. I don't remember him crying.

13 Q. Have you said, I think maybe in your prior testimony,

14 that while you were in Hangar Number 6 that the guards

15 never would enter the hangar during the night-time?

16 A. During the night-time? Sometimes they did. Not very

17 often.

18 Q. You knew, while you were in Celebici, did you not, that

19 Konjic was being shelled?

20 A. I didn't see that.

21 Q. You could not hear the shelling of Konjic?

22 A. I did hear, but I did not see. For you something is

23 worth only if it's seen, not if it's heard.

24 Q. Thank you. I agree with you about that. There came a

25 time when you were transferred to Musala prison, I think

Page 2584

1 on November 17th, 1992; correct?

2 A. Correct.

3 Q. Did you ever see Esad Landzo, Zenga, at Musala prison?

4 A. Maybe two times.

5 Q. Inside or outside?

6 A. Once, one time I saw him inside, and one time I saw him

7 outside. For a while he was detained together with

8 Delic with us.

9 Q. I want to talk to you now about the prisoner Zjelko

10 Cecez. Do you remember that person?

11 A. Yes.

12 Q. You have testified that that person was called out of

13 Hangar 6 by Zenga; correct?

14 A. I don't know who called him out. It was dark. It was

15 1 o'clock in the morning. He was called out and taken

16 out. He was beaten. I heard moans. I did not see

17 it. I heard Zjelko's moans. Four prisoners were then

18 called out to carry him in, and then in the morning and

19 when I woke up he was dead. He was lying close to me

20 and he remained there for two days.

21 Q. So you have no knowledge, as you sit here today, as to

22 either who called him out or who beat him; do you?

23 A. No. I don't know. It was dark.

24 Q. With regard to the prisoner Bosko Samoukovic you have

25 previously said that that beating also took place

Page 2585

1 outside and you wouldn't have been able to observe that

2 either; correct?

3 A. No, I only saw two blows, which he received from Esad

4 Landzo inside the hangar.

5 Q. And you don't know who administered blows outside the

6 hangar, but you do know that he was beaten outside the

7 hangar; correct?

8 A. I don't know if he was being hit behind the hangar,

9 because I know that he was hit in there with the plank,

10 and then later he was taken to the infirmary, where he

11 died.

12 Q. You certainly cannot tell this Tribunal, can you, that

13 he was not beaten after he was removed from the hangar,

14 can you?

15 A. No, I don't recall.

16 Q. You told the Tribunal at the beginning of your testimony

17 that there were three occasions while you were at

18 Celebici where you were beaten in a manner that you

19 characterised as cruelly, bad beatings; correct?

20 A. Yes, correct.

21 Q. You have told us that the first of those was the day you

22 arrived at the camp, on May 27th 1992?

23 A. Yes.

24 Q. That the second of those was the day that the

25 International Red Cross came, August 12th 1992?

Page 2586

1 A. Yes.

2 Q. And the third of those was just before you were

3 transferred to Musala on November 17th 1992?

4 A. Yes.

5 Q. You told us yesterday that there was one time when Esad

6 Landzo kicked you?

7 A. Yes.

8 Q. Can you tell us, in relation to those three severe

9 beatings you have talked about, when that happened?

10 A. I don't recall.

11 Q. Can you give us any kind of an estimate? Was it close

12 to the time you arrived or close to the time you left?

13 A. That was June, July, somewhere around there.

14 Q. Okay. Could I ask the assistance of the Registrar in

15 putting Prosecution Photo Number 30 that we were

16 referring to yesterday or the day before onto the ELMO,

17 so I can have the witness take a look at it, please?

18 (Handed).

19 Do you now see that photograph?

20 A. Yes.

21 Q. Do you recognise that building?

22 A. Yes.

23 Q. Is that Hangar 6 that you were confined in?

24 A. I cannot say exactly that it is Hangar Number 6, because

25 there were a number of hangars. It wasn't just one

Page 2587

1 like this, because there's no number here, but it is a

2 hangar, but I don't know if it's Number 6.

3 Q. Is it like Hangar 6? Does it look like Hangar 6 to you?

4 A. Yes.

5 Q. Assuming for the purposes of your testimony that it is

6 Hangar 6, and I can tell you that it has been so

7 identified, could you take a pointer and to the extent

8 you can, show the Tribunal the three places that you

9 were seated inside Hangar 6?

10 A. (Pointing).

11 Q. Tell me the number of the spot as you point to it. Are

12 you pointing to number one now?

13 A. This is number one and the other two positions I cannot

14 see here.

15 Q. Because they would be against that other wall; correct?

16 A. Correct. Against that wall that you cannot even see

17 here (pointing).

18 Q. I would like you to pay attention to the windows in that

19 photograph. Are they the same as they were when you

20 were there?

21 A. Yes. I think they are the same, but you couldn't see

22 through those windows at all. They were dirty. I

23 don't know. You couldn't see through them.

24 Q. Look at the floor for me and tell me if the floor looks

25 the same?

Page 2588

1 A. Yes.

2 Q. When you were sitting in that hangar in positions 2 and

3 3 that you have described, were you able to look out the

4 opposite windows on the other side of the hangar and see

5 anything going on outside?

6 A. Those windows were not like these windows there. Those

7 windows were not open. Maybe they were open about

8 twice during my stay in the hangar. From position

9 number one, where I sat, I could not see anything.

10 Q. How about from position 2 or 3? Could you see through

11 those windows what was going on outside?

12 A. From position number 2 I also -- I cannot remember

13 seeing anything at all. From position number 3 I also

14 did not see anything. I don't remember seeing

15 anything.

16 Q. Did you see any trucks going by outside through those

17 windows?

18 A. I did not. I heard, though.

19 Q. Your Honour, I would like the usher to assist me in

20 showing the witness a couple of photographs which I have

21 previously showed to the Prosecutor. (Handed) what

22 number is it that is on that document, Mr Registrar?

23 THE REGISTRAR: It is number D7/4.

24 Q. Mr Kuljanin, I am showing you a couple of photographs

25 that have been marked D7/4. My question to you is: Do

Page 2589

1 you recognise anyone in either of those photographs?

2 A. Esad Landzo.

3 Q. Could you point to the person that you have identified

4 as Esad Landzo?

5 A. In camouflage uniform.

6 Q. So you are pointing to the second person from the left

7 in the photograph that is black and white; correct?

8 A. Yes, because he is the only man there, and I pointed at

9 him in camouflage uniform, and the other one is his

10 brother.

11 Q. The photograph on the right, the colour photograph?

12 A. Yes.

13 Q. Which person in that photograph have you identified as

14 his brother?

15 A. The first person here. I think it's his brother,

16 because they look similar. They look quite alike.

17 This photograph where he is wearing a camouflage uniform

18 is not very clear to me, so I cannot identify fully. I

19 don't know if it's him or his brother. I'm not going

20 to say for sure.

21 Q. All right. Thank you?

22 A. You're welcome.

23 Q. Your Honours, I have been informed that there may be

24 some mix-up in the identification of that document.

25 Could I ask the Registrar to repeat that, so I'm certain

Page 2590

1 for the record at least what the identification number

2 is?

3 THE REGISTRAR: For the large photograph the number is D7/4

4 and for the small one in colour the number is D7(a)/4.

5 MR. ACKERMAN: Thank you very much. Your Honour, I would

6 offer those photographs D7/4, D7(a)/4 as photographs

7 that have been identified by this witness and for the

8 persons that he has identified within them. I think

9 the Prosecution has no objection; is that correct.

10 MR. TURONE: No objection, your Honour.

11 MR. ACKERMAN: Thank you. So will they be admitted then,

12 your Honour?

13 JUDGE KARIBI WHYTE: For identification, yes.

14 MR. ACKERMAN: And admitted as exhibits in the case;

15 correct?

16 JUDGE KARIBI WHYTE: What exhibit is this? What is it

17 for?

18 MR. ACKERMAN: Are you looking for a reason why they should

19 be?

20 JUDGE KARIBI WHYTE: Yes, I think so.

21 MR. ACKERMAN: In the first place they have been offered and

22 the prosecution has not objected to their admission, so

23 it is by agreement that they are being admitted.

24 JUDGE KARIBI WHYTE: I should understand why it is.

25 MR. ACKERMAN: In the second place I would suggest to you

Page 2591

1 that they are relevant for a number of reasons. They

2 will become additionally relevant with other witnesses

3 that will testify in the case, but as this witness has

4 told you, Esad Landzo and his brother look very much

5 alike, and that it's very, very difficult for him to

6 distinguish between the two of them, and he even took

7 the position that he did not want to say for certain

8 that the person depicted in the black and white

9 left-hand photo was Esad Landzo, that it could have been

10 his brother.

11 Much of the testimony that this Chamber has heard

12 and will be hearing throughout this case involves

13 persons identifying Mr Esad Landzo as having done

14 certain things. To the extent that those

15 identifications took place at a place other than

16 Celebici, there is the possibility that the witnesses

17 are confusing he and his brother.

18 JUDGE KARIBI WHYTE: Actually this is the first issue of

19 mistaken identity I have heard since we started.

20 A. It may have been confused in the picture, but not in

21 Celebici.

22 JUDGE KARIBI WHYTE: No one has ever suggested that.

23 Perhaps you are introducing it for the first

24 time. That is why I want to be informed why you really

25 want to. I now hear why you want to.

Page 2592

1 MR. ACKERMAN: Thank you, your Honour.

2 MR. TURONE: If I may remind your Honour, although we did

3 not object to the admission of these photographs, there

4 is anyway already in our transcript a stipulation to the

5 identification of Mr Landzo in this trial.

6 MR. ACKERMAN: I fully understand that, your Honour. I'm

7 talking about matters -- I'm sure that the stipulation

8 is with regard to whether or not he was a guard at

9 Celebici. I have no problem with that. I am

10 referring to other misidentification that may have taken

11 place outside Celebici.

12 MR. TURONE: The stipulation we had does not concern only

13 the quality or the person.

14 MR. ACKERMAN: Well, I am certain there is no stipulation

15 before this court that every time a witness identifies

16 Esad Landzo that we have stipulated that that

17 identification is correct. I'm quite certain we have

18 not done that.

19 JUDGE KARIBI WHYTE: Do not be mistaken. I am not fishing

20 at all. I just wanted the Trial Chamber to be sure

21 exactly why those pictures were going in.

22 MR. ACKERMAN: Then I think this matter is at rest and I can

23 go on.

24 JUDGE KARIBI WHYTE: Yes, I think so.

25 MR. ACKERMAN: Thank you, your Honour.

Page 2593

1 Mr Kuljanin, you had told the Trial Chamber in

2 your direct testimony that there came a time when all of

3 your belongings were taken from you; correct?

4 A. Yes.

5 Q. What would those have consisted of? What was taken from

6 you?

7 A. How can I remember? How do I know? Everything was

8 taken away from me. Whatever I had was taken away from

9 me. I don't remember what I had on me. I don't

10 understand these questions.

11 Q. So even though it's your testimony that things were

12 taken from you, you have no idea what those things were?

13 A. I have no idea. How could I know? I had some money.

14 I had something in gold. I had my clothes.

15 Everything was taken away. I had new clothes. I had

16 two jackets that were taken away from me. The fighters

17 of the army of Bosnia-Herzegovina, they didn't have what

18 to wear, so they took my two jackets and put them on.

19 What kind of army is that?

20 Q. So a moment ago you said you couldn't remember what was

21 taken from you and now you have described two jackets?

22 A. Yes, I have described.

23 Q. Some gold?

24 A. Because you repeated the question. That's why I'm

25 explaining it.

Page 2594

1 Q. Some gold was taken from you. What kind of gold?

2 A. Yes. A chain and a ring. Do you want me to tell you

3 how many grams it weighed?

4 Q. Sure.

5 A. I really can't remember. I really don't know how many

6 grams I had in gold. That's rather funny.

7 Q. What else was taken from you?

8 A. My house. My house.

9 Q. I'm talking about having been taken from your person,

10 things you were carrying on your person. What was

11 taken from you?

12 A. Two jackets, tee-shirts, gold and documents, my personal

13 documents. I don't know what else I had by way of

14 documents.

15 Q. Those things were all taken at the time of your arrest

16 in Bradina; correct?

17 A. No, in Celebici.

18 Q. So the BH soldiers took the jackets from you in

19 Celebici?

20 A. Yes.

21 Q. The BH soldiers took the gold from you in Celebici?

22 A. The army of Bosnia-Herzegovina and the Croatian Defence

23 Council, HVO. How do I know who it was exactly?

24 Q. And the personal documents were taken from you in

25 Celebici?

Page 2595

1 A. Yes.

2 Q. By BH soldiers?

3 A. And the HVO.

4 Q. All right. When you were near the end of the

5 examination of the Prosecutor yesterday you were asked a

6 question, and your response to the question was that you

7 could not know because when you were in Hangar Number 6

8 you were forced to sit with your head down.

9 A. It depended on the guard. Mostly we did have to look

10 down at the ground, but what we were interested in, we

11 saw. What we were not interested in we couldn't be

12 bothered to look.

13 Q. Could you demonstrate for the Tribunal, just seated

14 there in your chair, the posture that you would be in

15 and that you were required to be in when you had your

16 head down? Show us what that would look like, if you

17 can.

18 A. I cannot. I'm sitting on a chair. I was sitting on

19 the ground in Celebici. I can't explain it to you

20 sitting on a chair.

21 Q. Your Honours, may he be permitted to leave the witness

22 chair and sit on the ground so we can see the manner in

23 which he was forced to sit at Celebici?

24 JUDGE KARIBI WHYTE: Do you think that is really necessary,

25 for him to repeat that exercise?

Page 2596

1 MR. ACKERMAN: I don't know that it has ever been done in

2 this court, your Honour.

3 JUDGE KARIBI WHYTE: It is not even necessary to be done.

4 MR. ACKERMAN: I think it is very difficult for us to

5 understand what these prisoners could have seen if we

6 can't get a graphic --

7 JUDGE KARIBI WHYTE: We are even not in that environment.

8 MR. ACKERMAN: I am sorry. I did not understand your last

9 --

10 JUDGE KARIBI WHYTE: We are not even in that environment

11 for him to simulate?

12 A. Not Celebici.

13 MR. ACKERMAN: What does the witness mean: "not Celebici"?

14 A. We're not in Celebici now, so that I can explain. You

15 are reminding me of 1992. That was in 1992. If I sit

16 down there, it's as if we're back in 1992. I'm going

17 through the whole experience again.

18 Q. What you are telling me again is that would be painful

19 for you to have to repeat that?

20 A. Yes. It would be painful, and I would recall

21 everything.

22 Q. Then I will not ask you to do it. You have told us --

23 A. Thank you.

24 Q. Mr Kuljanin, on many occasions you have answered

25 questions of all of the examiners, including the

Page 2597

1 Prosecutor, with the response: "I don't remember", and

2 at one point you suggested that because of your

3 confinement and the treatment you received during this

4 war time that your memory is somewhat faulty. Is that

5 a fair characterisation?

6 A. Yes. My memory is not 100 per cent well.

7 Q. I believe that's all I have, your Honours. Thank

8 you.

9 JUDGE KARIBI WHYTE: Thank you very much. Any

10 re-examination?

11 Re-examination by MR. TURONE

12 MR. TURONE: Just two questions, your Honour, in

13 re-examination.

14 We would like to go back for a moment,

15 Mr Kuljanin, to the document which was shown to you by

16 Ms Residovic, the one containing a signature and dated

17 January 1993, the SUP document, let us say. Do you

18 remember in that occasion how many people were there

19 present belonging to the police and questioning you?

20 A. I don't remember, your Honours. Any statement that

21 I signed --

22 JUDGE KARIBI WHYTE: I am not sure this arose out of

23 cross-examination.

24 MR. TURONE: This is stemming from the cross-examination.

25 I wanted just to clarify the number of the people,

Page 2598

1 police people, present in that situation. He says he

2 does not remember anyway.

3 So my second question concerns again the photo

4 number 30, the hangar photo number 30, and I would like

5 this photo number 30 of Exhibit Number 1 to be put on

6 the ELMO again for the witness, please, by the usher.

7 (Handed).

8 Now, Mr Kuljanin, do you see this photo again? Do

9 you see right on the left side, the extreme left side of

10 this photo, on the floor on the extreme side of the

11 photo, do you see a kind of a dark line going along the

12 wall? Do you see it?

13 A. Yes.

14 Q. Can you say what is this line?

15 A. It was a kind of canal, a kind of canal.

16 Q. Was that a covered canal with something or --

17 A. There were some rails on top, like railings and below

18 there was a canal.

19 Q. All right. Thank you very much. This concludes my --

20 JUDGE JAN: Does this arise out of cross-examination, this

21 question which you have just put? I thought it arose

22 out of cross-examination from the last witness.

23 MR. TURONE: This is also coming from the cross-examination

24 of Mr Ackerman, who wanted to show this photo to the

25 witness. Mr Ackerman asked for particular details

Page 2599

1 about the floor and this is why I wanted to get through

2 this open door. This concludes my re-examination, your

3 Honour.

4 JUDGE KARIBI WHYTE: That is all for this witness, is it?

5 MR. TURONE: Yes, your Honour.

6 JUDGE KARIBI WHYTE: Okay. You are discharged now. This

7 is all for you. Thank you very much for your

8 assistance. Thank you.

9 A. Thank you too, sirs.

10 (Witness withdrew)

11 JUDGE KARIBI WHYTE: Now who is your next witness?

12 MS. McHENRY: Your Honour, our next witness would be Miss

13 Sabine Manke, who was an investigator with the Office of

14 the Prosecutor. It would be the witness by which we

15 would seek to introduce the statements of the accused.

16 JUDGE KARIBI WHYTE: That puts us in some difficulties,

17 because you know there is already a motion.

18 MS. McHENRY: Yes, your Honour. If you wanted to hear

19 legal argument before she was called, that would be fine

20 with us.

21 JUDGE KARIBI WHYTE: I think we will proceed with hearing

22 her. At the relevant point when you want to tell her

23 the question, I think the precautions necessary for

24 taking these statements will be an issue. So we will

25 hear argument at that stage.

Page 2600

1 MS. McHENRY: Yes, your Honour. I will just point out

2 maybe, in anticipation of the defence, that with respect

3 to the statements there are, I believe, two, maybe now

4 with something filed yesterday by the defence of Landzo

5 really three, issues.

6 The one issue brought by the defence counsel of

7 Mr Delalic, brought by Mme Residovic, concerns specifics

8 in the exact manner the interview was taken, and I think

9 your Honour is correct that it is appropriate to hear

10 the witness about that issue.

11 With respect to the other issues, all the defence

12 counsel have stipulated as to the authenticity of the

13 recordings and the transcripts and so I don't believe,

14 although this witness -- I may ask her just "what are

15 these?"; and she would say "the tape recordings" or "the

16 transcripts". All the defence counsel have agreed to

17 that.

18 The only issue is going to be the legal issue

19 which arises as to the mention in some of the statements

20 of the co-accused. So if your Honours wanted to hear

21 that particular legal issue first, as I understand it,

22 it is not necessary to hear that witness, because, in

23 fact, all the defence counsel have agreed that the tape

24 recordings and the transcripts -- that the recordings

25 are the correct and authentic transcripts of -- I am

Page 2601

1 sorry -- recordings of what occurred.

2 MR. MORAN: Excuse me, your Honour. A couple of things.

3 First, I don't recall entering in such a stipulation.

4 I asked my lead counsel and he doesn't recall. He may

5 have and I may have and we just don't recall T secondly,

6 based on a ruling from the court earlier this morning on

7 voluntariness, we will be filing either today or

8 tomorrow a request for a hearing based on the

9 voluntariness of Mr Delic's waiver of his right to

10 silence due to some cultural differences on the effect

11 of making a statement. I believe I will have either

12 one or two affidavits attached to that on the

13 voluntariness of that waiver. This may require a

14 hearing with some witnesses before the Trial Chamber.

15 That again is based on the Trial Chamber's Ruling with

16 the last witness and his statement on voluntariness.

17 JUDGE JAN: Would it not be better you reserve objection

18 until we have heard the person who is producing that

19 statement. Maybe the witness can say -- can describe

20 the circumstances under which that statement was

21 recorded?

22 MR. MORAN: Well, Judge Jan, the issue is -- what goes to

23 voluntariness is this. I have been informed by my

24 Bosnian colleagues that the practice in the former

25 Yugoslavia and in the Republic of Bosnia-Herzegovina is

Page 2602

1 that a statement made to an investigating police officer

2 has a very distinct difference and very, very limited

3 admissibility in a later trial, and therefore it would

4 go to the understanding of what the effect of making

5 such a statement is, and that would in turn go to the

6 voluntariness of the waiver of the right to silence.

7 JUDGE JAN: But we will just be talking in abstract

8 terms. Let us first of all find out the circumstances

9 under which the statement was recorded, the assurances

10 of voluntariness given by the person recording the

11 statement, the circumstances where the statement was

12 recorded. Unless we have all these facts, it is very

13 difficult to answer the question which you are raising

14 in the abstract.

15 MR. MORAN: Yes, your Honour. I understand. By the way,

16 there is no allegation that we are making that anybody

17 used thumbscrews or anything like that to get a

18 statement out of Mr Delic.

19 JUDGE JAN: Let us have the full picture about the

20 circumstances in which that statement was recorded.

21 That can only come after we hear the person who recorded

22 the statement.

23 MR. MORAN: That is fine, your Honour. I will be filing

24 something this afternoon or tomorrow morning probably

25 with some affidavits attached. Thank you very much,

Page 2603

1 judge.

2 MR. GREAVES: Your Honour, before this witness gives

3 evidence, there is a motion before the court to the

4 effect that the prosecution have not complied with Rule

5 66(a) in this court.

6 JUDGE JAN: That is again a question of fact, whether it

7 has been complied with or not. That will again be a

8 question of fact.

9 MR. GREAVES: This goes to the heart of whether this

10 Tribunal is going to allow this witness to give evidence

11 or not. The prosecution have not supplied any notice

12 of what evidence this witness is to give. They have

13 supplied notice of the exhibits that this witness is to

14 produce but not the evidence which that witness is to

15 give.

16 The motion that was filed on Monday by all counsel

17 goes to the very heart of the spirit of the laws that

18 this Tribunal -- and the Rules that this Tribunal

19 operates under. I would draw your Honour's attention

20 to the motion that was filed and the argument that is

21 set out there for saying why the prosecution should be

22 prevented from calling this witness. They have failed

23 to honour both in the spirit and in the letter the rules

24 set out by the Tribunal, Rule 66(a), which requires them

25 to give notice of the evidence which their witnesses

Page 2604

1 give, in my submission.

2 JUDGE KARIBI WHYTE: Can we hear Miss McHenry? Let us hear

3 your reaction to Mr Greaves's argument.

4 MS. McHENRY: First my reaction to Mr Greaves's argument is

5 we have fully complied with Rule 66(a). We have given

6 copies of absolutely everything. I find this frankly

7 incredible. All I can think about is that they are

8 making an argument that somehow, because this witness

9 has not made a witness statement, that somehow she

10 cannot testify.

11 I think there is, first of all, absolutely nothing

12 in the Rules which would require the prosecution to make

13 sure that every witness provide a witness statement. I

14 will also point out that they have been told months and

15 months ago that we would introduce all the statements

16 into evidence, and that is why this witness has been

17 called. If there is any doubt about what a witness is

18 going to testify about, either with respect to this

19 witness or in the future, the defence is free to ask

20 us. If there is any confusion, but in particular with

21 respect to this witness, it has been told to all defence

22 counsel, and I do not believe that there can be any

23 representation made in good faith that they did not know

24 that this witness was going to testify about the

25 introduction of the statements.

Page 2605

1 It is also the case, just to be clear -- I have

2 been handed our initial witness list, and it was said,

3 for instance, Miss Manke may testify, if necessary, on

4 chain of custody issues or explanations on how given

5 evidence was obtained. So I find Mr Greaves's argument

6 totally unfounded.

7 I will also just mention with respect to Mr Moran,

8 although I do not believe that it will necessarily

9 affect our proceedings, that if the accused seek to

10 exclude evidence obtained from them, including

11 statements, they are required to do this well prior to

12 trial. That is an explicit rule and it is to ensure

13 that these long hearings don't occur.

14 It is the case that all the accused, and, in fact,

15 one accused did -- Ms Residovic did bring a motion under

16 Rule 73, in which, in fact, she raised some of the exact

17 legal arguments that Mr Moran seeks to raise, which has

18 to do with the proceeding in Bosnia and what may or may

19 not have been done, around whether or not strict

20 compliance with the Rules of Evidence -- whether that

21 was enough, and the Trial Chamber explicitly found that

22 by following the Rules, Rules 42 and 43, the legal

23 arguments were not valid. So I would also, although we

24 can wait to argue those -- I would certainly object to

25 any attempt at this late hour to challenge such -- the

Page 2606

1 admission of these statements.

2 MR. MORAN: Your Honour, in response, Rule 73(c) --

3 JUDGE KARIBI WHYTE: Please let me first hear Mr Greaves,

4 whether there are any outstanding documents which you

5 expect from the prosecution.

6 MR. GREAVES: Yes, indeed there are an awful lot.

7 THE INTERPRETER: Microphone, counsel, please.

8 MR. GREAVES: I am sorry. My fingers didn't get it.

9 There are a substantial number of items that the

10 prosecution have indicated they will not call witnesses

11 and a substantial number of statements which are simply

12 not -- we have no notice at all of what these witnesses

13 are going to say.

14 Can I remind your Honour of this, and I see that

15 Judge Jan has a copy of the very helpful Green Book we

16 have which we use. Article 21(4)(b) of the Statute:

17 "In determination of any charge against the

18 accused pursuant to the present Statute the accused

19 shall be entitled to the following minimum guarantees in

20 full equality:

21 (b) to have adequate time and facilities for the

22 preparation of his defence and to communicate with

23 counsel of his own choosing."

24 It is an essential feature of any just and fair

25 system of law that the prosecution shall provide to the

Page 2607

1 defence notice of the evidence which they intend to

2 call. They have given us no notice whatsoever of the

3 evidence that this witness intends to give. How are we

4 to prepare our defence in those circumstances? Are we

5 to guess at it, look in a crystal ball, look for fairies

6 at the bottom of the garden to tell us? How may we

7 know, if they do not serve evidence upon us, not

8 exhibits? . The copies of transcripts are exhibits.

9 I am talking about evidence. How are we to prepare our

10 case if the prosecution does not even bother to give us

11 notice of what their case is? . That is what I say.

12 That is why I say there has been a substantial, serious

13 and unjust breach of the Article of the Statute. In my

14 submission what they have done is utterly unfair.

15 JUDGE KARIBI WHYTE: Actually, if I understand you

16 correctly, you expect this witness to have made a

17 statement of what the witness is coming to say today.

18 MR. GREAVES: That is precisely it. They refer in their

19 witness list to dealing with issues of continuity, so on

20 and so forth. How are we to know what the evidence is,

21 if we are to meet and challenge it, if we so wish? That

22 is the question I pose. In my submission my learned

23 friend's dismissal of this argument does the prosecution

24 no credit whatsoever.

25 JUDGE KARIBI WHYTE: Let us hear you.

Page 2608

1 MR. MORAN: Just very quickly in response to the argument

2 from Ms McHenry that this is an untimely request on our

3 part, Rule 73(c) says:

4 "The Trial Chamber may grant relief upon a showing

5 of good cause."

6 Our position is that the good cause is the Trial

7 Chamber's Ruling today, not 30 minutes ago, on

8 voluntariness of statements and admissibility of

9 statements, and that is our good cause, judge.

10 JUDGE KARIBI WHYTE: Actually we are not arguing the

11 question of your waiver at this stage, I think. If we

12 were arguing that, we would have known exactly what

13 constitutes good cause for your lateness in applying.

14 The good cause is why you have been late in applying.

15 MR. MORAN: Your Honour, the application becomes -- based on

16 the Trial Chamber's Ruling this morning is what makes

17 the application in our submission a good application.

18 JUDGE KARIBI WHYTE: It is an application which should have

19 been made long before now. It is what you are now

20 relying on, a subsequent Ruling, as a good cause. As

21 I said, we are not talking about that at this stage.

22 MR. MORAN: That is fine, your Honour. I understand what

23 you are saying. Thank you very much.

24 JUDGE KARIBI WHYTE: Yes, Ms McHenry. I thought all

25 counsel is contending is that they know nothing about

Page 2609

1 what this witness is coming to say?

2 MS. McHENRY: Your Honour, I think that is, one,

3 incorrect. Two, I mean, I have already stated what has

4 been in there, and this defence counsel themselves have

5 indicated that they believe that this next witness is

6 going to testify about the statements. I believe, in

7 fact, that has been said in court, but I will point out

8 there is absolutely nothing in the Rules which requires

9 that every witness give a witness statement.

10 To the extent that the defence thinks that there

11 is any confusion, it would be one thing if we sort of

12 refused to make it, but we are not required to make

13 every single witness give a witness statement. Of

14 course, we are not supposed to confuse them or something

15 else. We have acted in entirely good faith. Defence

16 counsel has known, and if there was any question in

17 their mind, any real question, as opposed to playing

18 games to try to not get things in, they could have

19 enquired of us. In fact, I do not believe there is

20 anything in the Rules which requires that we spell out

21 for them in detail every possible thing that a witness

22 might testify to. In fact, I believe that your Honours

23 have already indicated that it is not the case that

24 every witness must give a witness statement. So

25 I believe these arguments are entirely not valid.

Page 2610

1 MR. ACKERMAN: Your Honours, I will not accept the

2 allegation by Ms McHenry that at least what I am doing

3 is playing games and I do not think any defence counsel

4 is playing games and I resent that. The motion that

5 I filed with this court yesterday --

6 MR. GREAVES: Hear! Hear!

7 MR. ACKERMAN: -- asks this court under Rule 73(c) for good

8 cause to extend the time for a filing of the motion to

9 suppress the statement of Esad Landzo.

10 JUDGE KARIBI WHYTE: Actually the motion is not before us

11 here. It is not before us now.

12 MR. ACKERMAN: I don't know where it is. It has been

13 filed, but it seems to me --

14 JUDGE KARIBI WHYTE: Yes, but it is not before us.

15 MR. ACKERMAN: It seems to me it has to be determined before

16 the witness after the witness that is being called comes

17 to the witness statement.

18 JUDGE KARIBI WHYTE: You are speaking about a motion which

19 is not before the Trial Chamber.

20 MR. ACKERMAN: I am suggesting to your Honours it must be

21 brought to the Trial Chamber before the witness after

22 the one the Prosecution is calling now is permitted to

23 testify. I think I have a right to have it heard.

24 JUDGE KARIBI WHYTE: The accused person has the right to be

25 heard, whatever the problems are. He has a right to be

Page 2611

1 heard, but it has to be heard according to the schedule

2 of the Trial Chamber.

3 MR. ACKERMAN: I fully understand that, and I am not arguing

4 with the schedule of the Trial Chamber. What I am

5 suggesting to your Honours, the second witness that the

6 Prosecution intends to call regarding these would be the

7 witness through which the statement of Esad Landzo would

8 be admitted. If I am requesting an opportunity to

9 challenge the admissibility of that statement and move

10 to suppress it, it would seem to me that motion would

11 have to be heard before the court admitted it, or it is

12 of no moment whatsoever.

13 JUDGE KARIBI WHYTE: Well, I suppose when you might have

14 scaled the hurdle of being properly before the Trial

15 Chamber, then it will be heard.

16 MR. ACKERMAN: Thank you.

17 MS. TAPUSKOVIC (in interpretation): Your Honours, the

18 defence of Mr Mucic has submitted two motions linked to

19 this problem and in the hearing of the 23rd April my

20 learned colleague McHenry spoke about this problem and

21 referred exclusively to Article 73(c). That Rule is not

22 questioned by Mr Mucic's defence counsel. We are

23 simply saying that other Rules from the Rules of

24 Evidence and Procedure were not respected when the

25 statements were taken. For those reasons, since the

Page 2612

1 prosecution now intends to bring witnesses who were

2 present, officials of the Office of the Prosecution who

3 were present when the statements were made, we have

4 transcripts from which it can be seen that the rules

5 laid down were not respected.

6 That is why we are asking that those witnesses not

7 be heard before we have a Ruling on legal matters

8 regarding the method in which those statements were

9 taken. This does not only apply to Sabine Manke.

10 I agree with colleague Ackerman. Another witness is

11 due to appear who was present when the accused Landzo

12 was making a statement. The witness following that was

13 present when Mr Mucic gave his statement. Therefore,

14 according to the transcript that we received, we see

15 that the procedure was not respected and that is why we

16 oppose that this way of introducing evidence be

17 accepted.

18 JUDGE JAN: Just a minute. By providing the witness list

19 to the defence did you indicate against this particular

20 witness that she will be proving the statements earlier

21 made by the accused?

22 MS. McHENRY: No, your Honour, we did not.

23 JUDGE JAN: You should have.

24 MS. McHENRY: Had anyone -- we have, in fact, told the

25 defence counsel that within the last several weeks, and

Page 2613

1 that is, in fact, why -- and they, in fact, said: "Could

2 you put it back a little bit?" We did put it back a

3 little bit. There has been no hiding the fact that we

4 were going to get the statements in and that we were

5 going to do it through an OTP investigator, and that

6 within the last month we have told the defence counsel

7 that we are going to call an OTP investigator, and we

8 gave them the name, about this.

9 It was not in the initial witness list, because at

10 that time we thought that they still may agree to it,

11 that they might agree that a witness was not even

12 necessary, but, your Honour, there is nothing in the

13 Rules that requires us to be that specific, particularly

14 when they have made no effort to, in fact, even ask

15 us. This is the first -- I mean, other than the

16 motion, which was so vague that we didn't even know

17 exactly what was being referred to; other than the

18 motion filed by Mr Greaves yesterday, this is the first

19 we have heard about it.

20 If they would like to sort of request something

21 else, they can, but with respect to these witnesses it

22 has been told to defence counsel, even if it was not in

23 the initial witness statement, that these witnesses are

24 going to testify about the statements. In fact, that

25 is why for the last three weeks defence counsel have, in

Page 2614

1 fact, said: "Your Honour, the prosecution is going to

2 call several witnesses in the near future to get these

3 statements in."

4 We gave them their names. I do not believe that

5 there can be any question that this is -- this -- that

6 this is what they are going to refer to. In fact,

7 there is nothing -- the accused have had the statements

8 for months and months and months. In fact, each

9 accused got their statement immediately after having

10 given it. They get a copy of it in a transcript.

11 JUDGE KARIBI WHYTE: Thank you very much. We will come

12 back at noon.

13 MR. GREAVES: Can I just give you have some further

14 information, your Honour, so that you can make a proper

15 decision. I don't know if you have seen the witness

16 list. Have you seen that document?

17 MS. McHENRY: It was filed with the court.

18 MR. GREAVES: Can I just refer you to the phraseology that

19 is used against the name of this particular witness:

20 "OTP investigator, if necessary, on a chain of

21 custody issues".

22 These are the important words:

23 "Or explanations on how given evidence was

24 obtained".

25 Can I remind your Honours of Rule 95 and Rule

Page 2615

1 89. One of the provisions which this court, I think,

2 holds dear to itself:

3 "No evidence should be admissible if obtained by

4 methods which cast substantial doubt on its reliability

5 or if its admission is antithetical to and would

6 seriously damage the integrity of the proceedings."

7 I stress the word there "obtained." The

8 prosecution says that they are not obliged to give us

9 any indication of how this evidence was obtained. In

10 my submission, if we are to exercise our rights under

11 Rule 95 and Rule 89, we are entitled to notice of those

12 issues. If we cannot do that, we shall be asking for

13 an adjournment so that we can properly prepare our

14 case. That is what the damage is that is going to be

15 done, that the court is going to have its time wasted if

16 the Prosecution do not comply with the rules.

17 JUDGE KARIBI WHYTE: Thank you very much, Mr Greaves. What

18 I have heard from all the arguments, I suppose the

19 moment the witness gets on to the stand you might be

20 able to stop putting it to her.

21 We will come back at 12.

22 (11.35 am)

23 (Short break)

24 (12.00 noon)

25 KARIBI WHYTE: Good afternoon, ladies and gentlemen. We

Page 2616

1 have considered the arguments. The Trial Chamber is of

2 the view that we can carry on except the defence thinks

3 that it is impossible that they can follow the

4 arguments, but I think we can carry on.

5 MR. O'SULLIVAN: Your Honour, there is one other motion that

6 was filed with you, which you have, which was not

7 discussed before the break, and that is the motion by

8 the defendant Delalic requesting a hearing to exclude

9 evidence. In that regard --

10 JUDGE KARIBI WHYTE: Actually we have not discussed any

11 motions today.

12 MR. O'SULLIVAN: The motion is before you, your Honour. It

13 is entirely directed to the next witness. That is why

14 I wish to address it now and have your --

15 JUDGE KARIBI WHYTE: When was that filed?

16 MR. O'SULLIVAN: Yesterday.

17 JUDGE KARIBI WHYTE: Do you know anything about this?

18 Professor O'Sullivan, I have just seen it.

19 I think it must have been lying on my table. I did not

20 notice it. We can take the arguments any time it

21 becomes relevant. We can take it. I said we can take

22 up arguments on your motion any time it becomes

23 relevant.

24 MR. O'SULLIVAN: Thank you, your Honour. I submit the time

25 is relevant. Now is the time to deal with this.

Page 2617

1 JUDGE KARIBI WHYTE: I have not said that. We will start

2 with the witness.

3 MR. O'SULLIVAN: Your Honour, it will be too late if the

4 witness is heard.

5 JUDGE KARIBI WHYTE: Why not? Because the objections you

6 are raising there will arise before the witness.

7 Unless the witness is called, it may not be able to go

8 forward.

9 JUDGE JAN: Apart from that, Professor O'Sullivan, if at

10 any stage we find that the safeguards which are there

11 for the accused have not been complied with, have not

12 been given, we can at any stage exclude that from

13 consideration. Why hold it up at this stage? Let us

14 see in which circumstances the statement was recorded

15 that the prosecution wants to produce before us. You

16 see, any statement by an accused person is admissible

17 provided what they call in England the Judges' Rules

18 have been complied with. If the safeguards provided in

19 the Statutes or our Rules have not been complied with,

20 we can at any stage exclude it from consideration.

21 JUDGE KARIBI WHYTE: It could not be tendered until those

22 were complied with.

23 JUDGE JAN: We want to know the circumstances under which

24 those statements were recorded.

25 MR. O'SULLIVAN: I fully understand your point, your

Page 2618

1 Honour. My point is what we are holding is something

2 akin to a voir dire on admissibility of evidence. Our

3 submission is we should be allowed to present our

4 evidence, call our witnesses in a trial within the

5 trial.

6 JUDGE JAN: You will have the opportunity of producing your

7 witnesses when -- we will first of all see the

8 circumstances in which that statement was recorded.

9 Otherwise we are just talking in the abstract.

10 JUDGE KARIBI WHYTE: I hope you are familiar with this type

11 of procedure. Now when the witness comes in and claims

12 to tender a statement, then you have the right to object

13 and ask questions how it should be tendered. At any

14 stage all the factors relevant to its admissibility will

15 be raised and then if they are unable to scale that

16 argument, that statement cannot be admitted.

17 MR. O'SULLIVAN: I follow you completely, your Honour. The

18 question and the problem is this: that to object to its

19 admissibility may require the defence of Delalic to call

20 witnesses.

21 JUDGE JAN: At this stage?

22 MR. O'SULLIVAN: Yes. We are asking under Rule 89(b) that

23 you hold a hearing akin to a voir dire.

24 JUDGE JAN: First, having taken the witness, you can object

25 to the evidence and show that the statement of the

Page 2619

1 accused is not admissible in evidence. Why at this

2 stage do you want to lead evidence?

3 MR. O'SULLIVAN: Part of making that showing will involve

4 calling witnesses on behalf of the defence. Time is

5 needed to make arrangements for travel, to have those

6 people here to make that showing, to issue subpoenas.

7 JUDGE KARIBI WHYTE: You have not shown it is necessary at

8 this stage. We do not know yet. Let us hear the

9 witness and then we will know what the witness has

10 done. That will lead us into determining whether that

11 should be necessary.

12 JUDGE JAN: I am sure you are aware of the Judges' Rules

13 apart from our own Rules here with regard to statements

14 made by the accused on earlier occasions, although

15 Mr Greaves did have a point: the prosecution should

16 have indicated in the list of witnesses that this

17 witness was to prove these statements. You are quite

18 right.

19 JUDGE KARIBI WHYTE: When I initially referred to

20 Mr Greaves, I knew except he makes that concession, it

21 might not be right to go forward, because there is a

22 point that he ought to be aware and prepare for whatever

23 is coming in. It is a witness who is coming and he

24 should know.

25 MS. McHENRY: Your Honour, we do not dispute that at all.

Page 2620

1 I will just also, while listening to this witness, I

2 will remind the court that there was a decision on 9th

3 October 1996 with respect to the first interview. The

4 prior Chamber heard evidence or reviewed the transcripts

5 and made certain findings about compliance with the

6 Rules.

7 Anyway, the prosecution now calls Miss Sabine

8 Manke.

9 MS. SABINE MANKE (sworn)

10 Examined by MS. McHENRY.

11 MS. McHENRY: May the witness be seated?

12 JUDGE KARIBI WHYTE: Yes, you can sit.

13 A. Thank you.

14 MS. McHENRY: Ma'am, would you please state your full name?

15 A. My name is Sabine Manke.

16 Q. How are you employed at the present time?

17 A. I work for the Office of the Prosecutor as investigator.

18 Q. Prior to working for the Office of the Prosecutor how

19 were you employed?

20 A. I was a detective with the German Federal Police Force.

21 Q. As part of your work within the Office of the Prosecutor

22 have you been involved in investigation into crimes

23 alleged to have been committed in the Celebici camp?

24 A. Yes, I have.

25 Q. Can you tell us whether or not as part of the

Page 2621

1 investigation there were interviews of the accused?

2 A. Yes, all four accused were interviewed.

3 Q. Do you have information concerning the manner in which

4 these interviews were conducted?

5 A. Yes, I do have information, since I participated in some

6 of the interviews, I monitored some of them and I have

7 read all the statements that were given by the accused

8 to the OTP.

9 Q. Going to the accused, Mr Delalic, can you tell us when

10 he was interviewed and where?

11 A. Mr Delalic was interviewed on 18th and 19th March 1996

12 in Munich, in the premises of the Bavarian Police.

13 Q. Okay. Who interviewed him?

14 A. It was myself and Mr Ole Hortemo, an investigator with

15 the Office of the Prosecutor.

16 Q. Was Mr Delalic interviewed at any other time?

17 A. Mr Delalic was also interviewed on 22nd and 23rd August

18 1996 in the Scheveningen prison.

19 Q. In either of those occasions did Mr Delalic have

20 counsel?

21 A. No, not on the first interview, but on the second

22 interview, which was taken in Scheveningen.

23 Q. With respect to the first interview, did Mr Delalic

24 request counsel?

25 A. No, he waived his right. We asked him whether he

Page 2622

1 wanted to be assisted by a counsel, but he waived his

2 right.

3 Q. Okay. With respect to the interviews of Mr Delalic,

4 can you briefly describe the procedure that was followed

5 for the interviews?

6 A. Mr Delalic was read out the Rules of Procedure of the

7 Office -- of the Tribunal, paragraph 42 and 43. He was

8 informed of his right to remain silent. He was

9 informed of his right to be assisted by a counsel. He

10 was -- the interview was video-recorded and audiotaped

11 and he was asked at the end whether he wished to add

12 anything.

13 Q. With the assistance of the usher, I would like to have

14 certain items marked for identification purposes?

15 JUDGE ODIO BENITO: Sorry. In what language did you

16 interview Mr Delalic?

17 A. Mr Delalic was -- I conducted the interview in English

18 and we had an interpreter present who translated into

19 Serbo-Croatian and back into English.

20 MS. McHENRY: These have also previously been provided to

21 defence counsel. Possibly if the binder could be

22 marked first, that can be then shown to the witness,

23 while the other exhibits continue to be marked: am I

24 correct that the binder is Prosecution Exhibit 99 for

25 identification purposes?

Page 2623

1 THE REGISTRAR: Yes, that is correct.

2 MS. McHENRY: Showing you what has been for identification

3 purposes marked as Prosecution Exhibit 99, Miss Manke,

4 do you recognise that, and, if so, would you please tell

5 us what it is?

6 A. Yes, I do recognise it. It's a binder containing the

7 English transcript of the interviews of Mr Delalic in

8 Munich on 18th and 19th March 1996. Furthermore it

9 contains the Serbo-Croatian transcript of the interview

10 of Mr Delalic in Munich on 18th and 19th March 1996.

11 It comprises the addenda made by Mr Delalic on 22nd July

12 1996 as well in Serbo-Croatian as in English.

13 It contains under point number 4 the addendum made

14 by Mr Delalic on 10th September 1996 in English. It

15 contains the English transcript of the interview of

16 Mr Delalic conducted in Scheveningen on 22nd and 23rd

17 August 1996. It also contains the Serbo-Croatian

18 transcript of the interview of Mr Delalic conducted in

19 Scheveningen on 22nd and 23rd August 1996. It also

20 contains the exhibits that were shown to Mr Delalic

21 during the interview on 22nd and 23rd August 1996.

22 Q. Can you describe in a little more detail the

23 circumstances surrounding Mr Delalic's first interview

24 in March of 1996?

25 A. Mr Delalic was arrested by the German Police on the

Page 2624

1 basis of an arrest warrant that was issued by a German

2 court. The German court followed a request made by the

3 Office of the Prosecutor under Rule 40. When arrested

4 by the German police officers, Mr Delalic was asked

5 whether he was willing to talk to the investigators from

6 the Office of the Prosecutor. Mr Delalic agreed to

7 that.

8 So he was brought to a room which was made at the

9 disposal -- at our disposal by the Bavarian Police. In

10 this room we had video and audio equipment, which we

11 operated ourselves. The entire interview was video and

12 audiotaped, and in the video camera we had tapes of 45

13 minutes. In the audio equipment we had tapes of 30

14 minutes, which resulted in the fact that we had frequent

15 breaks during the interview, or interruptions.

16 Q. Going back in more detail, and you may refer to the

17 transcript if you need to, can you tell us exactly at

18 the beginning of the interview what Mr Delalic was

19 advised of?

20 A. Mr Delalic was informed about his rights according to

21 Rule 42. He was then asked whether he was willing to

22 conduct this interview without defence counsel.

23 MR. O'SULLIVAN: Objection. She is testifying from a

24 document that has not been tendered as evidence yet.

25 MR. GREAVES: The witness appears to be looking at a folder

Page 2625

1 and refreshing her memory from a folder. May we know

2 what these documents are from which she is refreshing

3 her memory? That ought to be established. It is a

4 cardinal rule of evidence that a witness must give

5 evidence from their own memory unless given leave by the

6 court to refresh their memory.

7 JUDGE KARIBI WHYTE: I think the witness said at the

8 beginning she was a party to the interrogation. You

9 were one of those who interrogated?

10 A. That is right.

11 JUDGE KARIBI WHYTE: Then why can you not remember what you

12 did at this stage?

13 A. I will remember as to my best memory.

14 JUDGE KARIBI WHYTE: You can rely on that.

15 MR. GREAVES: I am not objecting to her refreshing her

16 memory. She can certainly do so. She should do it,

17 if she can, from memory.

18 If she seeks your Honour's assistance saying:

19 "Please can I refresh my memory?", I have no objection

20 to that. I am just bothered by her looking at

21 documents which we have not knowledge of what those

22 documents are and using to refresh her memory. I am

23 not trying to be difficult but it is important the thing

24 should be done properly.

25 MS. McHENRY: Maybe I can clarify. I think it was because

Page 2626

1 I was maybe improperly asking the witness to remember by

2 heart all of Rule 42, which I think is a little much for

3 anyone.

4 Let me just ask you, ma'am: was Rule 42 read to

5 Mr Delalic in its entirety?

6 A. Yes, it was.

7 Q. Does that -- from that may we understand that he was

8 informed that he had the right to be questioned in a

9 language he speaks and understands?

10 A. Yes.

11 Q. That he had the right to be assisted by counsel of his

12 choice, or to have legal assistance assigned to him

13 without payment if he did not have sufficient means to

14 pay for it?

15 A. Yes.

16 Q. The right to have the free assistance of an interpreter,

17 if he does not understand or speak the language to be

18 used for questioning?

19 A. Yes.

20 Q. And, in fact, was there an interpreter?

21 A. Yes, there was an interpreter.

22 Q. Okay. Was Mr Delalic informed of his right to remain

23 silent?

24 A. Yes, he was.

25 Q. Was Mr Delalic cautioned that any statement he made

Page 2627

1 would be recorded and could be used in evidence?

2 A. Yes, he was.

3 Q. Was he informed that the questioning of himself could

4 only proceed without the presence of counsel if he

5 voluntarily waived his right to counsel?

6 A. Yes.

7 Q. Was he asked if he understood his rights?

8 A. Yes, he was.

9 Q. Did he indicate whether or not he was willing to conduct

10 an interview without defence counsel being present?

11 A. Yes.

12 Q. Was he advised that if at any point he changed his mind,

13 he could just indicate that and the interview would be

14 stopped?

15 A. Yes.

16 Q. Did he indicate whether or not he was willing to give an

17 interview and answer questions?

18 A. Yes.

19 Q. Was he also advised of Rule 43, which deals with

20 recording of the interview?

21 A. Yes, he was.

22 Q. Was he asked whether or not he had any questions

23 regarding the Rules?

24 A. Yes.

25 Q. Did he have any questions?

Page 2628

1 A. No.

2 Q. Okay. Ma'am, have you reviewed the recording -- excuse

3 me.

4 Let me now move forward a little bit and ask that

5 the witness be shown the other exhibits that have been

6 marked for identification purposes only. I think it

7 would be best to give the witness all the exhibits and

8 then she can use the number and identify what they

9 are.

10 Actually, ma'am, before we go on to that, I am now

11 going to go forward to Mr Delalic's -- no, I am sorry.

12 Could you please with respect to the March 1996

13 interview -- can you identify any of the items marked in

14 front of you as relating to the March 1996 interview

15 and, if so, would you please identify them by giving the

16 number that the Registrar has given them and telling us

17 what they are?

18 A. Uh-huh.

19 Q. I am sorry. Are they marked individually or not? Does

20 the item itself reflect what it is? If so, could you

21 just mark it -- could you just identify what -- any

22 items you have in front of you that relate to the March

23 1996 interview?

24 A. Uh-huh. First of all, there are three videotapes

25 containing the recording of the interview of Mr Delalic

Page 2629

1 on 19th March in Munich. There are three videotapes

2 containing the interview with Mr Zejnil Delalic on 18th

3 and 19th March 1996.

4 Q. Are those copies of the original videotapes?

5 A. These are copies.

6 Q. Yes, ma'am.

7 A. There are seven original videotapes containing the

8 interview of Mr Zejnil Delalic on 18th March 1996.

9 There are, furthermore, five audiotapes containing the

10 interview with Mr Zejnil Delalic on 18th March 1996 in

11 Munich, and there are three audiotapes containing the

12 recording of the interview of Mr Delalic in Munich on

13 19th March 1996.

14 Q. Okay. So am I correct, ma'am, of what you have

15 identified, there is both the original recordings as

16 well as a copy just for the court's convenience?

17 A. Yes, that is correct.

18 MR. MORAN: Excuse me, your Honour. Not wanting to be

19 picky, but if we could identify which Exhibit Number

20 goes with what it is, just so that the record is clear

21 at a later point.

22 MS. McHENRY: Yes. I believe that is my fault. I had a

23 miscommunication with the Registrar. I think we will

24 have to have them marked. Counsel is entirely

25 correct. Could I have what the witness -- Mr Usher,

Page 2630

1 could you please give what the witness has just

2 identified to the Registrar so it can be marked?

3 Ma'am, have you reviewed the recording and the

4 transcripts of Mr Delalic's March 1996 interview?

5 A. Yes, I have.

6 Q. Okay. Are they a full and fair recording of your

7 interview?

8 A. Yes, they are.

9 Q. Were any parts of the interview not recorded?

10 A. No.

11 Q. When there was a break in the questioning, was the fact

12 and time of the break recorded?

13 A. In principle, yes.

14 Q. Okay. Can you explain exactly what you mean by "in

15 principle"?

16 A. Well, as I mentioned before, we have -- had frequent

17 interruptions during the course of the interview,

18 because we had to change the tapes frequently, and there

19 were on some occasions it occurred that this was not

20 announced and the tape just broke off, but either on the

21 video recording or on the audio recording it is marked

22 that the interview was stopped and afterwards when we

23 started the interviewing again, this was mentioned, the

24 fact was mentioned. On two occasions, however, this

25 did not happen and -- however you can calculate from the

Page 2631

1 time that elapsed in between that just the tape was

2 changed.

3 Q. Was there any part of the questioning not recorded in

4 either the video or the audio? We understand that

5 sometimes part of it might have been cut off in one

6 versus the other, but was there any questioning that

7 occurred that is not recorded on either the video or the

8 audiotape?

9 A. No, on no occasion.

10 Q. Okay. At the conclusion of the interview what was done

11 with the recordings?

12 A. At the conclusion of the interview the recordings were

13 sealed in the presence of the accused and the tapes were

14 then, once back here in The Hague, copied and the copy

15 was given to the defence. Transcripts were done as

16 well and a copy of the transcript was given to the

17 defence.

18 Q. Okay. Prior to the interview in March being concluded,

19 was the accused asked whether or not he wished to add

20 anything to the interview?

21 A. Yes, he was asked.

22 Q. Okay. After -- are you aware of whether or not after

23 the defence was provided copies of the tape and

24 transcripts Mr Delalic made any corrections or

25 modifications?

Page 2632

1 A. Yes. There were on two occasions we received a letter

2 by Mr Delalic indicating that he wished to correct.

3 Q. Is that contained in Prosecution Exhibit 99?

4 A. You mean the binder?

5 Q. Yes, ma'am?

6 A. Yes, it is.

7 Q. Okay. Going, now, ma'am, to the 22nd and 23rd August

8 1996 interview, did you participate or monitor that

9 interview?

10 A. I did not participate. However, I monitored the

11 interview in a room next to the room where the interview

12 was conducted.

13 Q. On that occasion did Mr Delalic have counsel?

14 A. Yes, he was assisted by counsel.

15 Q. Was the same procedure followed in that the Rules were

16 read to him and he was -- was the same procedure with

17 respect to the reading of the Rules and the asking of

18 him whether or not he understood them followed?

19 A. Yes, it was.

20 Q. Okay. Was the same procedure followed with respect to

21 at the conclusion of the interview, Mr Delalic and his

22 counsel being asked if they wished to add anything?

23 A. Yes.

24 Q. At the conclusion of that interview was Mr Delalic

25 and/or his counsel provided a copy of the recording of

Page 2633

1 the interview?

2 A. Yes.

3 Q. Have you reviewed the recording and the transcripts of

4 Mr Delalic's August interview?

5 A. Yes.

6 Q. Are they a full and fair recording of the August

7 interview?

8 A. Yes, they are.

9 Q. If I could try once again with the usher's assistance to

10 correctly have the tapes marked and identified.

11 Ma'am, could you just please identify the exhibits

12 that have been shown to you that have been marked for

13 identification purposes by giving the number and saying

14 what they are. If it is easier, you can just do them

15 as they are in front of you?

16 A. Yes. First of all there is an envelope containing 7

17 video cassettes with the interview of Mr Zejnil Delalic

18 on 18th March 1996.

19 Q. What is the number?

20 A. It's marked as 99 -- Exhibit Number 99(b).

21 Q. Thank you.

22 A. There's another envelope marked as Exhibit Number 99(d),

23 containing three videotapes with the recording of the

24 interview of Mr Delalic on 19th March in Munich.

25 Q. Okay. Are these the originals of the videotapes?

Page 2634

1 A. These are the originals of the videotapes.

2 Q. Yes, ma'am.

3 A. Marked as Exhibit Number 99(c) is an envelope containing

4 five audiotapes, containing the interview of Mr Zejnil

5 Delalic conducted on 18th March 1996. There is another

6 envelope marked as Exhibit Number 99(a), containing

7 three audiotapes with the recording of the interview of

8 Mr Zejnil Delalic on 19th March 1996 in Munich. Also

9 both envelopes contain the originals. There are two

10 more envelopes containing copies of the originals of the

11 interview.

12 Q. I am sorry. Could you just clarify?

13 A. I'm sorry?

14 Q. Please clarify.

15 A. There is one envelope containing the Delalic interview

16 of August 1996, marked Exhibit Number 99(e).

17 Q. Is that the original?

18 A. This is the original.

19 Q. Yes, ma'am?

20 A. There is a second envelope containing the original

21 videotapes of the interview of Mr Delalic in August

22 1996, marked as Exhibit Number 99(f). The copies are

23 unmarked.

24 THE REGISTRAR: The copies have still not been marked and

25 will be depending on the number to which they

Page 2635

1 correspond, the number of the original.

2 MS. McHENRY: I think the issue is that they may not

3 correspond exactly to the originals, because the

4 originals were only shorter tapes and they were copied

5 into longer tapes, so I would ask, if possible, that

6 even the copies be given their own number, and I believe

7 it will be easier to use the copies then and keep the

8 originals in their envelope.

9 THE REGISTRAR: I am doing that immediately.

10 A. In front of me are copies of audio tapes marked as

11 exhibit Number 99(g), which contain the interview of

12 Mr Delalic conducted in Munich in March 1996.

13 MS. McHENRY: Thank you?

14 A. The copies of the videotapes of the interview of

15 Mr Delalic conducted in March 1996 are marked as Exhibit

16 Number 99(h). The copy of the videotape of the

17 interview of Mr Delalic conducted in March -- on 19th

18 March 1996 is marked as 99(i).

19 Q. Just so the record is clear, that is 99(i) you just

20 stated?

21 A. Yes.

22 Q. Your Honours, at this time the Government -- excuse

23 me. Old habits die hard.

24 Your Honour, at this time the prosecution would

25 tender into evidence --

Page 2636

1 A. There's more.

2 Q. Oh, I am sorry?

3 A. There are four more tapes marked as Exhibit Number

4 99(j), containing the interview with Mr Zejnil Delalic

5 on 22nd August 1996, and there are two more tapes,

6 copies of the videocassettes containing the interview

7 with Mr Zejnil Delalic on 23rd August 1996, marked as

8 Exhibit Number 99(k).

9 Q. May I ask the Registrar whether or not all the exhibits

10 have been marked and identified at the present time?

11 A. Yes.

12 Q. Okay. Your Honour, at this time the prosecution would

13 tender into evidence all the interviews -- all the

14 exhibits that Miss Manke has identified. We would note

15 at the present time that we are seeking their

16 admissibility. We are not asking for a Ruling that any

17 statements contained therein referring to co-accused,

18 that that is admissible against the co-accused. We

19 believe that is an issue that your Honours can decide at

20 the end of the case. At the present time we are only

21 asking that they be admitted into the present -- into

22 evidence, that they be considered evidence against the

23 accused making the statement, and that the court may

24 reserve Ruling on the extent to which, if any, any

25 statements made by Mr Delalic could be considered

Page 2637

1 against his co-accused?

2 JUDGE JAN: I just want to find out: the videotapes are

3 without sound or --

4 MS. McHENRY: No, your Honour, I am sorry. The videotapes

5 have both sound and picture. They are

6 audio/videotapes. The audiotapes only have audio.

7 They are really meant to serve as a back-up.

8 JUDGE KARIBI WHYTE: Let us hear any objections.

9 MR. O'SULLIVAN: The defence to Mr Delalic objects on two

10 grounds. First of all, Rule 43 has not been

11 respected. By this witness's own admission there are

12 at least two irregularities on the manner in which the

13 recording of Mr Delalic's statement in Munich was

14 taken. The second basis for objection goes to

15 voluntariness. Under Rule 92 the burden is on the

16 accused to show that it was not voluntary. At this

17 point the burden is on us. We have not had an

18 opportunity to --

19 JUDGE KARIBI WHYTE: Let us say the first one --

20 MR. O'SULLIVAN: Rule 92. For those two reasons.

21 JUDGE KARIBI WHYTE: I think it is for the prosecution to

22 show that there was no inducement offered to him. He

23 was not compelled. He made this statement voluntary.

24 MR. O'SULLIVAN: There has been no evidence adduced to show

25 that his consent was informed, given Mr Delalic's

Page 2638

1 cultural and social background, up against a legal

2 system whose procedures are completely foreign to him in

3 an International Criminal Tribunal. That has not been

4 shown at all. A mere recital of the Rules, 42 in

5 particular, in my respectful submission does not

6 suffice. For those two reasons under Rule 95 there is

7 considerable doubt cast upon the reliability of these

8 statements. On that basis we object to this.

9 JUDGE JAN: Why do you not reserve your objections until

10 you cross-examine the witness, because both are based on

11 facts and you have to get something to allow the witness

12 to support your argument.

13 MR. MORAN: Your Honour, Tom Moran for Hazim Delic.

14 So the record is clear, I understand that the

15 prosecution is offering these exhibits for the limited

16 purpose of evidence against Zejnil Delalic and not

17 against Hazim Delic. With that proviso, because of the

18 limitation on the offer, we have no objection, but if

19 there is any -- if it is going to be used for any other

20 purpose, we do have several objection to it.

21 JUDGE KARIBI WHYTE: Actually the type of objection one

22 expects now is the procedure for taking the statements,

23 the making the statements, is it not? That is the

24 relevant objection at this stage.

25 MR. GREAVES: Your Honour, what I understood my learned

Page 2639

1 friend for the prosecution to say was this: the issue of

2 whether or not these statements should be admissible,

3 not just against the maker of the statement but as

4 against co-defendants, is one that can safely be left to

5 the end of the case. I want to address you about

6 that. If it transpires that you rule that these

7 statements may be admissible against the co-accused as

8 well as the maker of the statement, that may well have a

9 significant effect on the way in which I would want to

10 conduct this case for the rest of the eyewitness

11 evidence, and if you do not rule on it now, you are

12 going to be tying both my hands round behind my back, if

13 I do not know what the position is that you are going to

14 take on the admissibility against co-accused.

15 It is not right to leave it to the end of the case

16 to decide that issue. I invite the court to hear the

17 motion that was filed on 14th May on this very -- 14th

18 April on this very subject before that issue is

19 determined, so that we know, all defence counsel know,

20 where they stand in relation to the admissibility

21 against their own lights and someone else's statement.

22 JUDGE JAN: It is a pure question of law whether the

23 statement of co-accused is admissible in evidence.

24 MR. GREAVES: Yes.

25 JUDGE JAN: A statement not in oath can be used as a

Page 2640

1 statement against a co-accused.

2 MR. GREAVES: Whether or not it is a statement that can be

3 used against a co-accused. It is a pure question of

4 law.

5 JUDGE KARIBI WHYTE: There are certain conditions where

6 they might be admissible.

7 MR. GREAVES: We have need to know what they are so we can

8 conduct our case from here on in. Now you are going to

9 have this evidence, we need to know so that we can

10 approach each witness as they come in the knowledge of

11 what we are doing, because it may have a significant

12 effect on the amount of cross-examination that is to

13 take place.

14 JUDGE KARIBI WHYTE: Prima facie they are not admissible

15 against the co-accused, except the co-accused knew about

16 it and was not objecting to it.

17 MR. GREAVES: Or unless he goes into the witness box and

18 adopts it for himself.

19 JUDGE KARIBI WHYTE: Those are the conditions under which --

20 MR. GREAVES: If that is your Honour's ruling, I need

21 trouble you no further.

22 JUDGE KARIBI WHYTE: Those are the circumstances under

23 which it might.

24 MR. GREAVES: I do not know if any one else has an

25 observation to make on that?

Page 2641

1 JUDGE JAN: Why take a chance? .

2 MR. MORAN: Being a belt and suspender type person, again as

3 long as it is apparent that the Trial Chamber is ruling

4 that unless Mr Delic adopts Mr Delalic's statement, or

5 Mr Landzo's statement, or whatever, again for the

6 limited purpose of admissibility against Mr Delalic we

7 have no objection, but if it is going to come in against

8 Mr Delic, we do have objections and we would want to

9 cross-examine this witness. If not, I do not have any

10 questions to ask her at least at this point.

11 JUDGE KARIBI WHYTE: If you are satisfied with the

12 procedure in which the statements were taken and that no

13 Rules were violated, then you do not have any problems,

14 but if you do have, then the witness is up for you to

15 challenge.

16 MR. MORAN: Your Honour, at this point I do not think we

17 have any standing because it is not evidence against my

18 client. It does not make any difference however it was

19 taken.

20 JUDGE JAN: As I have said, why take a chance. The pure

21 question of law can go one way or the other.

22 MR. MORAN: Like I said, your Honour, I am a belt and

23 suspenders person.

24 JUDGE JAN: You should be doubly sure.

25 MR. MORAN: That is correct, your Honour.

Page 2642

1 MS. McHENRY: Your Honour, if I may be heard just briefly,

2 since I am not sure I entirely understand, the

3 prosecution is not now asking that this evidence be

4 admitted against the accused, but it is the case that at

5 the conclusion of the case we believe that some of what

6 is now hearsay evidence may be considered reliable and

7 could be considered against the co-accused. We believe

8 that it is appropriate -- that there is no reason for

9 this court to decide this now, but certainly there is

10 nothing at all in the Rules which says statements of an

11 accused should be treated differently than any other

12 evidence.

13 JUDGE KARIBI WHYTE: The common law rule principle is

14 fairly clear on this.

15 MS. McHENRY: I agree with that, your Honour, but I --

16 JUDGE KARIBI WHYTE: So we do not have to stretch it too

17 far.

18 MS. McHENRY: Your Honour, if I may just be heard, I would

19 certainly agree with you that in common law you are

20 correct. I would respectfully disagree that this

21 system is a common law. I think, as your Honours have

22 yourself said, it is a unique blend --

23 JUDGE KARIBI WHYTE: Nevertheless as far as we have adopted

24 them and the extent to which we have, we have not made

25 substantial departures.

Page 2643

1 JUDGE JAN: As a Presiding Judge has just pointed out,

2 prima facie it is not admissible because the accused

3 have no chance of cross-examining that statement, prima

4 facie, but I was just warning Mr Greaves: do not take a

5 chance. It is a pure question of law which can go one

6 way or the other.

7 MS. McHENRY: I agree with your Honour. I think it is a

8 question of law and I do not think the Rules are clear

9 and I think your Honours will have to treat it like all

10 other evidence, hearsay evidence, which is to look at

11 whether or not it is reliable. I believe that there

12 may be some circumstances where your Honours could find

13 that some of the evidence in this statement would be

14 admissible against a co-accused. We are not asking

15 that you do it now.

16 JUDGE KARIBI WHYTE: Why do you not wait until we reach

17 that stage?

18 MS. McHENRY: That is fine, your Honour. As long as it is

19 clear that that is our position. Thank you.

20 JUDGE KARIBI WHYTE: That is all you have for this witness,

21 is it?

22 MS. McHENRY: Yes, your Honour. That is assuming that the

23 statements are admitted with them now just being used

24 against the accused with the reserved Ruling later on

25 about the use, if any, as to further --

Page 2644

1 JUDGE KARIBI WHYTE: They are tendered in evidence. That

2 is all we have now.

3 MS. McHENRY: Thank you.

4 JUDGE KARIBI WHYTE: Statements made by the witness. That

5 is all you have.

6 MS. McHENRY: Thank you.

7 JUDGE KARIBI WHYTE: Any questions?

8 MR. MORAN: Your Honour, at the present time, because it is

9 not admitted against my client, we have no questions,

10 but in case the court's Ruling should for some reason

11 change, we would like this witness subject to recall, so

12 we would have a chance to cross-examine her.

13 JUDGE KARIBI WHYTE: If it becomes necessary, then --

14 MR. GREAVES: I make a similar reservation to my learned

15 friend Mr Moran.

16 MR. ACKERMAN: The same on behalf of Mr Landzo, the same

17 reservation.

18 MR. O'SULLIVAN: We have questions for this witness in

19 cross-examination.


21 MR. O'SULLIVAN: Given the time, should we perhaps begin

22 after lunch?

23 JUDGE KARIBI WHYTE: I agree with you. I was carried

24 away.

25 The Trial Chamber will now rise and return at

Page 2645

1 2.30.

2 (1.00 pm)

3 (Luncheon Adjournment)























Page 2646

1 (2.30 pm)

2 JUDGE KARIBI WHYTE: We will have the

3 witness in.

4 (Witness re-enters court)

5 JUDGE ODIO BENITO: Sorry, everybody. We have received a

6 kind of request from the translators to speak slowly,

7 all of us, to take into consideration their necessities

8 and our necessities also. Please. Thank you.

9 JUDGE KARIBI WHYTE: Kindly inform the witness she is still

10 on her oath.

11 THE REGISTRAR: I remind you that you are testifying under

12 oath.

13 A. Thank you.


15 Cross-examination by MR. O'SULLIVAN

16 MR. O'SULLIVAN: Good afternoon, your Honours.

17 JUDGE KARIBI WHYTE: You may proceed.

18 MR. O'SULLIVAN: Thank you. Good afternoon, Miss Manke.

19 A. Good afternoon.

20 Q. My name is Eugene O'Sullivan and I represent Mr Zejnil

21 Delalic. I have a few questions for you. You have

22 told this Tribunal that you were an investigator with

23 the OTP; is that right?

24 A. That is correct, yes.

25 Q. How long have you been an investigator with the OTP?

Page 2647

1 A. Since November 1995, to be precise 31st October 1995.

2 Q. You are a German citizen?

3 A. Yes, I am.

4 Q. In Germany you were a detective before joining the OTP?

5 A. Yes, that is correct.

6 Q. How long were you a detective in Germany prior to --

7 A. I joined the police force in 1982.

8 Q. Okay. Can you tell us a little bit about your

9 education, your background, how one becomes a detective

10 in Germany?

11 A. I attended high school and after high school applied

12 with the Federal Police Force and I attended three

13 years' training with the Federal Police Force, then

14 passing my exam to become an inspector.

15 Q. During those three years you take courses in what sorts

16 of things, just briefly and generally?

17 A. All basic techniques a police officer needs to know to

18 conduct his work.

19 Q. Do you get any training on the law?

20 A. Yes, not in detail, however.

21 Q. What sort of things do you learn about in your training

22 on the law?

23 A. The penal code and of course the penal procedure, police

24 law, some civil law.

25 Q. Okay. Can you tell us a bit more what you know about

Page 2648

1 procedure, criminal procedure?

2 A. Excuse me?

3 Q. Could you tell us a bit more about the criminal

4 procedure you take in your training?

5 MS. McHENRY: Your Honour, I am going to object to that as

6 being just overly broad. If the defence counsel has

7 certain specific questions which the witness can answer,

8 but I think to ask her generally what she knows about

9 criminal procedure is too broad.

10 JUDGE KARIBI WHYTE: I think it is likely to be specific.

11 You can see where he is going.

12 MR. O'SULLIVAN: Very briefly what sorts of things do you

13 touch upon in your training on criminal procedure, in

14 your training to become a detective in Germany?

15 A. We learned about all measures to pertain to police

16 intervention, all forms of the usual police

17 intervention.

18 Q. Okay. Did you learn about things like the rights of

19 the accused?

20 A. Of course.

21 Q. Yes. Did you learn about proper techniques in taking

22 evidence?

23 A. Of course.

24 Q. Okay. You had experience in this type of investigation

25 procedure in Germany before joining the OTP?

Page 2649

1 A. I think this type of investigation is rather unique.

2 Q. It is rather unique?

3 A. Yes.

4 Q. Only in Germany?

5 A. No, war crimes.

6 Q. Before joining the OTP?

7 A. Yes.

8 Q. In Germany, you had occasion to apply what you learned

9 in the field?

10 A. Yes, I had.

11 Q. And when you joined the OTP, did you get training on

12 procedures?

13 A. Yes.

14 Q. What did that entail, briefly?

15 A. Well, discussions with the lawyers, instructions on how

16 to proceed.

17 Q. Again, generally speaking, how many cases were you

18 involved in as an investigator in Germany before joining

19 the OTP?

20 A. I cannot tell you. I've never counted them.

21 Q. Approximately?

22 A. I would need specific permission from my work to tell

23 you this.

24 Q. Okay.

25 A. I'm sorry.

Page 2650

1 Q. So you were an investigator for how many years in

2 Germany, did you say?

3 A. Since 1985 I started investigation.

4 Q. So it is fair to say you have considerable experience as

5 an investigator?

6 A. Yes, I have.

7 Q. Would you agree with that? You are proud of the work

8 you have done as an investigator? Are you proud of the

9 work that you have done as an investigator?

10 JUDGE KARIBI WHYTE: This is a self-assessment, is it?


12 MS. McHENRY: I object as to relevancy.

13 JUDGE KARIBI WHYTE: Why? She can say whether she is

14 proud?

15 A. I never --

16 JUDGE KARIBI WHYTE: Are you not proud of what you have

17 done as an investigator? Somebody wants you to praise

18 yourself. You do that.

19 A. Let us say there were no reasons for complaint so far.

20 MR. O'SULLIVAN: You are an honest investigator, are you?

21 A. I hope so.

22 Q. But you are not sure?

23 A. I know.

24 Q. You do your work with integrity?

25 A. Yes, I did.

Page 2651

1 Q. Okay. You conducted investigations in the Celebici

2 case for the OTP, did you not?

3 A. Yes, I did.

4 Q. And in so doing in the Celebici case you acted with

5 honesty and integrity, did you not?

6 A. Yes.

7 Q. And you maintained that standard throughout; you never

8 wavered from that standard throughout this case?

9 A. I maintained this standard.

10 Q. Let us talk a little bit about the investigation in this

11 case then. You were when Mr Delalic was questioned by

12 the Prosecutor in Munich, Germany, on 18th and 19th

13 March 1996?

14 A. Yes, that is correct.

15 Q. In your testimony this morning you said that on two

16 occasions there were irregularities concerning Rule 43

17 in the recording of the evidence?

18 A. Yes, that is correct. May I correct myself? I'm

19 sorry. It is on three occasions.

20 Q. Three occasions. Right. But you were present

21 throughout those interviews on 18th and 19th, both while

22 the tapes were running and during the breaks when there

23 were the irregularities?

24 A. Yes.

25 Q. So you can tell us what happened?

Page 2652

1 A. Yes.

2 Q. Okay. Do you have -- are you familiar with Rule 42

3 that is related to the accused?

4 A. Yes, I do.

5 Q. Do you have a copy of it in front of you?

6 A. Yes. If I may consult this, your Honour?

7 Q. Are you familiar with Rule 42 or do you want to have a

8 quick look at it before we proceed?

9 A. I'm familiar with this Rule.

10 Q. Okay. This Rule deals with the right to counsel,

11 doesn't it?

12 A. Yes.

13 Q. And this Rule was read verbatim to Mr Delalic, wasn't

14 it?

15 A. Pardon me? This Rule?

16 Q. This Rule 42 was read verbatim to Mr Delalic?

17 A. Yes, it was.

18 Q. Would you tell us what you understand the right to

19 counsel to mean?

20 A. How I understand in my own words?

21 MS. McHENRY: Objection. Your Honour, I think Rule 42

22 speaks for itself. This person is not a lawyer and

23 there has been no allegation that anyone asked her what

24 it meant. I would object as to asking this witness

25 exactly the legal parameters of that.

Page 2653

1 MR. O'SULLIVAN: I am asking her what it means. She says

2 she has legal training as part of her procedures.

3 JUDGE KARIBI WHYTE: I will allow her to answer this

4 question. It is a simple question, not

5 cross-questioning. She knows what the right to counsel

6 is.

7 MR. O'SULLIVAN: What does that right mean to you?

8 A. The right is that the accused has a choice to be

9 assisted by a counsel of his choice, unless he waives

10 this right.

11 Q. Okay. Do you know this right to counsel to be a

12 fundamental right of the accused?

13 A. I don't know what you mean by "fundamental".

14 Q. Okay. You don't know what the word "fundamental" means

15 or you don't know what the expression "fundamental

16 right" means?

17 A. I don't know what the expression means in this context.

18 Q. Okay. So really you are unable to give us any

19 explanation of what the right to counsel means other

20 than to repeat what is in Rule 42. That's your

21 knowledge of the right to counsel?

22 A. Yes.

23 Q. Okay. At the beginning of your interview with

24 Mr Delalic in Munich you introduced yourself as an

25 investigator with the International War Crimes Tribunal,

Page 2654

1 not as the Prosecutor; is that right?

2 A. Yes, that is correct.

3 Q. And you repeated that phrase, that you were the

4 "investigator with the International War Crimes

5 Tribunal" and not a Prosecutor the second day of the

6 interview, on 19th March as well, right?

7 A. I think so, yes, but I'm not sure.

8 Q. So at no time did you tell him you were the Prosecutor?

9 A. I never told him.

10 Q. Your colleague, Mr Hortemo, who is an investigator,

11 never told Mr Delalic that he was a Prosecutor?

12 A. Not that I know of.

13 Q. Look at Rule 42 for a second, would you?

14 A. Yes, please.

15 Q. Could you read the first sentence, the first line?

16 A. "A suspect who is to be questioned by the Prosecutor

17 shall have the following rights."

18 Q. Okay. So you weren't a Prosecutor?

19 A. No.

20 Q. He wasn't being questioned by a Prosecutor?

21 A. No.

22 Q. This is what you read to him?

23 A. Yes.

24 Q. Okay. Let us come back to this notion of right to

25 counsel, fundamental rights, what these rights mean.

Page 2655

1 Let me give you a hypothetical and tell me what you

2 think about it. Let's assume we have --

3 MS. McHENRY: Your Honour, I object to hypotheticals.

4 MR. O'SULLIVAN: It is tied to police procedures. It's tied

5 to -- I would like her opinion.

6 JUDGE KARIBI WHYTE: Let us hear his question.

7 MR. O'SULLIVAN: Let us assume for the sake of argument we

8 have a German citizen who is travelling in a country

9 like Canada, let us say, and she has a brush with the

10 law and she is questioned by the police. She is brought

11 to the police station and she is handed a copy of the

12 Canadian Charter of Rights and Freedoms 1982. It is

13 said: "Here you can read this. In fact, someone will

14 read it to you." Here is this person from a foreign

15 country visiting the new world to see lakes and forests,

16 has a brush with the law. Police officers read this

17 foreign law to this person. Do you think that the

18 police officer should perhaps treat that German woman a

19 little more fairly and explain things to her?

20 MS. McHENRY: Objection.

21 JUDGE KARIBI WHYTE: Why are you objecting?

22 MS. McHENRY: Your Honour, I believe hypotheticals about

23 what might happen in Germany or Canada are not

24 appropriate. If defence counsel wants to make

25 argument, I think he is free to do so, but I think it is

Page 2656

1 unfair to put this witness in the position of -- a

2 position she has not been in. If he wants to ask her

3 what she knows about the interview of Mr Delalic, we

4 have no objection to that, but I think it is unfair to

5 put the witness in this position. I think it is

6 irrelevant and unfair.

7 MR. O'SULLIVAN: With all due respect to my learned friend I

8 am asking her what she would think of a situation of a

9 foreigner in a strange land, who is read verbatim

10 rights. In your experience as a police officer do you

11 think that is fair to the accused or the suspect to not

12 have it explained to him?

13 JUDGE KARIBI WHYTE: If that is your question, put it

14 straight to her.

15 MR. O'SULLIVAN: I was just making the foundation for that

16 question.

17 JUDGE KARIBI WHYTE: Put it straight to the witness. The

18 particular example might not help.

19 MR. O'SULLIVAN: Do you think it is fair that a foreigner in

20 a strange land facing a strange and new law and legal

21 system should merely have their rights read to her

22 without any further explanation?

23 A. Yes.

24 Q. You do?

25 A. Yes. Especially if the person is afterwards asked if

Page 2657

1 she has understood the right.

2 Q. Uh-huh. Yet when I asked you what the right to counsel

3 meant, you had no idea?

4 A. I think it is very clear.

5 JUDGE KARIBI WHYTE: She explained what the right to

6 counsel is.

7 MR. O'SULLIVAN: But you don't know what it really means, do

8 you.

9 MS. McHENRY: Objection. Asked and answered. I consider

10 this arguing with the witness.

11 MR. O'SULLIVAN: Your Honour, I asked her what she understood

12 it to mean.

13 JUDGE KARIBI WHYTE: I think I remember she explained what

14 the right to counsel means.

15 MR. O'SULLIVAN: By repeating what the Rules are.

16 JUDGE KARIBI WHYTE: When you put what she regards as a big

17 word, "fundamental", she did not understand what that

18 meant within context but she knows what the right to

19 counsel means.

20 Q. During the two interviews of Mr Delalic in March 1996 he

21 was not represented by counsel. You have told us that?

22 A. That is correct.

23 Q. And the first interview of March 18th lasted about six

24 hours, did it not?

25 A. That is correct.

Page 2658

1 Q. And the second interview on March 19th lasted about four

2 hours?

3 A. Yes.

4 Q. Give or take. Who was present in the room during that

5 second interview? Who were the people who were there?

6 A. It was Mr Hortemo and myself as well as an interpreter

7 and the accused, Mr Delalic, throughout all the time.

8 Q. No one else was present?

9 A. Yes. There was also Mrs -- a legal advisor from the

10 Tribunal, Miss Uertz Retzlaf, present but only

11 partially.

12 Q. So you are telling me that a lawyer from the prosecution

13 was present during this time?

14 A. Yes, part of the time.

15 Q. Okay. During that March 1996 interview at some point

16 didn't your colleague, your fellow investigator,

17 Mr Hortemo advise Mr Delalic that he needed a lawyer?

18 A. Yes, that is correct.

19 Q. Do you have a copy of the Delalic statement in front of

20 you?

21 A. Yes, I do.

22 Q. Well, before we go to that, if you recall, that was

23 about an hour or so into the interview, when Mr Hortemo

24 told Mr Delalic he should seek legal counsel; is that

25 right?

Page 2659

1 A. Yes, that is correct.

2 Q. It is at that point that the lawyer from the Tribunal,

3 Miss Retzlaf, left the room; is that correct?

4 A. I cannot remember exactly.

5 Q. Okay. After Mr Hortemo advised Mr Delalic to call a

6 lawyer, what happened?

7 A. Someone -- I think it was Mrs Uertz Retzlaf went out of

8 the room and looked in a telephone book for names of

9 lawyers in Munich, since Mr Delalic had no lawyer in

10 Munich.

11 Q. Yes. Then what happened?

12 A. Then I think she tried to contact a couple of lawyers,

13 but without success, so in the end it was suggested that

14 the lawyer representing Mr Tadic in Munich should assist

15 Mr Delalic, which was successful.

16 Q. He showed up at the interview at that point?

17 A. Excuse me.

18 Q. A lawyer showed up on behalf of Mr Delalic at that

19 point? Mr Delalic was then represented?

20 A. Not at that point. At the court.

21 Q. What happened during the interview then?

22 A. The interview continued.

23 Q. Okay --

24 A. The questioning continued.

25 Q. Okay. With or without counsel for Mr Delalic?

Page 2660

1 A. Without.

2 Q. Okay. Could I ask you to turn to page 62 of

3 Mr Delalic's statement on March 19th?

4 A. Yes.

5 Q. It is correct -- you might want to look -- just read it

6 to yourself. You might want to refresh your memory for

7 a moment?

8 A. Excuse me.

9 Q. Yes.

10 A. Yes. Can I ..

11 Q. Yes.

12 A. You mean the passage:

13 "The time is now 10 to 12 and we have .."

14 Q. Read it to yourself, if you don't mind.

15 A. Yes. (Pause). Yes, I have read it.

16 Q. Okay. So after Mr Hortemo advised Mr Delalic that he

17 should call a lawyer, it became clear that Mr Delalic

18 did not know any lawyers in Munich; is that correct?

19 A. That is correct, yes.

20 Q. Uh-huh. You asked a German policeman to bring a list

21 of names with lawyers on it for Mr Delalic?

22 A. Uh-huh. Yes, that is correct.

23 Q. Then you took a break. Again it is repeated that

24 Mr Delalic does not know any lawyers in the city?

25 A. Yes.

Page 2661

1 Q. Then a problem arises, does it not, because there are no

2 lawyers in Munich which know the Rules and Procedures of

3 this Tribunal, does it not?

4 A. That is correct.

5 Q. At that point it is suggested to contact counsel for

6 Tadic. Who is Tadic? Who is Tadic?

7 A. It is one of the accused of the Tribunal.

8 Q. What is his lawyer's name?

9 A. Here at the -- at the time it was somebody out of the

10 law office of Mr -- I'm sorry. I can't remember the

11 name.

12 Q. At that point your colleague, Mr Hortemo says:

13 "At least he", Tadic's lawyer, "will know the

14 Rules and Procedures of this Tribunal"?

15 A. Yes.

16 Q. But he never showed up, did he, the lawyer?

17 A. Somebody of his law firm came to the court proceedings.

18 Q. And then your colleague, Hortemo, continues:

19 "In the meantime he suggests that the interview

20 continues"?

21 A. That is correct.

22 Q. But Delalic can stop any time he wants and be shown this

23 list again, the list on which there is no one there who

24 can help him?

25 A. Mr Tadic's lawyer could.

Page 2662

1 Q. On the list. Mr Tadic's lawyer was not on the list

2 apparently?

3 A. Not at that moment.

4 Q. No. So Mr Delalic is given a list on which there is no

5 one who knows the Rules and Procedures of this Tribunal

6 and it is said: "Here, choose a lawyer"; is that right?

7 A. I am not familiar with the list of the Munich Police.

8 I think they keep specifications of the lawyers and

9 their specific knowledge.

10 Q. I am questioning you based on what your colleague

11 Mr Hortemo said and you were there, that this list was

12 shown to Delalic and the problem was there were no

13 lawyers on that list who knew the Procedures and Rules

14 of this court; isn't that correct?

15 A. That is correct.

16 Q. And then you told Delalic it was continuing. "If you

17 want to consult a lawyer, we will give you the list

18 back"; is that correct? This is of absolutely no use to

19 an accused, because there is no one on the list that

20 knows the Rules; isn't that correct?

21 A. Not everything has to be in writing.

22 Q. So now you're a lawyer?

23 MS. McHENRY: Objection.

24 A. I believe there was --

25 MR. O'SULLIVAN: Well, I asked her a question. She says it

Page 2663

1 does not have to be in writing. On what basis do you

2 draw that conclusion?

3 MS. McHENRY: I object.

4 JUDGE KARIBI WHYTE: What is your question? Put it to her.

5 MR. O'SULLIVAN: You said in response to my question -- my

6 question was: you gave Mr Delalic a list. You offered

7 him a list which was worthless to him because it had

8 already been established there were no lawyers on that

9 list who knew the Rules of this Tribunal; correct?

10 A. We have tried our best.

11 Q. Is that correct?

12 A. That is correct.

13 Q. Thank you. Do you consider that type of procedure,

14 knowing that a man is unrepresented by counsel, as a

15 suspect, to be acting with honesty and integrity?

16 A. Yes.

17 Q. You do?

18 A. This is the normal case in Germany that accused are not

19 assisted by counsel when interviewed by the police.

20 Q. I see. So you applied your understanding of the law of

21 Germany in the context of a prosecution in this

22 Tribunal. Is that what you are saying?

23 A. No.

24 Q. Well, you just finished saying that your education --

25 MS. McHENRY: Objection. He is arguing with the witness.

Page 2664

1 MR. O'SULLIVAN: Hardly. I'm trying to understand what

2 elicited that response in her when she was thinking at

3 the time of the interview.

4 MS. McHENRY: I will just point out that what she was

5 thinking is not really relevant.

6 MR. O'SULLIVAN: How can you know what she is thinking?

7 MS. McHENRY: I am sorry. May I finish? Your Honour,

8 I believe what is relevant is what happened and what

9 occurred. I believe there is a clear record of that.

10 I believe that what she may have been thinking and her

11 knowledge of German law versus the Tribunal -- I believe

12 what's important with respect to evaluating Mr Delalic's

13 rights are, in fact, what happened. I believe there is

14 no doubt that the transcript fairly reflects that and

15 I believe that is the relevant information that this

16 court needs to determine the issue.

17 MR. GREAVES: Well, may I just interrupt? It is a matter

18 for the court to determine whether the transcript fairly

19 reflects it. It is not a matter for counsel to comment

20 and substitute her opinion, with respect.

21 JUDGE KARIBI WHYTE: I think counsel is entitled to ask his

22 questions. He can go ahead.

23 MR. O'SULLIVAN: Yes. So now we have established a little

24 bit what your understanding of the right to counsel

25 is. In Germany it means one thing. It means you do

Page 2665

1 not necessarily have a right to be represented during

2 your questioning with the police; is that not correct?

3 A. We have applied or acted according to the Rules of

4 Procedure and Evidence by this Tribunal.

5 Q. Would you please answer my question? That was not my

6 question?

7 A. Could you repeat your question, please?

8 Q. All right, for the third time. You are -- you were

9 trained under German law and German criminal procedures

10 but in your country you have just said that the accused

11 is not necessarily entitled to be represented by counsel

12 while being questioned by the police?

13 A. That's not correct.

14 Q. Please correct me.

15 A. I did not say he is not entitled to.

16 Q. Please tell me what the German law says?

17 JUDGE KARIBI WHYTE: Why do you need the German law?

18 MR. O'SULLIVAN: She mentioned the German law.

19 JUDGE KARIBI WHYTE: I think you have actually left that

20 point. You are trying to consider what she had in mind

21 when she was dealing with him.

22 MR. O'SULLIVAN: Yes, and in response to that question, your

23 Honour, she said she was applying her knowledge of the

24 procedures under German law for interrogation.

25 JUDGE KARIBI WHYTE: I think we have got to the stage where

Page 2666

1 they have tried all they could to find counsel for

2 him. They made every effort.

3 MR. O'SULLIVAN: Granted, your Honour, and she said the

4 reason they stopped was because of her understanding of

5 what the right to counsel meant based on her knowledge

6 of German law and procedure.

7 JUDGE KARIBI WHYTE: We are getting nowhere by this

8 approach.

9 MR. O'SULLIVAN: All right. In March of 1996 you were

10 yourself conducting investigations on Mr Delalic, were

11 you not?

12 A. Yes, that is correct.

13 Q. When you were investigating Mr Delalic, you knew that he

14 never held a position in Bosnian civil authorities, did

15 you not?

16 A. We didn't know anything. We tried to establish facts.

17 Q. So at that point you did not know whether he held a

18 position in Bosnian civil authorities?

19 A. It is my job to establish facts, to find out the truth

20 and this is what we tried to.

21 Q. I'm not disputing what your job is, but I'm saying at

22 that point in March you did not know whether he held a

23 position in Bosnian civil authorities?

24 A. We did not know.

25 Q. Right. You did know that Mr Delalic was in the Bosnian

Page 2667

1 Army from late July 1992 until November 1992, didn't

2 you?

3 A. No, I did not.

4 Q. Okay. Still in the context of your investigations,

5 they never showed -- your investigations never showed

6 that Mr Delalic had access to privileged information in

7 the Bosnian Army, did it?

8 A. I was not aware of that.

9 Q. Still in keeping with your investigations, they never

10 showed at that time that he had close contacts with the

11 authorities in the Bosnian Army, did they?

12 A. Do you mean before the interview or during the

13 interview? During the interview Mr Delalic mentioned a

14 contact to Mr Halilovic.

15 Q. Okay. Your investigations around this time never

16 showed Mr Delalic was close to high-ranked perpetrators

17 of war crimes, did it?

18 A. Well, it depends on your definition of war criminals.

19 Q. Well, my question was: your investigation never showed

20 he had close contact with high-ranking or high-ranked

21 perpetrators of war crimes. That was my question?

22 MS. McHENRY: She has answered that question, your Honour.

23 She said: it depends on your definition, and she doesn't

24 understand exactly what is being asked.

25 JUDGE KARIBI WHYTE: Let the witness answer the question.

Page 2668

1 It's a straightforward question. If she does not know,

2 she will not.

3 Did your investigation disclose any association

4 with the high-ranking war criminals in relation to

5 Delalic?

6 A. We -- our investigation -- through witness statements we

7 had learned that Mr Delalic had a high-ranking position

8 in the municipality of Konjic during the relevant time

9 and we wanted to find out in this interview, get

10 corroborating information or information that would

11 refute this.

12 MR. O'SULLIVAN: Okay.

13 JUDGE KARIBI WHYTE: Does this satisfy you?

14 MR. O'SULLIVAN: Thank you, your Honour. Thank you for your

15 help.

16 Also during your investigations you know that

17 Mr Delalic was not politically active in Bosnia, do you

18 not?

19 A. He told he was a member of the SDA in Vienna.

20 Q. So my question was: he was not politically active in

21 Bosnia?

22 A. He was not active in Bosnia, no, I don't think so.

23 Q. No. Could I have the assistance of the usher? I would

24 like to show a document to the witness, please.

25 MS. McHENRY: May the prosecution see a copy of it before it

Page 2669

1 is shown to the witness?

2 MR. O'SULLIVAN: It is for impeachment purposes but you may,

3 yes.

4 JUDGE KARIBI WHYTE: They are entitled to see what you want

5 to show to their witness.


7 JUDGE KARIBI WHYTE: Do you have any objection.

8 MS. McHENRY: I have no objection to it being shown to the

9 witness.

10 JUDGE KARIBI WHYTE: You should have told him that.

11 MS. McHENRY: I am sorry, your Honour.

12 MR. O'SULLIVAN: Miss Manke, you will see you have two

13 pages. One page is the German original and the second

14 page is the English translation of that.

15 A. Uh-huh. Thank you.

16 Q. Do you recognise that document?

17 A. Yes, I do.

18 Q. It is dated March 19th, 1996?

19 A. Yes.

20 Q. It is prepared by you?

21 A. Yes.

22 Q. The subject is the arrest and transfer of Zejnil

23 Delalic, born on 25th March 1948 in Ostrazac,

24 Bosnia-Herzegovina; you remember making this?

25 A. Yes, I do.

Page 2670

1 Q. And the information contained in here was correct to the

2 best of your knowledge?

3 A. Yes.

4 Q. A moment ago I asked you this question: when you were

5 investigating Mr Delalic, you knew that he had never had

6 a position in Bosnian civil authorities. You said you

7 knew that. Here in this letter, on the other hand, you

8 say and I quote:

9 "The accused, Delalic, held a responsible position

10 in the Bosnian Army as well as in Bosnian civil

11 authorities."

12 You did not tell the truth, did you?

13 A. That is correct. Yes, I did.

14 Q. Well, a moment ago you said the opposite in answering my

15 question.

16 A. Maybe I have misunderstood you. What is -- during the

17 interview Mr Delalic told us that he had contact with

18 Mr Halilovic, which I have mentioned to you before.

19 Q. No, in response to the question that you knew that

20 Mr Delalic never held a position in Bosnian civil

21 authorities you said: that is correct. Here in this

22 letter dated March 19th you are saying the opposite?

23 A. What is correct is put here in this memo.

24 Q. So you are not telling the truth here before this

25 Tribunal now. Is that what you are saying?

Page 2671

1 A. No.

2 Q. What are you saying? . They both can't be right?

3 A. I may have misunderstood you.

4 Q. You have misunderstood my question three times now, have

5 you not?

6 THE INTERPRETER: Could counsel please slow down a bit?

7 Thank you.

8 MR. O'SULLIVAN: Let us continue going through this

9 document. I asked you a question. Your

10 investigations never showed that Mr Delalic had access

11 to privileged information in the Bosnian Army and you

12 said that was correct. The second paragraph of this

13 letter says in regard to Mr Delalic:

14 "He had considerable access to privileged

15 information in the Bosnian Army."

16 That sounds quite different to me. When were you

17 telling the truth, then or now?

18 A. May I draw the attention to the fact that this is not a

19 court document which was -- this is an internal document

20 of the police, which was to ensure the safety of

21 Mr Delalic.

22 Q. So you are telling me that in internal documents you

23 don't tell the truth?

24 A. Of course I do.

25 Q. What about before courts of law?

Page 2672

1 A. Of course I do.

2 Q. Well, you are blowing hot and cold here, are you not?

3 MS. McHENRY: Objection to these kinds of comments. I have

4 no objection if the defence counsel wants to ask the

5 witness to clarify, to explain, but his comments such

6 as: "You are running hot and cold", I think are entirely

7 inappropriate.

8 MR. O'SULLIVAN: Let us continue. I asked you a question a

9 few moments ago. I asked you: your investigations

10 never showed that Mr Delalic had close contacts with the

11 authorities in the Bosnian Army and you confirmed

12 that. Here you say in the third or fourth paragraph:

13 "He could have close information on high-ranking

14 ..".

15 Sorry. Third paragraph:

16 "He had substantial and close contacts with the

17 decision-makers of the Bosnian Army and authorities."

18 Again, I suggest to you that you are not telling

19 the truth in this court, are you?

20 A. I do tell the truth.

21 Q. You weren't telling the truth in this letter then, were

22 you?

23 A. Yes, it is true what is in this letter.

24 Q. Well, those are contradictions?

25 A. I can --

Page 2673

1 Q. Between what is written here and what you have said here

2 today. Would you agree with me?

3 A. No, I don't.

4 Q. All right. A few moments ago I also asked you this

5 question, and I stated: you know that Mr Delalic was not

6 politically active in Bosnia and you agreed with that.

7 Yet in this letter you say:

8 "He continued to be politically active in Bosnia

9 up to the present day."

10 Again you have contradicted yourself, haven't you?

11 A. No, I don't think so, because these are estimations of

12 mine as to his situation, whether he was in danger or

13 not, which was relevant for his transport to The Hague.

14 Q. I am not asking why you prepared the document but I will

15 ask you this question: do you consider the differences

16 between what you put in this letter and what you told us

17 here to be acting with honesty and integrity?

18 A. No, because this is an estimation. I tried to explain

19 that this is an estimation of or conclusions made from

20 the statement and from the previous statement of

21 Mr Delalic.

22 Q. But you have told this court you have certain

23 information on the questions I asked you and then,

24 looking at this document, we see that you drew different

25 conclusions, all prejudicial to Mr Delalic, would you

Page 2674

1 not agree?

2 MS. McHENRY: Your Honour, I'm going to object to this.

3 She has already explained that, with respect to what she

4 testifies in court, she wants to be very sure and base

5 it on facts. With respect to this letter, which had to

6 do with the safety of Mr Delalic and what kind of

7 measures were taken, she made certain conclusions.

8 I think that it's inappropriate, now that she has

9 explained it several times, for counsel to keep

10 badgering her.

11 MR. O'SULLIVAN: Let us move on to another set of questions,

12 shall we?

13 It's correct that you first came into contact with

14 Mr Delalic in Munich as part of your investigations;

15 right?

16 A. Yes, that is correct.

17 Q. And you knew that Mr Delalic was living in Munich,

18 Germany, when he was arrested in 1996?

19 A. There were indications, yes.

20 Q. You knew he held a Bosnian passport?

21 A. Yes, that is correct.

22 Q. It's also correct that a foreign citizen living -- that

23 he was -- I will retract that. Mr Delalic was a

24 foreign citizen living in Germany in 1996?

25 A. Yes.

Page 2675

1 Q. Is it not correct to say that foreign citizens must be

2 entered on the German Central Registry of German

3 citizens in order to be legally within German territory?

4 A. Yes.

5 Q. Do you know whether Mr Delalic was registered with the

6 German Central Registry of Foreign Citizens in 1996,

7 when he was arrested?

8 A. I would need to verify with the files in Germany.

9 Q. Did you verify at that time whether he was registered?

10 A. We received information from the Federal Police Force

11 pertaining to his person. I would need to check these

12 files.

13 Q. Are you saying that you did not personally check the

14 German Registry of Foreign Citizens?

15 A. We are not allowed to.

16 Q. Okay. To your knowledge was he registered? That is

17 what I want to know. To your knowledge was Mr Delalic

18 registered?

19 A. I would need to check the files, the correspondence with

20 the German Police Force about this issue.

21 Q. So you had no knowledge either way whether he was

22 registered or not?

23 A. I do not have it at the moment. I would need to

24 consult my file before I can answer your questions. If

25 you permit me to consult the files, I can answer your

Page 2676

1 question.

2 Q. Do you have the files in front of you?

3 A. It's not in this file.

4 Q. Can we perhaps allow the witness to consult her files?

5 JUDGE JAN: The files are in Germany probably, not here.

6 JUDGE KARIBI WHYTE: Actually what do you need it for?

7 MR. O'SULLIVAN: Well, I want her to answer my question

8 whether or not she knew as part of the investigations

9 whether Mr Delalic was registered as a foreign --


11 MR. O'SULLIVAN: It goes to the credibility of this witness

12 and the thoroughness of her investigations.

13 JUDGE KARIBI WHYTE: I think that is --

14 JUDGE JAN: In interviewing Mr Delalic did you check up

15 whether he was registered or not?

16 A. I did not do it myself. We had to rely on the

17 information that the German authorities provided to us.

18 JUDGE JAN: What information did they supply to you in this

19 regard, the registration?

20 A. They informed us that, according to their files,

21 Mr Delalic was registered as a resident in Munich.

22 MR. O'SULLIVAN: All right. So you are saying that you were

23 given information that he was registered in Munich?

24 A. Yes, but I didn't know whether he actually was there.

25 Q. Yes, all right. But that was your understanding at the

Page 2677

1 time, that he was registered?

2 A. Yes.

3 Q. Thank you. The same register of foreigners would also

4 register whether a foreigner was registered as the

5 manager of a company, wouldn't it?

6 A. Excuse me. The same form?

7 Q. The same register of foreigners would indicate whether

8 or not a foreigner was registered as the manager of a

9 company, would it not?

10 A. I do not know what is in this register form.

11 JUDGE KARIBI WHYTE: If you are sure he has business

12 interests there and she is rightly to know that, ask her

13 those questions and let us get to the root of it, else

14 you will be going round and round and getting nowhere.

15 MR. O'SULLIVAN: Can I, with the assistance of the usher,

16 have a document shown to the witness, please? Excuse

17 me. Usher, can I have your assistance, please? Can

18 you show it to the Prosecution too, please.

19 MS. McHENRY: I have no objection to that being shown to the

20 witness. (Handed)

21 A. Thank you very much.

22 MR. O'SULLIVAN: Miss Manke, do you recognise this document?

23 A. Yes, I do.

24 Q. It is dated March 6th 1996 and it is prepared by you, is

25 it not?

Page 2678

1 A. Yes.

2 Q. It is sent to Regis Abrabat?

3 A. Yes, that is correct.

4 Q. Who is he?

5 A. Pardon me.

6 Q. Who is Mr Abrabat?

7 A. At that time he used to be my superior.

8 Q. Of investigations here at the OTP?

9 A. Yes.

10 Q. You see the first paragraph?

11 A. Yes.

12 Q. I am looking at the English version. If you go down

13 five lines, there is a sentence beginning with the name

14 "Delalic". I will read it to you.

15 A. Yes.

16 Q. It says:

17 "Delalic, however, was never entered in the German

18 Central Registry of Foreign Citizens"?

19 A. I'm sorry. This is what I would have learned when

20 consulting my files.

21 Q. Earlier when I asked you that question you gave the

22 opposite answer. You said he was registered?

23 A. I wanted to consult my files before I asked (sic) that,

24 and this would have come out of this.

25 Q. With all due respect, I asked you the question and you

Page 2679

1 answered it in a different manner. Would you agree

2 with me on that?

3 A. I don't get you, I am afraid.

4 Q. A few moments ago I asked you the same question and you

5 gave me an opposite answer?

6 A. I don't think so, no.

7 Q. Well .. in fact, you gave an opposite answer to Judge

8 Jan's question. Do you recall?

9 A. I do not know what the German authorities have

10 communicated to me. This is what I told you. I can

11 only tell you what they have communicated to me when

12 consulting the files. As a result of this -- this memo

13 you are now reading to me is a result of the information

14 the German authorities provided us with.

15 Q. All right. You know that Mr Delalic was arrested

16 provisionally under Rule 40 of the Rules of Procedure of

17 this Tribunal; right?

18 A. That is correct.

19 Q. And you know under Rule 40 the Prosecutor may request

20 any state to arrest an individual provisionally?

21 A. That is correct.

22 Q. The basis for the provisional arrest is a case of

23 emergency; is that not right?

24 A. Yes.

25 Q. And you know that Mr Goldstone, the Prosecutor at that

Page 2680

1 time, made such a request regarding Mr Delalic to the

2 German authorities?

3 A. Yes.

4 Q. And at that time there was no indictment against

5 Mr Delalic, was there?

6 A. No.

7 Q. The indictment didn't come down until 21st March; isn't

8 that right?

9 A. That's right.

10 Q. Nor was there an arrest warrant from this Tribunal for

11 Mr Delalic either, was there?

12 A. I considered the request which was addressed to the

13 German authorities as a kind of arrest warrant.

14 Q. You know Mr Schneider, the Chief Prosecutor in Munich,

15 do you not?

16 A. Yes.

17 Q. He took necessary measures to make the provisional

18 arrest of Mr Delalic on 18th March 1996 in Munich?

19 A. I can't remember the exact date, yes, but..

20 Q. You had conversations with Mr Schneider about that

21 arrest, didn't you, the provisional arrest?

22 A. Yes.

23 Q. And it was based on your information and your

24 investigations that that provisional fast-track arrest

25 was made, wasn't it?

Page 2681

1 A. Excuse me. Could you repeat that, please?

2 Q. You informed Mr Schneider, based on your investigations

3 of Mr Delalic -- part of your investigations was the

4 basis for using that Rule 40 arrest, was it not, the

5 provisional fast-track arrest?

6 A. Well, I met with Mr Schneider to discuss the arrest,

7 yes.

8 Q. And you informed him of the results of your discussions

9 on Mr Delalic, didn't you?

10 A. That is correct.

11 Q. Right. Based on those two documents we've looked at

12 here today; that was the basis for your conclusions,

13 wasn't it?

14 A. Yes.

15 Q. The same documents that you have contradicted here on

16 cross-examination?

17 A. Yes.

18 Q. Would you agree with me that it's fair to say that

19 you've been quite personally involved in this

20 investigation?

21 A. No. Personally, if you mean emotionally.

22 Q. Whatever. No? Okay. You know within this trial that

23 Witness N has testified, don't you?

24 A. I do.

25 Q. Now, please don't mention any names, because he is a

Page 2682

1 protected person, but do you know the real name of

2 Witness N?

3 A. Yes, I do.

4 Q. I just want to show you -- because he is a protected

5 person, to make sure we're talking about the same

6 person, I would like to show you a piece of paper with a

7 name on it and just tell me if we are talking about the

8 same person?

9 A. Okay.

10 MS. McHENRY: I'm sorry. May the prosecution see it?

11 Thank you. No objection. (Handed to witness).

12 MR. O'SULLIVAN: Have you had a chance to look at this?

13 A. Yes, I have.

14 Q. Is the name on this paper the person you know to be

15 Witness N?

16 A. Yes.

17 Q. We will always refer to him as Witness N then. All

18 right. You know that Witness N has already testified

19 in these proceedings?

20 A. Yes.

21 Q. And you're familiar with what Witness N told the

22 Tribunal?

23 A. No.

24 Q. Are you sure?

25 A. Yes, I'm sure.

Page 2683

1 Q. When Witness N was being cross-examined by my colleague,

2 Ms Residovic, at pages 2064 and 2065 of the transcript,

3 they were discussing statements Witness N had given to

4 investigators and she had questions for him regarding

5 those statements. She asked him this question:

6 "Question: And have you met a Mrs Sabine Manke of

7 Germany?

8 Answer: Yes. But not linked to this?"

9 In what way are you and Witness N linked, Miss

10 Manke, if it's not by way of investigation?

11 A. We met during a mission to Timisware where a number of

12 witnesses were brought to be interviewed. I have not

13 personally interviewed this witness but another

14 investigator from the Tribunal.

15 Q. Could you tell us a bit about what Witness N was doing

16 with you there and how he helped you and expand on that?

17 A. No. I have not had a chance to talk to him personally.

18 Q. You have never spoken to him personally?

19 A. I have spoken to him personally but not at length.

20 Q. Yes, but please tell us what that involved?

21 A. It involved his meals as a witness in Timisware. It

22 involved his stay, accommodation, etc.

23 Q. So you went for dinner with him?

24 A. No.

25 Q. Did it go beyond that?

Page 2684

1 A. No.

2 Q. I have no further questions, your Honour.

3 JUDGE KARIBI WHYTE: That is all you have for this

4 witness? Any other questions?

5 MS. McHENRY: I have just a couple of questions in

6 re-examination. Before that, I might ask if I could see

7 the documents that have been shown to the witness?

8 Re-examination by MS. McHENRY

9 MS. McHENRY: Miss Manke, do you have any personal

10 relationship with Witness N? . I'm sorry I have to ask

11 you this but I just want the record to be clear?

12 A. No.

13 Q. Thank you. With respect to the interview of Mr Delalic

14 conducted in Munich can you tell us something about the

15 circumstances under which it was suggested that

16 Mr Delalic should have an attorney, in particular what

17 was the purpose that Mr Hortemo suggested that

18 Mr Delalic might wish to have an attorney?

19 A. Well, I cannot speak for Mr Hortemo, but as far as

20 I remember, it was the fact that we learned at this

21 moment that Mr Delalic was to be brought before a judge

22 around 12.30, and since this was a formal proceeding we

23 thought it would be wise -- Mr Hortemo suggested it

24 would be wise to have a counsel for that purpose.

25 Q. So is it correct that the questions and the suggestion

Page 2685

1 as far as your information that he have an attorney had

2 to do with the formal court proceeding that was going to

3 happen with respect to Mr Delalic's arrest and possible

4 subsequent transfer to The Hague?

5 A. Yes, this was my understanding.

6 Q. Okay. Did, in fact, a lawyer come and represent

7 Mr Delalic in the court hearing?

8 A. Yes. I have now remembered the name of the lawyer.

9 It's Mr Bose, somebody from Mr Bose's law firm.

10 Q. I don't have anything else. Ma'am, are you familiar

11 with the fact that there was a search warrant issued and

12 certain things regarding Mr Delalic were found in March?

13 A. Yes.

14 JUDGE JAN: What has this to do with?

15 MS. McHENRY: Your Honour, it has to do with the impeachment

16 about this document. I just want to clarify particular

17 things. I believe that some of the discussion may have

18 had to do with misunderstandings about time, when she

19 learned certain things versus when she wrote certain

20 things. I think, given this attempt to the

21 impeachment, I am allowed to just ask about that.

22 MR. O'SULLIVAN: I object to that, your Honours. This

23 re-direct is exceeding the scope of cross-examination.

24 MS. McHENRY: I do not believe. It will be just one or two

25 questions.

Page 2686

1 JUDGE KARIBI WHYTE: I do not even see how it leads to the

2 cross-examination, because cross-examination was a

3 specific one.

4 MS. McHENRY: Yes, your Honour.

5 JUDGE KARIBI WHYTE: Trying to point out contradictions

6 between what she said and what this letter represents.

7 MS. McHENRY: Okay.

8 JUDGE KARIBI WHYTE: Now what you are doing is getting

9 something out of the blue which did not arise from this.

10 MS. McHENRY: It may have been my question was too broad,

11 because I was trying not to lead the witness. If

12 I could be permitted one specific question, and I think

13 that will be -- it is directly relevant to the attempted

14 impeachment with this document, and I am referring to

15 the document dated 19th March 1996.

16 Let me ask you specifically, Miss Manke: among

17 the things that were seized was there, for instance --

18 MR. O'SULLIVAN: Objection, your Honour.

19 JUDGE JAN: There was no seizure.

20 MS. McHENRY: Your Honour, I believe I am allowed to ask her

21 about the reason why at least as of March 19th she was

22 able to say correctly that there were substantial and

23 close contact with decision-makers of the Bosnian Army

24 and that he has information about high-ranking people.

25 That is in particular what my question is going to be

Page 2687

1 devoted to.


3 MS. RESIDOVIC (in interpretation): Objection, your

4 Honour.

5 JUDGE KARIBI WHYTE: Now, this is the problem. The

6 question which was asked her by counsel initially was

7 her familiarity with the official position of Delalic in

8 the community. She said as far as she knew there was

9 none. Now this letter is now showing that she is

10 targeting him as having some official position. This

11 is a contradiction he was trying to point out.

12 MS. McHENRY: That is exactly right, your Honour.

13 I believe some of it may have been a misunderstanding

14 about time. Without suggesting the answer to the

15 witness, what I am trying to do is find out when she

16 started the information -- she had certain information

17 but by the time she wrote this letter on 19th March she

18 may have had very specific knowledge in which -- which

19 substantiates the statements in this letter.

20 JUDGE KARIBI WHYTE: That is whether your question arises

21 from the question which led to this.

22 MS. McHENRY: That is correct. My question has directly --

23 has to do with the information that she had as of at

24 least 19th March about substantial and close contacts

25 with decision-makers of the Bosnian Army and authorities

Page 2688

1 which was specifically put to her in cross-examination

2 by the defence attorneys.

3 JUDGE JAN: Well, she could have said and explained the

4 contradictions. She could have also herself explained

5 that while trying to explain the apparent

6 contradictions.

7 MS. McHENRY: That is right, your Honour, but I believe that

8 one of the purposes of re-examination is to help clarify

9 things without leading the witness, things -- especially

10 with the pressure of the witness stand, or because they

11 do not believe it is being directly asked or because

12 there is a misunderstanding. I believe that I am

13 entitled to clarify matters raised in cross-examination.

14 JUDGE JAN: You yourself have suggested the answer to her

15 because at that time she had some limited information

16 and later on she had more knowledge. You have already

17 suggested the answer to the witness.

18 MS. McHENRY: I have not, for instance, suggested what the

19 specifics are. My first question didn't suggest

20 anything but then I was pressed as to why I was asking

21 it and did it fall within the scope of re-examination.

22 I believe that I had to explain to the court why.

23 JUDGE KARIBI WHYTE: The circumstances under which she made

24 the contradiction. This is what you wanted.

25 MS. McHENRY: Your Honour, I would like to clarify the

Page 2689

1 attempt at impeachment. In fact, I would not agree

2 there is necessarily a contradiction. I would at least

3 like to attempt to clarify the attempt at impeachment.

4 JUDGE KARIBI WHYTE: Yes. Put it to her.

5 MS. McHENRY: Okay. Ma'am, are you aware of some of the

6 evidence that was seized from the search warrants --

7 JUDGE KARIBI WHYTE: That is where the problem comes.

8 Nobody talked about seizure of things.

9 MS. McHENRY: Okay. Are you aware of whether or not this

10 investigation has -- that evidence indicating that

11 Mr Delalic had substantial and close contacts with

12 decision-makers of the Bosnian Army and authorities was

13 found?

14 A. Could you repeat this, please?

15 MR. O'SULLIVAN: Objection, your Honour. That is the same

16 question in different clothing.

17 MS. McHENRY: Ma'am, with respect to the investigation up

18 until -- from the beginning until the present time has

19 there been evidence suggesting that Mr Delalic had

20 substantial and close contacts with decision-makers of

21 the Bosnian Army and authorities?

22 A. Yes, that is correct.

23 Q. Okay. If your Honours wish, I can ask her more

24 specifically without getting into it, but I do not

25 believe it is necessary. I just wanted to clarify that

Page 2690

1 particular, but if your Honours wish me to, I can ask

2 her more specifically?

3 JUDGE JAN: It is going to raise some more questions like

4 this. She is writing this letter on 19th March.

5 MS. McHENRY: Yes.

6 JUDGE JAN: That is the day when she concluded the

7 interview. Before the interview she had certain

8 information.

9 MS. McHENRY: Correct.

10 JUDGE JAN: On the basis of that she answered the questions

11 put to her.

12 MS. McHENRY: Yes.

13 JUDGE JAN: Was it anything in the information supplied to

14 her by Delalic that she was able to change her opinion

15 and say these things?

16 MS. McHENRY: Let me ask --

17 JUDGE JAN: When did the seizures take place?

18 MS. McHENRY: On 18th March, so it would have been --

19 JUDGE KARIBI WHYTE: The letter was on 19th.

20 MS. McHENRY: Exactly.

21 JUDGE KARIBI WHYTE: That is the day after.

22 MS. McHENRY: The interview started on 18th March and then

23 during 18th and 19th she learned information both from

24 Mr Delalic and she may have learned information about

25 the search warrants.

Page 2691

1 JUDGE KARIBI WHYTE: You are giving evidence.

2 MS. McHENRY: Your Honours, I am trying to respond to your

3 question.

4 JUDGE KARIBI WHYTE: No. If you can ask her points at

5 least so that she can explain the contradiction.

6 MS. McHENRY: Miss Manke, did you learn any information on

7 18th and 19th March 1996 that you did not have when the

8 interview of Mr Delalic started?

9 A. We learned an important amount of information during the

10 interview of Mr Delalic.

11 Q. Okay. Thank you. I have no further questions.

12 Excuse me, your Honour. May I just double-check that?

13 That is all, your Honour, at this point. Unless it is

14 clear in the record, we would formally move into

15 evidence the exhibits that this witness has testified

16 to, the Exhibits 99. Thank you.

17 MR. MORAN: Your Honour, again with my belt and suspenders

18 on, as long as it is not admissible against my client, I

19 don't have any objections?

20 I may have some if it becomes admissible against

21 my client. In those circumstances I would like her to

22 be subject to recall.

23 JUDGE KARIBI WHYTE: We have explained the circumstances

24 under which it could.

25 MR. MORAN: Yes, your Honour.

Page 2692

1 JUDGE KARIBI WHYTE: I think the circumstances do not

2 exist. It remains as only evidence against the maker

3 of the statement.

4 MR. MORAN: Yes, your Honour. That's why I am just being

5 doubly careful.


7 MS. RESIDOVIC (in interpretation): Your Honours, defence

8 counsel of Zejnil Delalic is opposed to this material

9 being accepted as evidence of the prosecution under the

10 number recorded by the Registry. The basis for this

11 objection is in the Decision of the Trial Chamber of 9th

12 October 1996, during a hearing in this Chamber on 17th

13 January 1997, and especially in Rule Number 89 of this

14 Tribunal, 89(d), which clearly indicates that:

15 "The Trial Chamber may exclude the submission of

16 evidence if the need for a fair determination is more

17 important -- is outweighed by the need to ensure a fair

18 trial".

19 The defence is of the opinion that in the interest

20 of a fair trial of my client it is necessary to exclude

21 and not allow the use of this evidence in the

22 proceedings. Rule 89 establishes that this Tribunal

23 will not be bound by national rules of evidence but does

24 not exclude reference to national rules.

25 Also in sub-rule (b) it is clearly stated that the

Page 2693

1 Rules must be used which will best favour a fair

2 determination of the matter before it and are consummate

3 with the general Statute and general principles of

4 law.

5 Arguing this submission, we state that on the

6 basis of today's testimony of the witness it can also be

7 established that while this interview was taken of the

8 accused, Mr Delalic, his rights were seriously violated,

9 his rights to counsel, because it is clear from the

10 testimony of the witness that my client was only read

11 out Rules 42 and 43, whereas the witness herself said

12 that on the basis of her legal training and the courses

13 she had in this Tribunal she did not have a full

14 understanding of what the right to counsel means.

15 The witness also said that on the list of lawyers

16 of such a big city as Munich there was not a single

17 lawyer who would understand and have a good knowledge of

18 the Rules of this Tribunal.

19 For this reason the witness confirmed that only a

20 single lawyer was offered to my client, who had defended

21 one of the accused before this Tribunal. The substance

22 of Rule 21 (4) (d) is that the accused should be

23 informed of his rights in a way that will be

24 understandable to an ordinary person, not a trained

25 lawyer. Clearly a simple reading of this Rule does not

Page 2694

1 fulfil that requirement. It can clearly be seen from

2 the prosecution statements that legal instructions

3 followed only when the accused was due to appear before

4 the court. Therefore, everything else that preceded

5 that was not done in a way as required by the interests

6 of a fair trial, and by Article 21 of this Tribunal.

7 A more detailed discussion of the meaning of the

8 right to counsel and the legal and social culture of my

9 client who comes from a particular part of the world

10 with a certain understanding of the role of counsel and

11 regarding the consequences of a statement before the

12 interrogator was clearly presented at a hearing of this

13 Trial Chamber on January 17th. This very fact that the

14 right to counsel was violated, in view of the prestige

15 and the importance of this Tribunal, should be

16 sufficient to exclude the evidence given by my client

17 without the presence of counsel.

18 Let me make a few more remarks. The witness

19 today alleged that from the very beginning she was

20 involved in the conduct of the investigations into this

21 case. The witness recognised and confirmed that she

22 had written a letter on March 6th. That is at a time

23 when my client was just -- was not even a suspect or an

24 accused, and facts were expressed that, after the

25 prosecution intervened, urgent measures were taken

Page 2695

1 towards my client. Therefore, his arrest was

2 unlawful.

3 Furthermore, on the basis of the facts contained

4 in the letter of the witness of 19th are such that the

5 results of those facts resulted in my client spending

6 two months in solitary confinement. This witness, as

7 well as others who interrogated my client, contrary to

8 Rules 42 and 43 of the Rules of this Tribunal, presented

9 themselves as interrogators of the Tribunal, which is

10 not correct, because, in fact, they were interrogators

11 of the prosecution. If we are talking about

12 interrogators of the court, which are not recognised by

13 these Rules, it is not -- they are not entitled to

14 interview my client. The only people who are allowed

15 to carry out interrogations are prosecutors. However,

16 the interrogators did not introduce themselves as

17 prosecutors, and therefore at that moment they were

18 being unfair.

19 Furthermore, at that moment the measures from Rule

20 40 were proposed to my client, which, though not

21 contained in the Statute, should be interpreted highly

22 restrictively, as they do not have grounds in any

23 specific Rule of the Statute of the Tribunal. Contrary

24 to this, Rule 40, which only envisages the right to

25 arrest a suspect for the collection of evidence and to

Page 2696

1 take all other necessary measures to prevent his escape,

2 and for this purpose my client was interrogated without

3 counsel, which is quite contrary to Rule 40.

4 If the Prosecutor were to claim that he has the

5 right to interrogate in view of the fact that he was a

6 suspect, then he could not do so according to the

7 provisions of Rule 40 of this Tribunal. The only

8 possibility for the presence of the Prosecutor would be

9 according to Rule 55(d), when there should be a warrant

10 of arrest.

11 There is no doubt, your Honours, that the

12 indictment against my client was issued on 21st March,

13 that Judge Jorda confirmed that indictment and that the

14 arrest warrant carries that date. From that date the

15 Prosecutor could be present at the arrest and carry out

16 the measures envisaged by the Rules. Since from the

17 very beginning that is the measures taken against him,

18 the method in which the interrogators introduced

19 themselves, the way in which the statement was taken,

20 therefore the entire procedure was contrary to the Rules

21 of this Tribunal, the general Rules and the rules of a

22 fair trial in the world, and especially as this had to

23 do with a man from a different social, cultural, legal

24 and linguistic background, that all reasons of the

25 defence counsel should be appreciated, so that a

Page 2697

1 mini-trial could be scheduled at which the defence would

2 confirm these allegations and invite before this Trial

3 Chamber witnesses who would directly before the Trial

4 Chamber confirm what we have already alleged in our

5 motion.

6 Therefore, our final proposal is that this

7 evidence be excluded and that we schedule a hearing at

8 which the defence would be able to present evidence in

9 support of this motion. Thank you, your Honours.

10 JUDGE KARIBI WHYTE: That is somewhat a confused

11 argument. You mean we reject this evidence and then we

12 hear it again? Let us hear.

13 JUDGE JAN: I have two questions to ask from the witness.

14 When was he arrested in Munich?

15 A. Mr Delalic was arrested on 18th March 1996.

16 JUDGE JAN: On the very day that you interviewed him?

17 A. Yes, that is correct.

18 JUDGE JAN: Did you give him any notice that you were

19 coming to interview him before interviewing him?

20 A. He was asked by the German police officers whether he

21 would agree to meet investigators.

22 JUDGE KARIBI WHYTE: Ms McHenry, let us hear your reply.

23 MS. McHENRY: I am not sure exactly what order to give my

24 response in. I have two basic points. One is that

25 the investigators and everyone in the Office of the

Page 2698

1 Prosecutor's Office scrupulously followed the Rules of

2 the Tribunal and the requirements for a fair trial.

3 That would be my first point.

4 The second point would be that the accused -- the

5 defence of Mr Delalic has made these exact arguments

6 about what the requirements of a fair trial are, and

7 whether or not different rules should apply because

8 Mr Delalic was from a different system, and what exactly

9 the prosecution represented in giving these rules.

10 There was a hearing on that, and on 9th October

11 the Trial Chamber gave a decision in which it fully

12 considered the requirements of a fair trial, both under

13 the Articles of the Statute, the Rules of this Tribunal,

14 and the general requirements for a full trial, and the

15 Trial Chamber correctly found that the Prosecutor had in

16 all respects followed the requirements for a fair trial,

17 for a fair interview, and that the accused had waived

18 his right to have counsel in particular, and I do not

19 believe that it is appropriate for the defence counsel

20 to be permitted to raise these same arguments a second

21 time.

22 I believe Rule 73, which requires that these

23 motions be brought immediately -- there are good reasons

24 for that and, in fact, Ms Residovic did that. There was

25 a hearing and the issue has been decided. The

Page 2699

1 prosecution certainly agrees that the defence of

2 Mr Delalic is allowed to challenge the admissibility

3 based on whether or not the statement was fully

4 recorded, and the court found that that would require

5 some factual evidence, and you have heard that factual

6 evidence, and it is that three times the tape stopped

7 and was immediately turned over. There was no

8 questioning that occurred that was not recorded. There

9 has been no suggestion, no allegation, no evidence that

10 anything improper happened in the few seconds that it

11 required to turn the tape over, and that any attempt to

12 state that Rule 43 was not complied with is incorrect.

13 Going a little bit more specifically, the Rules of

14 this Tribunal do state exactly what must be done. A

15 reading of the entire transcript as well as this

16 witness's testimony indicates that the accused -- every

17 right was given to the accused. It was made sure that

18 he understood the rights. During the interview at

19 several times the rights were repeated. He was asked

20 if he was sure he understood them; if he was sure he

21 wished to waive his right to counsel. The investigator

22 specifically read from Rule 42, which states that:

23 "When being questioned by the Prosecutor, a

24 suspect shall have the following rights".

25 That was done, and that is why, your Honours, in

Page 2700

1 the previous case in the October Decision this Trial

2 Chamber found -- with different judges -- this Trial

3 Chamber found that Rule 43 had been met in its entirety,

4 that the accused had waived its right to counsel.

5 It is what I can only sort of consider a bizarre

6 situation where only because the investigator suggested

7 to Mr Delalic more than they had to, that he should have

8 an attorney for this legal proceeding, that it appears

9 that we are getting into this argument. He had waived

10 his rights and he continued to waive them. They

11 suggested that for court he might want to have one.

12 They made sure that until he did have one he was willing

13 to continue the interview without an attorney. That is

14 something that this Trial Chamber has previously

15 found. I am not reading all the prior decision, but it

16 states that:

17 "Accordingly, the Trial Chamber finds that there

18 is no violation during the conduct of this interview of

19 the rights pursuant to sub-rule 42(a)."

20 Then the court goes on, and the same arguments

21 about whether or not something different needed to be

22 done or whether or not everything -- when there was a

23 suggestion of an attorney, that meant that the interview

24 had to be stopped, and the court again went on to say:

25 "It cannot be said that this interview continued

Page 2701

1 in violation of sub-rule 42."

2 With respect to Rule 43, which deals with

3 recording, the court found that:

4 "The defence would have to make a showing that

5 such an irregularity in recording has led to a violation

6 of the rights of the accused, Zejnil Delalic, that

7 warrants the exclusion of the evidence."

8 We submit that it is clear that there has been no

9 violation of the rights of the accused, Mr Delalic, with

10 respect to the recording, but the prosecution has done

11 everything that it is required to do. In fact, it has

12 done more than it is required to do, and it would be a

13 miscarriage of justice for this court not to admit the

14 statements under these circumstances. Thank you.

15 MR. OSTBERG: Your Honour, I have one point to add. There

16 was some debate on what was the Prosecutor doing and

17 what was an investigator doing. I would just direct

18 your Honours's attention to Rule 37(b) where it says

19 about the Prosecutor:

20 "His powers under part 4-8 of the Rules may be

21 exercised by staff members of the Office of the

22 Prosecutor authorised by him or by any person acting

23 under his discretion."

24 Thank you, your Honour.

25 JUDGE KARIBI WHYTE: Let us hear you. Do you have

Page 2702

1 anything to say?

2 MS. RESIDOVIC (in interpretation): Your Honours, the Trial

3 Chamber, reviewing our motion, submitted, in accordance

4 with Article 73, in connection with the interview of

5 Mr Zejnil Delalic, the Trial Chamber decided to that

6 purpose:

7 ".. and in the event that the transcript is used

8 as evidence during trial, the defence may submit an

9 objection about its admissibility according to Rules 89

10 and 85. Since the transcript of that interview has

11 still not been submitted as evidence and that the

12 defence counsel has to prove that that material should

13 be excluded, this motion is rejected."

14 This Trial Chamber passed a similar decision in

15 January this year. The Chamber did have a discussion

16 on legal matters, but the main argument was that the

17 motion was not submitted in a timely manner.

18 I draw the attention of your Honours to Rule 92:

19 "Wherefore a confession by the accused given

20 during questioning by the Prosecutor shall, provided the

21 requirements of Rule 63 were strictly complied with, be

22 presumed to have been free and voluntary unless the

23 contrary is proved".

24 This Trial Chamber has here for the first time an

25 investigator and a witness who showed during

Page 2703

1 cross-examination that this questioning was neither

2 correct nor fair, nor were his basic, fundamental rights

3 envisaged by Article 21 of the Statute respected.

4 We thank the representatives of the prosecution

5 for giving the accused even greater rights than belonged

6 to them. We are saying that this evidence should not

7 be admitted, because the rights of my client were not

8 respected according to the Statute.

9 In response to the comment of my learned

10 colleague, Mr Ostberg, I do not deny that in certain

11 provisions of the Rules there is a possibility for the

12 Prosecutor to act through its authorised

13 representatives, and even via other states. However,

14 the witness has confirmed that she introduced herself as

15 an investigator and not a person authorised by the

16 prosecution. Therefore, she incorrectly introduced

17 herself to our client and according to our law and the

18 rules of law in general, which Miss Manke is not

19 familiar with, statements before the police and other

20 authorities are not accepted in trial.

21 To support this, let me mention that when my

22 client was taken before the court he used his right to

23 silence on March 19th and on 24th April in German

24 courts, when for the first time he received an

25 indictment in his own language, and the confirmation of

Page 2704

1 that indictment as well as the warrant of arrest.

2 Therefore, I repeat that throughout the procedure,

3 throughout the proceedings, measures taken against my

4 client, special measures of arrest were completely

5 unfair, and the admission of this statement would mean

6 to legalise the unlawful arrest and the taking of a

7 statement at a moment when the client clearly did not

8 understand what was read out to him.

9 Your Honours, without the interpreters you would

10 not understand what I am saying. When a foreigner is

11 being read foreign rules, they are unknown to him, not

12 because he doesn't know the law, but because he does

13 know the law, but the law of his own country. As you

14 said this morning, the Trial Chamber will respect the

15 general rules of law and the general rights of the

16 defendants, and I therefore propose that this evidence

17 be rejected.

18 JUDGE KARIBI WHYTE: The Trial Chamber will have a break

19 now and they will return at 4.30. We will indicate

20 then.

21 (4.05 pm)

22 (Short break)

23 (4.30 pm)

24 JUDGE KARIBI WHYTE: Good afternoon, ladies and

25 gentlemen. We have considered the submissions made by

Page 2705

1 counsel and we have come to the conclusion that we will

2 admit the evidence mainly for the fact that the question

3 of the violation of the right of the suspect under Rule

4 42 has not been established and it has been decided

5 before in this Trial Chamber that there has been no

6 violation of that right, and I think perhaps one could

7 go further to say that those rights are rights of a

8 suspect and they are not the rights of an accused under

9 Article 21, and it is Rule 42 and 43 which govern the

10 conduct of proceedings under Rule 40.

11 Apart from that, we have not gone further to

12 discuss the authenticity or the correctness of the video

13 recordings and the like and that is still challenged.

14 That will come in any time it is being played. If

15 there is any good reason why some of the handicaps about

16 them could lead to any prejudice to the accused person,

17 then that can be taken up, but for the time being the

18 defence has not shown any reason why it should not be

19 admitted. We will give our fuller reasons later.

20 I think I might add we discussed the question of

21 the value of what I would regard as the weight to be

22 attached to much of the evidence which is quite material

23 in the circumstances in which it was taken, and the

24 nature of the tapes themselves might be very important

25 during cross-examination and the like. So that will

Page 2706

1 also feature very largely, even though it has been

2 admitted in evidence, because there is nothing to show

3 that it is inadmissible. As I said, we have still

4 decided what here was the rights of the suspects, not

5 the rights of an accused persons. I think that is all

6 for the time being.

7 MS. McHENRY: The prosecution, just for your information --

8 the prosecution's next witness, your Honour, would be

9 Mr Bart d'Hooge with respect to the atatements of the

10 other accused.

11 MR. GREAVES: It is in relation to that that I at this stage

12 have an application to make to you. I am fully

13 conscious that the motion that I have filed only arrived

14 on your desks this afternoon. For that apologies, but

15 your Honours will perhaps, knowing the circumstances in

16 which I arrived in this case, will forgive me for that

17 at the very least.

18 Your Honour, the proposition that I make by that

19 motion is this: that all evidence of that which was said

20 by the defendant Mr Mucic to the Austrian Police and to

21 the Office of the Prosecutor in Vienna over the period

22 18th March-21st March 1996 should be excluded, and if I

23 can just give you a quick resume of the matters we say

24 are relevant to that --

25 JUDGE KARIBI WHYTE: Are you sure the prosecution has

Page 2707

1 already reacted to your motion?

2 MR. GREAVES: I have a feeling at the very moment they are

3 reacting on their bench, because I know they only got it

4 just before we returned into court.

5 Can I just carefully set out what the proposition

6 is, so that each of my learned friends across the way

7 know exactly what I am saying? We say that there has

8 been a series of grave breaches of the following Rules

9 of this Tribunal: 42(a), 42(b), the generality of Rule

10 43 and in particular 43(3), and that there has been a

11 specific act of oppression by the investigator in this

12 case, and that there are similar arguments concerning

13 the different systems of law that were applied to this

14 man, and he was subjected to court procedures by the

15 Austrian courts, where the reading of his rights appears

16 to be very different from the standard that obtains in

17 this Tribunal, and that, as a result of those, his right

18 to counsel was not voluntarily waived, and he did not

19 take a properly informed decision about that.

20 Your Honours, attached to the motion I have filed

21 -- and can I mention, so you quickly get to the point

22 about oppression -- were some documents. Those are

23 documents in which the defendant, when seen by the

24 Austrian authorities, quite clearly sets out his desire

25 to have a lawyer. If I might just specifically refer

Page 2708

1 you to them, he is seen by a lady judge at 11.05 in the

2 morning. He says:

3 "I want a lawyer. I hereby request that a lawyer

4 be assigned to me. I do not have a lawyer of my own."

5 He is seen by another judge in the afternoon at

6 14.20--15.20 hours and he reiterates that request.

7 Within fifteen minutes he appears to have changed his

8 mind as a result of a conversation which the

9 investigator says "we have just had". That is a

10 conversation which is not the subject of any videotape,

11 audio-visual recording, conventional cassette recording

12 of any kind, and it is the defence contention that

13 during the period of that conversation this defendant

14 was oppressed by that investigator and persuaded,

15 effectively against his will, to do without having a

16 lawyer.

17 Your Honours will know that that would amount to a

18 serious breach of the following Rules: 89(c), 89(d) and

19 Rule 95 in particular. Your Honours have heard me

20 refer to Rule 95 on a number of occasions. It is an

21 important Rule.

22 Your Honour, the process of oppression begins and

23 can only be properly determined by viewing not just the

24 evidence -- hearing the evidence of Mr d'Hooge, but also

25 the prior evidence of the police officer who dealt with

Page 2709

1 him, as it were, within the Austrian police part of his

2 detention in Vienna.

3 Can I now just take you back to the Decision in

4 Tadic? I am sorry if I bat on about the Decision in

5 Tadic, but it is an important one concerning, on the

6 face of it, hearsay evidence. We say that that

7 Decision actually applies to all evidence in this case,

8 hearsay and other forms of evidence. In order to

9 establish the voluntariness of this series of interviews

10 with the defendant, the prosecution has to do three

11 things: it has to show that it is reliable; it has to

12 show that it is probative and relevant; and it has to

13 show, in my submission, that it ought not to be excluded

14 under Rule 89(d).

15 In so doing it has, as we discussed yesterday in

16 connection with this Decision -- it has to lay a proper

17 foundation for reliability before it can be admitted,

18 and in the case of a suspect who is questioned, the

19 burden of proof lies throughout on the prosecution to

20 prove those elements of its case.

21 As we say that the process of oppression and this

22 defendant being misled, effectively, about what his

23 rights were began with the police officer who started to

24 interview him the night before he was put before the

25 courts in Vienna, the prosecution can only begin to

Page 2710

1 found the issue of reliability by calling first

2 Mr Morbauer, who I think is named in the list of

3 prosecution witnesses and who was the police officer who

4 interviewed him in Vienna, can only begin to found that

5 by calling him first. By calling in relation to this

6 defendant the OTP investigator first it is simply going

7 to confuse your Honours and not enable you to take a

8 proper decision on the issue of excluding this

9 evidence. It can only be done in a logical, proper

10 order, and my submission to your Honours is that that is

11 the process that should be followed in the case of

12 Mr Mucic, that you should not hear this witness on the

13 interviews of Mr Mucic before you hear the police

14 officer from Vienna, because only by doing that can

15 a proper, informed decision on admissibility be arrived

16 at and the Rules of the court complied with, because

17 what it says is the prosecution has to lay its

18 foundation properly. In our submission, it cannot do

19 so if it approaches it in this way.

20 I hope that is a reasonably concise setting-out of

21 my argument. I can assist your Honours further if you

22 need any assistance with it.

23 JUDGE KARIBI WHYTE: If your main argument is that the

24 accused was coerced into changing his mind or making

25 certain statements, then the burden is on the

Page 2711

1 prosecution to show that they did not. So they now

2 have to show that it was his own free will and it was

3 voluntary.

4 MR. GREAVES: It is going to raise a logistical problem for

5 them, in my submission, because, because this police

6 officer from Vienna has to start the ball rolling, it

7 does not matter what happens in relation to the other

8 two defendants, but, as far as my client is concerned,

9 that evidence can only start with Mr Moerbauer. It

10 cannot start with this officer.

11 JUDGE KARIBI WHYTE: Yes. May we hear you, Ms McHenry?

12 MS. McHENRY: Yes, your Honour. Briefly, as counsel said,

13 the prosecution just received this motion and I think

14 one of our main points brings up this issue, which is

15 that the interview of Mr Mucic occurred in March of

16 1996. It is a requirement that counsel bring such

17 motions within 60 days, and it is expressly so that

18 these issues are not decided at the last minute. In

19 April defence counsel was given a copy and transcript of

20 Mr Mucic's interview in April of 1996, and it is now May

21 of 1997, and this is the first that we are hearing that

22 there is any allegation of oppression or something like

23 this. I have, in fact, no information, although we

24 believe the investigator should be called.

25 We believe with respect to what happened to the

Page 2712

1 Vienna Police that the interview will show that with

2 respect to the Office of the Prosecutor interview the

3 accused voluntarily waived his rights, and there was no

4 unfair pressure or coercion put on him.

5 So it is since April of 1996 that the defence has

6 had the statements and I do not know where this

7 allegation of oppression comes from. All I can assume

8 is that it comes from Mr Mucic himself, in which case

9 again I do not think there is any reason why this could

10 not have been brought within the first 60 days. So in

11 these circumstances we would argue that it is untimely

12 and unfair.

13 We believe that we should call the investigator

14 and we believe the record will reflect that the accused

15 voluntarily waived any rights he had without any unfair

16 pressure or coercion being placed upon him.

17 JUDGE KARIBI WHYTE: Are you suggesting that if an accused

18 person accuses your office of coercion or inducement you

19 have no duty to establish that that was not the

20 position.

21 MS. McHENRY: No, your Honour, I am not suggesting that.

22 What I am suggesting is, in fact --

23 JUDGE KARIBI WHYTE: You say it is time-barred. Time can

24 bar it?

25 MS. McHENRY: That is correct. Time can bar it.

Page 2713

1 I believe that is the exact purpose of Rule 73, just to

2 make sure that these issues are brought up before, and,

3 for instance, in this case I will -- had this been

4 brought up before, Mr Mucic and his counsel had agreed

5 to be interviewed at other occasions, but, because they

6 had no objection to the March interview, it was

7 determined that it was not necessary. Had there been

8 any allegation that this had been -- that there had been

9 anything improper, his counsel -- and I had

10 conversations with his counsel -- had indicated that he

11 would be willing to be interviewed again. So I think

12 it is very unfair. I do certainly believe when your

13 Honours hear this witness they will be in a position to

14 find that the accused -- that the statement is

15 admissible also, because, in fact, we believe that. So

16 there are two separate arguments.

17 JUDGE JAN: Which is the relevant Rule you are referring

18 to, 73?

19 JUDGE KARIBI WHYTE: I think the accusation is against a

20 particular witness, is it not?

21 MS. McHENRY: Your Honour --

22 JUDGE JAN: Just now a distinction has been drawn between a

23 suspect and an accused. Rule 73 applies:

24 "Exclusion of evidence obtained from the accused".

25 It does not use the word "suspect".

Page 2714

1 The limitation would apply to that. Read that.

2 MS. McHENRY: Yes, your Honour.

3 JUDGE JAN: You must have heard the learned Presiding Judge

4 drawing the distinction between a suspect and an

5 accused.

6 MS. McHENRY: Yes, your Honour, but I believe in this case

7 it is clear that "accused" means -- there are only

8 accused and the Rules always refer to accused.

9 MR. GREAVES: The Rules refer to suspects and accused and

10 there is a distinction drawn between them.

11 MS. McHENRY: That's right but with respect to preliminary

12 motions by an accused, a person will only be accused --

13 JUDGE JAN: Exclusion of evidence obtained from the

14 accused, not a suspect. You have just heard the

15 distinction being drawn between accused and suspect?

16 MS. McHENRY: Yes, your Honour. I understand your

17 argument.

18 JUDGE JAN: It is just an observation, not an argument.

19 MS. McHENRY: Your Honour, excuse me. I understand the

20 observation, but the prosecution would contend that

21 "accused" in this case refers to preliminary motions by

22 accused, and that if someone -- if evidence is seized

23 from someone at the time they are a suspect and they

24 subsequently become an accused, Rule 73 applies. I

25 note in the prior Decision by this Trial Chamber of

Page 2715

1 October that we were referring to it is exactly the same

2 position, and the court did find Rule 73 applicable.

3 JUDGE JAN: I was just drawing your attention to the

4 distinction just drawn.

5 MS. McHENRY: Yes, your Honour, I see your point.

6 JUDGE KARIBI WHYTE: Anxiety is mainly in the fundamental

7 nature of the contention. If someone is contending

8 that he did not make a statement voluntarily, it might

9 not be in the interests of justice to exclude that

10 contention. It might be very detrimental to the

11 administration of justice for one to exclude it merely

12 because it was not raised in time, because it is

13 fundamental to the defence as a whole.

14 MS. McHENRY: Well, your Honour, I certainly, for instance,

15 believe that all the rights in Rule 73, including

16 jurisdiction, the most basic of the rights -- I believe

17 that they are fundamental rights and there is nothing in

18 what the prosecution is saying that suggests that the

19 voluntariness of a confession or of a statement is not a

20 fundamental right. We would certainly agree with that,

21 but we would contend that Rule 73 states that such

22 fundamental issues, because they are in part so

23 important to the case, must be brought within 60 days

24 unless good cause can be shown. I think that is

25 necessary so that there can be justice for both sides

Page 2716

1 and that this court can find the truth.

2 Now, in fact, let me be very clear. We have no

3 information whatsoever to suggest that the statement is

4 not voluntary, and we believe that we will be able to

5 establish that, but -- so in the event your Honours were

6 to consider waiving this right, we believe we will be

7 able to show it, although I do not know the specifics

8 exactly of even what Mr Greaves is talking about, which

9 is, I think, another reason why Rule 73 requires that

10 these things be made within the first 60 days, absent a

11 showing of good cause. Given that the statements were

12 provided to the accused in April of 1996, immediately

13 after he was brought to The Hague, we do not believe

14 there has been any showing of that.

15 MS. TAPUSKOVIC (in interpretation): Your Honours, if you

16 allow me to respond to the learned colleague McHenry, I

17 do have to say yes, this opportunity did exist in April

18 of 1996, but the defence team that is sitting at this

19 bench today was not there at that time. We have a

20 responsibility to Mr Mucic as of the date of our

21 appointment. We do not want to speculate on what could

22 have happened and been at that time.

23 Rule 73(c) points out the failure to apply within

24 the time limit prescribed constitutes a waiver of the

25 right. However, it further says:

Page 2717

1 "The Trial Chamber may grant relief from the

2 waiver upon the showing of good cause."

3 This is exactly what we are trying to do. We are

4 trying to point to good cause. Why do we do that? We

5 do not want to bring this Rule 73(c) -- bring in through

6 the back door. There are in these very Rules -- they

7 give us the opportunity to not present certain evidence

8 before this Trial Chamber. In Tadic Judge McDonald

9 said that unfortunately the Rules of Procedure and

10 Evidence of this Tribunal only contain ten provisions

11 regarding the evidence. In other words, she pointed to

12 a certain paucity of the Rules governing the

13 presentation of evidence.

14 However, in this present case we have enough

15 provisions. We, that is the defence of Mr Mucic, are

16 trying to show that the statements that the Prosecutor

17 is trying to introduce here, which are the statements

18 given to the Vienna Police and to the investigators of

19 this Tribunal, have not been produced in a way

20 proper -- based on the Rules of this Tribunal, then

21 that constitutes good cause that allows us to file a

22 motion pursuant to Rule 73, and the Trial Chamber has

23 the right to rule on this, and withdraw and annul the

24 waiver of rights of the accused, and I do also point to

25 the difference between the suspect and the accused in

Page 2718

1 these rules.

2 MS. McHENRY: May I respond just very briefly, your Honour?

3 JUDGE KARIBI WHYTE: Yes, you may respond.

4 MS. McHENRY: Your Honour, I have all the respect for my

5 learned opposing counsel with respect to the accused

6 Mr Mucic, but this brings up -- the argument being made

7 here is the argument that is sort of continually made,

8 which appears to be whenever new counsel comes along and

9 makes a different strategy decision, that somehow

10 constitutes good cause, and the prosecution is very

11 troubled by this suggestion, especially given the

12 continuing changes in defence counsel.

13 The prosecution has tried and has not interfered

14 with the accused and the relationship with their defence

15 counsel. It is not our business and we do not want to

16 interfere, but we are unable to accept the idea that

17 whenever new counsel comes along and does not like a

18 prior Decision, especially with the benefit of

19 hindsight, that that constitutes good cause,

20 particularly when we are two months into trial.

21 I think it is very unfair.

22 I would also point out that although as of now at

23 least Mr Tapuskovic was appointed counsel in July of

24 1996, I believe that even if there had been some

25 argument that first counsel, Mr Rhodes -- that the 60

Page 2719

1 days should not apply to him, in fact, I believe -- I am

2 not positive of this -- in fact, Judge McDonald had

3 specifically given new counsel appointed in July 1996 an

4 additional 60 days to bring motions under Rule 73. So

5 I -- the prosecution both with respect to this accused

6 and with respect to other accused thinks the argument

7 that new counsel has come is not good cause.

8 MR. GREAVES: Can I pose this question for my learned friend

9 to answer? If there is a prima facie case that I can

10 demonstrate through the paper that I have served on the

11 court that there is a proper argument that there was not

12 a voluntary waiver of counsel, would she say it was fair

13 to deprive him entirely in this trial of an opportunity

14 to litigate that matter? How does she answer that

15 question, please?

16 MS. TAPUSKOVIC (in interpretation): If you will allow me,

17 your Honours, to address you one more time, I think that

18 the answer of the Prosecutor that we received now would

19 have been the same in July in 1996 had our client filed

20 the same motion.

21 We are -- those are not our arguments, though.

22 The introduction of this evidence has only come up now

23 and so this is why these arguments are coming up.

24 Whenever previous attempts have been made to do this,

25 the responses, and not just to this counsel but to the

Page 2720

1 counsel of all four of the accused -- the answer was

2 that this will be argued when these questions arise.

3 These questions have now arisen.

4 JUDGE KARIBI WHYTE: Thank you very much for your

5 arguments. Actually we have looked at the Rules. In

6 determining what is a good cause I think sometimes

7 through the weight of the argument itself and some other

8 surrounding circumstances -- perhaps the prejudice

9 against an accused person might be more if it was not

10 allowed might be a strong reason for accepting the

11 argument as a good cause for waiving whatever

12 exclusionary provision there is. I think in these

13 circumstances it is necessary to waive the 60-day Rule

14 and allow them to argue it.

15 MR. MORAN: Excuse me, your Honour. I have a more

16 fundamental problem on this witness. When my client

17 was interviewed twice there were as best I can determine

18 five people in the room. The defendant himself, an

19 interpreter, Mr d'Hooge, Mr Karabdic and Ms McHenry, and

20 it is conceivable that the two lawyers could be

21 witnesses on the admissibility of this. I do not think

22 it would be proper for Mr Karabdic to be handling this

23 as an attorney, but at the same time as a potential --

24 because he is a potential witness and that goes for all

25 of the lawyers that were sitting in that room when these

Page 2721

1 statements were taken, because there is the potential

2 risk that they might be -- either Ms McHenry or

3 Mr Karabdic may be a witness on the issue of

4 admissibility and I want to bring that to the court's

5 attention.

6 MR. ACKERMAN: Your Honours, I have filed yesterday, taking

7 perhaps a different tack from my co-counsel, from my

8 reading of Rule 73, a motion for an extension of time in

9 which I could file a motion under Rule 73 to enquire

10 into the admissibility of my client's statement. Rule

11 73, among other things, has some internal inconsistency

12 that could make it operate in the very harshest of

13 fashions. Rule 73 says that the motions must be made

14 within 60 days of one's initial appearance, so that if

15 one made an initial appearance and his statement was

16 taken 61 days later, under this Rule he would never be

17 able to challenge it, and, in fact --

18 JUDGE KARIBI WHYTE: I thought statements could be even

19 taken after initial appearance?

20 JUDGE JAN: The Chamber has already decided to waive the

21 time bar. Why are you arguing these points.

22 THE INTERPRETER: Microphone please.

23 JUDGE JAN: 73 then goes out of your way.

24 MR. ACKERMAN: I am sorry. I thought that was only with

25 respect to Mr Mucic?

Page 2722

1 JUDGE KARIBI WHYTE: No, definitely what you are saying,

2 even if you argue that a statement could be taken after

3 initial appearance, usually statements have been taken

4 before initial appearance.

5 MR. ACKERMAN: In the case of Mr Landzo it was not. It was

6 taken 30 days after the initial appearance, leaving him

7 30 days within which to file his challenge under the

8 Rule.

9 MS. McHENRY: If I may be heard, your Honour, we do not

10 disagree that there might be some situations where a

11 statement is taken after 60 days and we would certainly

12 believe that that could constitute good cause and we

13 would never be in a position to argue otherwise. With

14 respect to the waiver of Rule 73, I understand that your

15 Honours have ruled, because of the specific allegations

16 made by Mr Greaves, which are so serious, that Rule 73

17 -- that you are waiving the requirements of Rule 73.

18 I believe the situation with Mr Landzo and the reasons

19 that he seeks to waive Rule 73 are entirely different,

20 and that we would wish to be briefly heard on why,

21 certainly with respect to Mr Landzo, there should not be

22 any waiver of Rule 73, since there is no -- since there

23 is no similar allegations. In fact, Mr Landzo was

24 represented by counsel during his interview. So if you

25 would like me to briefly respond now, I can do that.

Page 2723

1 JUDGE KARIBI WHYTE: Actually when I made the Ruling,

2 I stated very clearly that the grounds for seeking a

3 waiver would determine whether it could be granted or

4 not, whether it could be a good cause. If it is so

5 serious that there will be substantial prejudice to the

6 accused person, definitely the exclusionary provisions

7 could not apply. This is what I stated. Now if you

8 give other reasons which are not as weighty as that,

9 perhaps one might think twice. It is not a matter of

10 applying a soft cause. If you have to give good cause,

11 as 73 says, you have to show good cause, and good cause

12 does not necessarily mean any cause which perhaps you

13 think is satisfactory to you.

14 MS. McHENRY: Your Honour, I believe I understand what you

15 have said and your reasons for waiving it with respect

16 to Mr Mucic, but, for exactly the reasons you say, that

17 the allegations of what the good cause is and the

18 allegations of what rights have been violated, may

19 affect the balancing process of what constitutes good

20 cause. We do not believe, with respect to Mr Landzo,

21 that there can be any argument that good cause exists,

22 and we would like to be heard on that particular issue

23 with respect to Mr Landzo. I understand that your

24 Honours have ruled with respect to Mr Mucic, based on

25 why he claims good cause.

Page 2724

1 MR. MORAN: Your Honour, just because I promised the court

2 earlier this morning I would file something, I have

3 filed something based on the court's Ruling earlier

4 today and I do not think that either the Trial Chamber

5 or the prosecution has it to hand.

6 JUDGE KARIBI WHYTE: Yes. Let us hear Mr Ackerman.

7 MR. ACKERMAN: Your Honour, I have a proposal for the court,

8 a suggestion for the court, if I may. I filed my

9 motion yesterday. If the prosecution even has it yet,

10 I do not know?

11 MS. McHENRY: We have and we are able to respond now.

12 MR. ACKERMAN: Okay. Mr Moran apparently just filed a

13 motion today. Many of the issues are similar and it is

14 now after 5 o'clock on Friday. Might I suggest that

15 the prosecution and all the parties have the time

16 between now and the next time the court sits to ponder

17 these issues and be prepared to make our arguments a lot

18 more precise and a lot more effectively to the court and

19 then the court could decide them at that time. In

20 addition, the court would have the benefit of that time

21 to look at all the papers that have been filed and

22 consider the matter carefully. That is my proposal.

23 Thank you.

24 JUDGE KARIBI WHYTE: It is a very thoughtful proposal.

25 I think it is a good idea. I have not read your paper

Page 2725

1 at all. I have not read the motion. Neither have

2 I seen Mr Moran's motion.

3 MR. MORAN: Your Honour, again I apologise for the

4 lateness. It's explained, I think, in the papers.

5 JUDGE KARIBI WHYTE: I suppose the next hearing date

6 I think will be on Wednesday next week, because we will

7 not be sitting on Monday or Tuesday. So we should be

8 able to look at it afresh. If you have any reasons why

9 you should change your mind, you can do that.

10 MS. McHENRY: Yes, your Honour. I understand. If I could

11 just ask with respect to Mr Mucic, for who good cause

12 has been raised, either now or immediately after court

13 if Mr Greaves could indicate to us exactly what the

14 oppression, alleged oppression was, I think that might

15 enable us to more productively use the remaining time to

16 look into what is a serious allegation. In the motion

17 of Mr Greaves it does not say anything, so either here

18 in open court or immediately afterwards I think it would

19 only -- it is fair to the prosecution to be at least

20 given some idea of the specifics of this, so we can try

21 to examine the matter.

22 JUDGE KARIBI WHYTE: I remember his mentioning an Austrian

23 police officer who caused the accused person to change

24 his mind within a few minutes.

25 MR. GREAVES: Of course I will do what I can to assist my

Page 2726

1 learned friend. That is only fair for me to do that.

2 It is on this condition, though, that nothing of what

3 I say to her is communicated to the witness in question,

4 because I do not wish to alert him so that he can make

5 up an answer to the question when it comes.

6 MR. OSTBERG: I do not think that the prosecution can adhere

7 to such a suggestion.

8 MR. GREAVES: There is a real danger that if the prosecution

9 discuss what I am about to tell them, that the witness

10 will be alerted to what has happened, and it would not

11 be the first time in a court of criminal law that a

12 witness who has been alerted to an allegation that has

13 been made against him spends the next five days thinking

14 up how he is going to deal with it and get round it.

15 It would be grossly unfair if the witness was given an

16 opportunity to go away and think of what he is going to

17 do to answer it. That is my submission.

18 MR. OSTBERG: If your Honour pleases, if I may respond to

19 that, why should Mr Greaves have the benefit of

20 surprise, attack a witness and bring allegations so

21 grave that the Chamber has found grounds to waive their

22 60 days rule. I cannot see that. I think it would be

23 fair to the prosecution and even to our coming witness

24 to know what all this is about. I cannot see why we

25 should have surprise allegations in the court room.

Page 2727

1 JUDGE KARIBI WHYTE: I do not know what you regard as a

2 surprise here. The general allegation is one of

3 oppression. The content of the oppression is what I do

4 not know. That is what he is keeping to himself. The

5 accused person who was oppressed or coerced into

6 changing his view. That is what he said. If you want

7 to know the details of the oppression, that is a

8 different matter.

9 MR. GREAVES: It may be naive of me but I had always rather

10 thought that all cross-examination was supposed to be a

11 surprise to witnesses.

12 JUDGE KARIBI WHYTE: Well, I know he has to be told -- he

13 must have mentioned the name of the particular witness

14 who you are expecting to be invited to defend this and

15 then he knows there is an allegation of oppression

16 against him. If it is true, then he should know what

17 type of transaction transferred between himself and the

18 accused.

19 MS. McHENRY: Yes, your Honour. At this point we are not

20 even sure who the allegation is against. Is it the

21 witness who is coming or is it against the Austrian

22 police officer? I have to say we don't even understand

23 that.

24 JUDGE JAN: I thought he made the allegation against the

25 investigator. He said: why should the accused change

Page 2728

1 his mind when twice he appeared before a judge saying:

2 "I want a counsel." Then something happened between

3 the investigator and the accused and the accused then

4 suddenly says: "All right. I waive my right." I think

5 this was the allegation which Mr Greaves may have had.

6 MR. GREAVES: Your Honour has got it in one.

7 MS. McHENRY: The Office of the Prosecutor investigator?


9 MS. McHENRY: Thank you.

10 JUDGE KARIBI WHYTE: Actually I thought it was very

11 straightforward and clear. I did not see this

12 confusion.

13 MS. McHENRY: I am sorry for my confusion but I was

14 confused.

15 JUDGE KARIBI WHYTE: Thank you very much, ladies and

16 gentlemen. I think that is the end of the proceedings

17 for the day. We will meet on Wednesday, 14th so that

18 we can have these matters discussed. Thank you.

19 (5.15 pm)

20 (Hearing adjourned until 14th May 1997 at 10.00 am)

21 --ooOoo--