Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3512

1 Thursday, 5th June 1997

2 (10.00 am)

3 Mr Hannes Gschwendt (continued)

4 Cross-examined by Ms Residovic

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

6 Can we have the appearances?

7 MR. OSTBERG: I'm Eric Ostberg and with me appearing for the

8 Prosecution this morning is Ms. Teresa McHenry,

9 Mr Giuliano Turone, Mr Stefan Waespi and our case

10 manager, Ms. Elles van Dusschoten. Thank you.

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

12 Honours. My name is Edina Residovic, defence counsel

13 for Mr Zejnil Delalic. With me defending Mr Delalic is

14 Mr Eugene O'Sullivan, Professor from Canada.

15 MR. OLUJIC (in interpretation): Good morning, your

16 Honours. My name is Zeljko Olujic, defence counsel for

17 Mr Zdravko Mucic. With me in the defence team is my

18 learned colleague, Michael Greaves, attorney from

19 London.

20 MR. KARABDIC (in interpretation): Good morning, your

21 Honour. I am Salih Karabdic, lawyer from Sarajevo,

22 defence counsel for Mr Hazim Delic. With me in the

23 team is Mr Thomas Moran, attorney from Houston, Texas.

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

25 Ackerman, appearing on behalf of Mr Esad Landzo.

Page 3513

1 Finally she has returned to our midst. Cynthia

2 McMurrey is back from the United States and with us

3 today.

4 JUDGE KARIBI WHYTE: Welcome, Cynthia.

5 MS. McMURREY: Thank you, your Honour.

6 JUDGE KARIBI WHYTE: Ms Residovic is continuing on

7 cross-examination. Is starting this morning reducing

8 the time or increasing it? Have you invited the

9 witness?

10 (Witness enters court)

11 (Interpreter enters court)

12 JUDGE KARIBI WHYTE: Kindly inform the witness he is still

13 on his oath.

14 THE REGISTRAR: Mr Gschwendt, may I remind you that you are

15 still under oath?

16 A. (In interpretation): Yes, I understand that.

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

18 Honours. Good morning, Mr Gschwendt. I thought

19 things over, your Honours, and --

20 A. Excuse me. I have no translation.

21 Q. Good morning, Mr Gschwendt. Your Honours, I will

22 shorten my cross-examination so as to give my colleagues

23 a chance and to leave a couple of questions for the next

24 witness. Thank you.

25 Mr Gschwendt, yesterday in the course of your

Page 3514

1 testimony before the court you said that you met with

2 representatives of the International Tribunal at the

3 hotel late at night; is that correct?

4 A. Yes.

5 Q. On that occasion you discussed the operation that had

6 been planned for the next day?

7 A. The operation hadn't been scheduled for the following

8 day. It had been scheduled for the day after that

9 originally. The operation was planned for 19th March.

10 Q. Mr Gschwendt, did you agree on that occasion to carry

11 out the search and seizure of the apartment in

12 accordance with Austrian law?

13 A. That is right, yes. In Austria we can only operate on

14 the basis of Austrian law.

15 Q. Mr Gschwendt, can you tell me whether it is true that

16 during the search and confiscation of objects on the

17 spot in the apartment in which Mr Delalic resided and in

18 the premises of INDA-BAU, where Mr Delalic also stayed

19 occasionally, representatives of the International

20 Tribunal were not present?

21 A. As far as I know they were not present, no.

22 Q. Thank you, Mr Gschwendt. Mr Gschwendt, can you tell me

23 whether the right to counsel is acquired by the accused

24 the very moment he is informed of that right?

25 A. That is a legal question that I would not feel entitled

Page 3515

1 to address. A judge would be in a position to answer

2 that question.

3 Q. Mr Gschwendt, I have followed closely your replies in

4 answer to questions put by my distinguished colleague,

5 Mr Moran. As you have considerable experience, is it

6 true that in the process of the investigations carried

7 out by the police defence counsel is not present, the

8 defence counsel of the suspects?

9 A. In this specific instance none was present, because

10 Mr Mucic had not asked for one.

11 Q. Mr Gschwendt, please, does the investigating judge in

12 your country give the same warning that you give to the

13 suspect in connection with his right to remain silent?

14 A. I can't answer that with regard to what happens at the

15 examining magistrate's. There's no one from the police

16 present there. As I said yesterday, towards 1.30 in

17 the morning, early in the morning of the 19th, in other

18 words, Mr Mucic was transferred to the court's custody

19 and that was the end of all contact with Mr Mucic on the

20 part of the Vienna police.

21 Q. Mr Gschwendt, I appreciate the fact that you are not

22 familiar with certain legal issues, so I will not insist

23 on those questions. However, you confirmed that you

24 were familiar with the law on criminal procedure of

25 Austria. Can you tell me whether according to the

Page 3516

1 criminal procedure of Austria there are certain criminal

2 offences in which defence counsel is obligatory?

3 A. That is right. As of a certain sentence that's

4 provided for, there are cases where the accused must

5 have legal counsel, but that is only in respect of

6 procedure. It has nothing to do with police

7 measures. That is to say that is to do with the legal

8 proceedings.

9 Q. Can you tell me, Mr Gschwendt, is defence obligatory in

10 the case of serious criminal offences?

11 A. Again that's a question that I can't answer. It's a

12 legal issue. I'm not an expert in Austrian law, I'm

13 afraid. I'm a policeman, an operative.

14 Q. Yes, Mr Gschwendt, but you are familiar with the law on

15 criminal procedure on Austria. I showed you the book

16 yesterday and you said you were familiar with it.

17 Isn't that so? Still I do not insist on an answer to

18 that question, as you said you didn't know. However,

19 as you do know that counsel is obligatory for some

20 criminal offences, can in such a situation the accused

21 waive his right to defence counsel according to Austrian

22 law? Is it correct that in that case he cannot waive

23 that right?

24 A. As I said, this is in connection with legal proceedings,

25 that is to say before the court. It's not relevant to

Page 3517

1 police operation, but quite frankly I can't address

2 these legal issues. I'm not entitled to.

3 Q. Mr Gschwendt, the statements that you take at the police

4 without the presence of defence counsel cannot be used

5 as evidence in court; is that correct?

6 A. No, that is not correct. Everything can be used as

7 evidence before the court.

8 Q. Mr Gschwendt, is it true that Vienna is a very open

9 city?

10 A. Well, if you're asking me for my opinion, I'd tend to

11 say yes, but I assume there's different opinions on the

12 subject.

13 Q. As a policeman you know that there are more than 100,000

14 foreigners living in Vienna today. Is that true?

15 A. Yes, that is true.

16 Q. Among those more than 100,000 foreigners there are tens

17 of thousands from the territory of the former

18 Yugoslavia; is that correct?

19 A. Yes, that is correct.

20 Q. Can you tell me, Mr Gschwendt, which peoples from the

21 territory of the former Yugoslavia are the most

22 represented: the Bosnians, the Serbs or the Croats? Do

23 you have those figures?

24 A. I certainly don't have the figures in my mind, but a lot

25 of people from the former Yugoslavia fled, given the

Page 3518

1 events that took place there, and I believe at one point

2 in time it was the Bosnians that were the largest group

3 represented, but I do not know. That's just an

4 assumption.

5 Q. Do you know what the situation was before the war, which

6 group was the most numerous?

7 A. No, no.

8 Q. Thank you, Mr Gschwendt. Thank you, your Honours.

9 JUDGE KARIBI WHYTE: Thank you very much. Mr Ackerman,

10 any cross-examination?

11 MR. ACKERMAN: We have no questions, your Honour.

12 JUDGE KARIBI WHYTE: Any re-examination?

13 MR. TURONE: Yes, your Honour, just a very few questions for

14 Mr Gschwendt.

15 Re-examination by Mr Turone

16 MR. TURONE: Mr Gschwendt, I would like to ask you if in

17 Austrian law is there any provision which is similar to

18 a specific Rule of this Tribunal, and I'm going to read

19 a small part of this Rule. It says that -- Rule 10 1

20 says that:

21 "In determining the sentence, the Trial Chamber

22 shall take into account of course the statute as well as

23 such factors as, first, aggravating circumstances,

24 second", and this is the point, "any mitigating

25 circumstances, including the substantial cooperation

Page 3519

1 with the Prosecutor by the convicted person before or

2 after conviction".

3 I want to know is there any similar provision in

4 Austrian law as to considering mitigating circumstances

5 like that in determining the sentence.

6 A. There are such legal provisions in the criminal code.

7 There's the grounds for aggravation, the aggravating

8 circumstances, as it were, and then the grounds for

9 mitigation as well that are indicated, and the court

10 applies those in sentencing.

11 Q. Thank you. Now, I would like Mr Gschwendt to be

12 provided with the original, for his convenience, of this

13 arrest warrant in German concerning Zdravko Mucic in

14 order to have some -- could you please provide him? It

15 is one of the attachments to the bunch of papers that

16 Mr Moran gave yesterday to the witness. The attachment

17 in the bunch of papers was only in English and now I

18 will provide the witness with the original in German for

19 his convenience actually. (Handed to witness).

20 So, would you please, Mr Gschwendt, tell the court

21 what is this document?

22 A. This document is a warrant of arrest and it was issued

23 by judge Dr Peter Seda on 14th March 1996 and this

24 warrant indicates that Zdravko Mucic is to be arrested

25 so that he might be extradited to the Republic of

Page 3520

1 Bosnia-Herzegovina, the Republic of Yugoslavia, and

2 there's also an indication of a suspicion concerning

3 Mr Mucic based on him being the Commander of the

4 Celebici prisoner camp from May 1992-November 1992 to

5 have killed members of the Serbian ethnic group or to

6 have contributed to their being killed, and it says

7 "based on investigations by the Serb judicial

8 authorities and the investigatory organs of the United

9 Nations".

10 Q. Do you see signatures appearing at the bottom of this?

11 Can you say which appears at the bottom?

12 A. The first signature there is by the judge, the

13 investigating magistrate, and the second one, that's at

14 the very bottom, on 18th March 1996 and the date is

15 there, this warrant of arrest was signed by Zdravko

16 Mucic, and the date was added.

17 Q. Mr Gschwendt, was a copy of this warrant of arrest

18 provided to Mr Mucic and translated to him?

19 A. (Not translated).

20 Q. Thank you. I think it would be proper to enter into

21 evidence both this German original document and also the

22 information sheet which was shown yesterday to the

23 witness, both in German language.

24 JUDGE JAN: Mr Turone, I just want to find out. The

25 custody record was to be --

Page 3521

1 THE INTERPRETER: Microphone, please, your Honour.

2 THE INTERPRETER: The last answer by the witness

3 was "yes".

4 JUDGE JAN: Does it say, the custody record, he should be

5 handed over to the Republic of Bosnia-Herzegovina or to

6 the Tribunal? I am just confused.

7 MR. TURONE: This is something which probably comes out with

8 the next witness in a more clear way, but if you want me

9 to ask this witness --

10 JUDGE JAN: If it comes out of the mouth of the next

11 witness, that is sufficient for me.

12 MR. TURONE: Anyway we can say -- Mr Gschwendt, do you mean

13 there was a request for extradition of Mr Mucic coming

14 not only from this Tribunal but also from

15 Bosnia-Herzegovina, I mean from the former Yugoslavia?

16 JUDGE JAN: That's not the question I asked you. I just

17 wanted a little clarification, because the wording of

18 the warrant as you read shows that the custody is to be

19 handed over to the Republic of Bosnia-Herzegovina.

20 I thought it was to be handed over to the Tribunal.

21 It's not a question to be addressed to the witness.

22 I'm just talking about the wording of the warrant

23 prepared by Dr Seda, not by him.

24 MR. TURONE: All right. So with the tendering of these two

25 German language originals, the information sheet and the

Page 3522

1 warrant of arrest, my re-examination is finished, your

2 Honour. Thank you.

3 JUDGE KARIBI WHYTE: Thank you very much.

4 MR. ACKERMAN: Your Honours, I rise, I guess, with a

5 comment. I couldn't help but notice that during Ms

6 Residovic's cross-examination of this witness this

7 morning his answers were almost uniformly: "I'm not an

8 expert on Austrian law. You'll have to ask a judge or

9 a lawyer about that", which differs markedly from the

10 answers he was giving yesterday. Then the very next

11 thing that happened was when Mr Turone got up and asked

12 him a question about Austrian law regarding the

13 punishment under Austrian law, he all of a sudden was an

14 expert on it again and gave a very detailed answer about

15 what Austrian law is in that regard. If he is going to

16 deny knowledge when we are doing cross but have that

17 knowledge when the Prosecution is doing direct, there's

18 something that strikes me as unfair about that. It

19 would seem to me that perhaps, and I do not speak for

20 Miss Residovic, perhaps either the answer he gave to

21 Mr Turone should be struck on that basis or that Ms

22 Residovic should be permitted to ask her questions

23 again, now that he has decided that he does know about

24 Austrian law.

25 MR. TURONE: May I respond to this, your Honour?

Page 3523

1 JUDGE KARIBI WHYTE: Yes, you can.

2 MR. TURONE: Actually we could -- all of us could appreciate

3 that Mr Gschwendt gave in cross-examination a number, a

4 large number of answers also on legal questions. Only

5 in a number of extremely particular questions he

6 replied: "I'm no lawyer, so on this field I don't feel

7 to be in a position to give a real answer", but a number

8 of legal questions, a number of questions on Austrian

9 law were answered by Mr Gschwendt in the scope of his

10 knowledge of Austrian law, because Mr Gschwendt did not

11 deny at all to know, to have anyway a legal background

12 of penal and criminal procedural law of his country.

13 Simply he said that, not being a lawyer, he's not in a

14 position to answer to questions which are too specific

15 and too connected to the professionalism of a real

16 lawyer. The question about the existence of mitigating

17 and aggravating circumstances in substantial criminal

18 law is something which absolutely is encompassed in the

19 general knowledge of any policeman in any country of the

20 world, and particularly the knowledge of mitigating

21 circumstances and the knowledge of mitigating

22 circumstances which -- the origin of which might be more

23 or less important cooperation of the suspect and so

24 on. So I would say the mitigating circumstances in

25 substantial criminal law of a country are well-known to

Page 3524

1 every policeman of that country. On the other hand, a

2 question concerning legal technicalities might not be

3 encompassed in the knowledge of police officers. This

4 is what I feel in the duty to clarify. I think it was

5 a matter of logic and experience of everyone sitting in

6 this courtroom. Thank you, your Honour.

7 MS. RESIDOVIC (in interpretation): Your Honours, with every

8 respect for Mr Turone, I did not understand that

9 Mr Turone had the function of a witness or the counsel

10 of the witness who spoke at length here in this

11 courtroom. I thank the witness for answering many

12 questions showing considerable legal knowledge of the

13 criminal procedure of Austria. I'm only concerned that

14 this morning Mr Gschwendt suddenly forgot his legal

15 knowledge and I fear that this may be linked to the

16 widespread objections rejected by court yesterday, the

17 objections of Mr Turone. However, I do indeed hope

18 that the witness spoke the truth both yesterday and

19 today. Thank you.

20 MR. MORAN: Your Honour, on a little bit different thing, on

21 those exhibits, I don't have any objection to their

22 admission, so long as they are accompanied with

23 translations into one of the two official languages of

24 the Tribunal, preferably for me English.

25 MR. TURONE: May I explain that the translations into

Page 3525

1 English are already attached to the bunch of papers

2 Mr Moran provided yesterday the witness with.

3 MR. MORAN: But, your Honour, they're not evidence.

4 They're just part of the papers of the court.

5 JUDGE KARIBI WHYTE: Thank you very much. May I refer to

6 --

7 MR. TURONE: We agree we will --

8 JUDGE KARIBI WHYTE: Will you please sit down and let me

9 make a point?

10 MR. TURONE: Excuse me.

11 JUDGE KARIBI WHYTE: I refer to Mr Ackerman's

12 observation. It is a little difficult for the Trial

13 Chamber to determine at what point someone is telling

14 the truth or pretending not to know or has forgotten

15 what he knew when, in fact, he could know. That's a

16 thing you take as a whole, not only in respect of what

17 I think. So it is difficult in respect of that. Now

18 I did not bother to stop Mr Turone when he put the

19 question on re-examination, because it was obviously not

20 relevant to the cross-examination, which merely pointed

21 out the effect on questioning, on what was told the

22 accused person on questioning. Now, the knowledge

23 which was brought was something on mitigation of

24 sentence, sentencing procedure, which is quite

25 different. I just ignored it, because I knew it had

Page 3526

1 nothing to do with the cross-examination. So sometimes

2 you might ignore these things when, in fact, it makes no

3 difference to your case whichever way one took it.

4 Now, Mr Gschwendt has given purely factual

5 evidence and where he's unable as a police officer to

6 come to conclusions on law, he stated that, and

7 I wouldn't for that regard his testimony on those areas

8 where he said he couldn't give legal opinion as

9 suspect. It's possible he couldn't, or even if he

10 knew, he wouldn't. Well, it might be an aspect of

11 non-cooperation, but I don't think that's a reason why

12 one should impose any sanctions for that. Thank you

13 very much for your observation. Thank you very much,

14 Mr Gschwendt. I think you are finished. I think

15 that's all we have for you.

16 A. Thank you.

17 (Witness withdrew)

18 (Interpreter withdrew).

19 JUDGE JAN: I was just wondering: this lady is not going

20 to help the next witness in German.

21 MR. TURONE: Yes, the next witness is German, too. The next

22 witness for the Prosecution is Mr Thomas Moerbauer.

23 JUDGE KARIBI WHYTE: We are trying to find out whether the

24 arrangement for assistance is the same.

25 MR. TURONE: I guess so.

Page 3527

1 JUDGE JAN: Call her back.

2 JUDGE KARIBI WHYTE: Please swear the witness.

3 Mr. Thomas Moerbauer (sworn)

4 Examined by Mr. Turone.

5 MR. TURONE: May I proceed, your Honour?

6 JUDGE KARIBI WHYTE: Yes, you can.

7 MR. TURONE: Sir, can you please state your full name?

8 A. My name is Thomas Moerbauer.

9 Q. Which is your date of birth?

10 A. 29th August 1966.

11 Q. Which is your citizenship?

12 A. I'm an Austrian citizen.

13 Q. What is your profession?

14 A. I'm a police officer.

15 Q. Can you say exactly which position you have inside the

16 Austrian police?

17 A. I am a District Inspector and I work, as said, in the

18 Austrian police in that capacity.

19 Q. Can you say in which unit of the Austrian --

20 JUDGE KARIBI WHYTE: Hold on. Is the witness not

21 interested in interpretation. He has not put on his

22 headphones.

23 THE INTERPRETER: Your Honour, if the interpreter might just

24 briefly explain that the witness does not understand

25 English and therefore the interpreter is translating

Page 3528

1 into German for Mr. Moerbauer.

2 JUDGE KARIBI WHYTE: Thank you very much.

3 JUDGE JAN: He doesn't have to put them on if he doesn't

4 understand English. He doesn't understand any other

5 languages here.

6 MR. TURONE: Mr. Moerbauer, can you say in which unit of the

7 Austrian police you work?

8 A. Division 1 in the Vienna Police Department. That's for

9 State protection. It's protection of State matters and

10 individuals.

11 Q. Did you have the same position in March 1996?

12 A. Yes, I did. I had that same position.

13 Q. In which year did you get such position?

14 A. 1992, October.

15 Q. Can you please describe briefly your professional

16 curriculum starting from the type of school you attended

17 before entering police?

18 A. Yes. I went to basic school until I was 15. In 1981,

19 September, I started with the police school in Vienna as

20 a police cadet. In 1984 I was a fully-fledged police

21 officer and I served for four years in Vienna. Then

22 I was with the police in Schiket (sic). Then in

23 1991/1992, I took a detective course. In October of

24 1992 I joined Division 1.

25 Q. In which year did you become District Inspector?

Page 3529

1 A. 1992.

2 Q. Now, Mr. Moerbauer, coming back to your present position,

3 where are located the premises of the 1st Division where

4 you currently work?

5 A. In the 1st District Schottenring 7-9 is the address.

6 Q. Is that in the centre of Vienna?

7 A. It is in the centre of Vienna.

8 Q. Is that the central headquarters of the Austrian Federal

9 Police in Vienna?

10 A. Yes, it is. It's the headquarters.

11 Q. In your official capacity of police officer of the First

12 Division do you usually carry on criminal investigations

13 on particular crimes?

14 A. Yes.

15 Q. Which kind of crimes?

16 A. Crimes having to do with State security, normally

17 threats to neutrality, so they're quite specific.

18 Q. Before this present occasion did you have other

19 occasions to testify in court as a result of your

20 investigative work?

21 A. Yes.

22 Q. Now, Mr. Moerbauer, are you aware of a request of

23 cooperation signed by the Prosecutor of this Tribunal

24 and directed to the Austrian authorities for the arrest

25 of Mr. Zdravko Mucic and Mr. Zejnil Delalic?

Page 3530

1 A. Yes, I am aware of that.

2 Q. Did that request also concern the fulfillment of

3 searches and seizures of material related to the same

4 proceedings?

5 A. Yes.

6 Q. Did you personally take part to the police operations

7 concerning all this?

8 A. Yes.

9 Q. Did these police operations take place in cooperation

10 with Interpol?

11 A. Yes.

12 Q. Now I know you have your notes with you, so I might ask

13 the Trial Chamber to allow the witness to consult his

14 notes and files from now on in order to refresh your

15 memory. So, Mr. Moerbauer --

16 JUDGE JAN: Just a minute. These notes were prepared

17 contemporaneously or later?

18 MR. TURONE: Exactly as the other witness, being a police

19 officer, I think he might be allowed to consult his own

20 notes.

21 JUDGE JAN: I'm asking when were these notes prepared from

22 which he wants to refresh his memory?

23 MR. TURONE: Where did you prepare your notes, Mr. --

24 JUDGE JAN: When?

25 MR. TURONE: When did you prepare your notes, Mr. Moerbauer?

Page 3531

1 A. The notes are basically copies of the reports and

2 there's three pages that I have a written up to set out

3 the case chronologically. About two or three weeks ago

4 I did that, set it out chronologically on the basis of

5 the police file.

6 Q. So, Mr. Moerbauer, was there a time when you met with

7 some Interpol officers in order to prepare the police

8 operations we are talking about?

9 A. That was on 12th March 1996. Magistrate Gross and

10 Administrative Officer Furst from Interpol came into our

11 office and that's when we had that discussion.

12 Q. When were you informed in some detail about the charges

13 raised by the Prosecution of this Tribunal against

14 Mr. Delalic and Mr. Mucic?

15 A. The first information came to me on 6th March through my

16 colleague Panzer, and I happened to be on holiday. He

17 gave me a phone call and said there had been this

18 request relating to Zdravko Mucic, and he knew that that

19 name was one I was familiar with, that I might know

20 something more about him.

21 Q. Mr. Moerbauer, was there any extradition request coming

22 from a given State concerning Mr. Mucic?

23 A. There were requests from Yugoslavia to the Federal

24 Ministry of Justice and via the Department 210 that was

25 passed on to us.

Page 3532

1 Q. When did the request of Yugoslavia arrive to your

2 knowledge?

3 A. The request came in to us on 6th March, into the Police

4 Department in Vienna, that is to say my department.

5 Q. When did the request coming from the Prosecutor of this

6 Tribunal come to your knowledge?

7 A. A bit later. Let me have a look here at my

8 documents. On 13th March 1996.

9 Q. So I think we had some misunderstanding in your previous

10 answer. I ask again: when were you informed in some

11 details of the charges raised by the Prosecutor of this

12 Tribunal against Mr. Delalic and Mr. Mucic?

13 A. On 13th March 1996 from the Tribunal.

14 Q. Did you have an occasion to talk with people of Interpol

15 about that?

16 A. Yes. On 12th March when discussing Mucic I mentioned

17 that Mucic worked at a company that belonged apparently

18 to the Delalic family and somebody from Interpol said

19 that there were investigations going on about Delalic,

20 but that was in Germany, and that was on account of a

21 request from the Tribunal.

22 Q. Before this which is happening on March 1996, were the

23 names of Mr. Delalic and Mr. Mucic already known to you?

24 A. Yes, they were familiar to me.

25 Q. Can you explain for which reasons?

Page 3533

1 A. In 1992 from a refugee camp in Vienna there were some

2 passports that were stolen, and we found them in a cafe

3 which belonged to Sefic Delalic, who in the meantime had

4 passed away.

5 MR. TURONE: Please speak slower when you give these

6 accounts but there is some --

7 MR. GREAVES: Your Honour, I object to this evidence on the

8 grounds that it is (a) neither relevant, and (b) its

9 prejudicial effect frankly outweighs any relevance it

10 may have. I suspect that the evidence that my learned

11 friend is seeking to adduce is going to be evidence

12 concerning investigations by police officers. It is a

13 general principle of law that evidence concerning any

14 previous wrong doing by any person is not admissible as

15 evidence, and it is usually treated as evidence which is

16 wholly prejudicial. In my respectful submission, this

17 is just such evidence, and I would respectfully invite

18 your Honours not to permit these questions.

19 MR. TURONE: I think the relevancy -- the possibility that

20 the two suspects were already known to this witness

21 might be anyway relevant.

22 JUDGE JAN: You can re-word the question. He came to know

23 the names in the course of investigation in another

24 case, not about what --

25 JUDGE KARIBI WHYTE: Not the details of what happened.

Page 3534

1 You don't start with wrongdoing.

2 MR. TURONE: The details of the previous investigation are

3 not relevant. So, coming back to this case and the

4 case concerning this Tribunal, when did the Austrian

5 judge issue the arrest warrants and the search warrants

6 concerning Delalic and Mucic?

7 A. The warrant of arrest was from 14th March. That's when

8 we received them from Department 210. They passed them

9 on to us.

10 Q. Did that concern both arrest warrant and search

11 warrants, the 14th March?

12 A. There were two arrest warrants and four search warrants.

13 Q. Do you know from where did Judge Seda receive the

14 relevant information prior to issuing the arrest and

15 search warrants?

16 MR. GREAVES: Your Honour, he can't answer questions about

17 what someone else knew and where someone else got

18 information from.

19 MR. TURONE: Well, the source for the judge might have been

20 in whole or in part the witness himself, or he might

21 know for official reasons how much the judge received

22 the relevant informations. So may I proceed to this

23 question, your Honour?

24 JUDGE JAN: Ask him did he supply the information to the

25 judge. Why go round about that way? Did he place the

Page 3535

1 papers before the judge? Ask him straight.

2 MR. TURONE: Did you directly give Judge Seda the relevant

3 information prior to issuing the arrest and search

4 warrants?

5 A. No. That is not how it's commonly done. It always

6 goes through the legal department or by some other

7 department. So it doesn't go through the Police

8 Department proper.

9 Q. Thank you. Mr. Moerbauer, how many places were supposed

10 to be searched according to the warrants?

11 A. Four localities were to be searched. In fact, there

12 were five locations because there was Koppstrasse 14 and

13 Koppstrasse 16 that were referred to.

14 Q. In particular can you say which places were supposed to

15 be searched?

16 A. The company offices primarily, which were connected with

17 the two individuals, that is to say Mucic and Delalic.

18 Q. Yes. Can you please go into more details and say

19 exactly all the addresses and the premises where

20 searches were supposed to take place?

21 A. Well, according to the first search warrant it was in

22 the 17th District, Taubergasse 15, the club premises,

23 the BiH club rooms.

24 Q. Speak slowly?

25 A. So 17th district, Taubergasse 15. The BiH club

Page 3536

1 facilities, and in that building there's also the

2 apartment of Delalic and the company premises of the MAS

3 company, that is to say they have their offices there.

4 Now the second address was Vienna 16, Koppstrasse 14.

5 That is where the MAS company had its official

6 headquarters. Third search was to be in 1160 Vienna,

7 Koppstrasse 14 and 16. That was the headquarters of

8 the INDA-BAU company. In 1160 Hasnerstrasse 32, that

9 is the official headquarters of the Rimebau company.

10 In Hasnerstrasse 32, there is also the apartment of the

11 brother, Djemal Delalic.

12 Q. Mr. Moerbauer, how was the INDA-BAU firm related to

13 either Mucic or Delalic or both?

14 A. The INDA-BAU company was run by relatives of Zejnil

15 Delalic. Mucic worked at INDA-BAU as a bricklayer but

16 this was some time ago. His last employer was the MAS

17 company.

18 Q. Can you give us some specific information on the

19 ownership, controller directorship of this INDA-BAU

20 firm?

21 MR. O'SULLIVAN: I have to object, your Honours, as to

22 relevancy of these questions.

23 MR. TURONE: The relevancy is due to the fact that we have a

24 search having taken place in the premises of INDA-BAU

25 firm and seizure of documents having taken place in the

Page 3537

1 INDA-BAU firm, and the connection between Delalic and

2 the INDA-BAU firm is relevant, and so any question about

3 the directorship and so on of the firm might be

4 relevant. May the witness be allowed to answer this

5 question?

6 JUDGE KARIBI WHYTE: Yes, you can.

7 A. The companies in question had been checked previously

8 and the connections were ascertained with Mucic and

9 Delalic. These findings on 12th March were -- that

10 information was passed on to the people from Department

11 210 and they were provided with copies from our file and

12 those documents were passed on to Dr Seda by Department

13 210 and on the basis of that information Dr Seda issued

14 the search warrants, but those addresses weren't 100 per

15 cent up-to-date, and that's -- for instance, the

16 INDA-BAU headquarters was in Koppstrasse 14 on the

17 ground floor, and with respect to INDA-BAU, there was a

18 sign, a note, a sign there saying that Koppstrasse 14

19 was also where the MAS company was headquartered. At

20 that time Mucic was also the manager of the MAS company,

21 or shall we say he was employed with the MAS company,

22 and all of the addresses were given a serious look and

23 it was decided there should be a change made, and there

24 again the information was passed on via Department 210

25 to Dr Seda, so that the search warrants could be

Page 3538

1 corrected. The following addresses were then

2 suggested. This is in the 17th District, Taubergasse

3 15, Door 10, and that is the apartment of Mucic.

4 Taubergasse 15, Door 14, that's the former apartment of

5 Zejnil Delalic. He'd lived there until November

6 1995. That's where he was living, and Taubergasse 15

7 there, that building was one that was leased to MAS, and

8 MAS was also the landlord, the provider of housing, as

9 it were, for the various apartments and that could be

10 determined on the basis of the registration

11 information. Now a further search warrant was

12 requested for Taubergasse 28. That was where the MAS

13 company had its workshops. In the apartment of Djemal

14 Delalic, in the 16th district, Hasnerstrasse 32, Door

15 27-29, and it could be assumed that Zejnil Delalic may

16 well be found there. In other words, there wasn't any

17 official registration on the part of Zejnil Delalic in

18 Vienna, official registration as living there.

19 Q. All right. Can you have some specific information on

20 the directorship, ownership, control of the MAS firm?

21 A. Well, as to who was controlling the companies, now that

22 information led us to believe that Zejnil Delalic was

23 the one who was really running things. Now officially

24 friends and relatives of Zejnil Delalic were running the

25 companies.

Page 3539

1 JUDGE KARIBI WHYTE: I think we can break here.

2 JUDGE JAN: This information is hearsay. What is the

3 source of this information?

4 MR. TURONE: What is the source of this information,

5 Mr. Moerbauer?

6 A. Investigations went on for a year concerning these

7 companies, and the club, for instance, was also

8 contacted, and Djemal Delalic was also doing business

9 operations in Vienna, and Zenjil Delalic on the basis of

10 information from informers and other people who had

11 contacts with his companies --

12 JUDGE JAN: Then you have to produce witnesses who are

13 direct to his knowledge. He is merely drawing

14 inferences from hearsay evidence. How is that relevant

15 or of great value?

16 JUDGE KARIBI WHYTE: I think let's break here. We'll come

17 back at 11.30.

18 (11.10 am)

19 (Short break)

20 (11.35am)

21 (Witness re-entered court)

22 (Interpreter re-entered court)

23 JUDGE KARIBI WHYTE: Kindly remind him he is still on his

24 oath.

25 THE REGISTRAR: You are --

Page 3540

1 A. Yes.

2 MR. TURONE: May I proceed, your Honour? I got a

3 translation into French.


5 MR. TURONE: We need some English translation on channel

6 4. Is the English translation now?

7 THE INTERPRETER: Can you hear me? This is the English

8 channel.

9 MR. TURONE: All right, Mr. Moerbauer. Were the two

10 apartments of Delalic and Mucic in the same building in

11 Taubergasse?

12 A. Yes.

13 Q. Are Koppstrasse, where the INDA-BAU was located, and

14 Taubergasse close to each other?

15 A. About 300-500 metres apart as the crow flies.

16 Q. Are they located in the centre of Vienna?

17 A. No. It's in outer district, beyond the Belt as it's

18 called. The Belt goes round the inner area, and it's

19 beyond the Belt.

20 Q. When and where was Mr. Mucic arrested?

21 A. Mucic was arrested on 18th March, 2.15 in the afternoon,

22 in the street Nattagasse. That's the street that's

23 parallel to Taubergasse.

24 Q. As far as you know, when and where was Mr. Delalic

25 arrested?

Page 3541

1 A. As far as I know he was arrested at roughly the same

2 time in Munich.

3 Q. Can you please tell the court what happened and what did

4 you do between March 14th and March 18th as far as the

5 police observations which led to this joint arrest

6 operation?

7 A. On 14th March an observation unit started watching

8 Taubergasse 15. We took it that Mucic would be

9 appearing there and that Delalic might be appearing

10 there as well.

11 Q. Speak slowly, please, Mr. Moerbauer?

12 A. And in the evening hours Panzer and myself went to

13 Mucic's apartment and said that we were looking for

14 someone -- well, not a person -- we were carrying out a

15 registration. We came up with the name of Manminic

16 (sic), but said that was just a pretence, because we

17 wanted to see whether Mucic was actually on the

18 premises. In the apartment we chanced upon Mucic and

19 his daughter and that way we could ascertain that Mucic

20 was actually residing at his official place of

21 residence. We did not encounter Delalic in the

22 apartment on that occasion.

23 Then as from 16th March the observations were

24 carried out on a more reinforced basis, because should

25 Mucic and Delalic appear together our plans were to

Page 3542

1 arrest them together on that occasion. Then on 16th

2 March, 7 o'clock in the morning at Taubergasse 30 there

3 was a vehicle with Munich plates that was spotted there,

4 and we checked out the vehicle and we found that it had

5 been registered with the Insunt company. So we thought

6 that maybe Zejnil Delalic --

7 MR. MORAN: The witness appears to be reeding from some kind

8 of a script. If he is using his notes, that is one

9 thing, but if he is reading from a script we would ask

10 that it be translated into English. It might save us

11 all some trouble?

12 A. Fine. 7 o'clock we spotted this vehicle and there was

13 a suspicion that this was the vehicle of Zejnil

14 Delalic. Now in the course of the afternoon at 2.15 in

15 the afternoon Delalic left the house through the

16 entrance at Taubergasse 15 and he came through the exit

17 of the club rooms, went to the vehicle with the German

18 licence plates and drove to Koppstrasse, Kopp Street.

19 There he went into the premises of the INDA-BAU company,

20 came back into the street accompanied with a 30 year old

21 woman approximately with dark hair and put files into

22 his vehicle. So he was in the company premises for

23 about half an hour or so, and then alone he drove

24 towards the border crossing at Walzberg and he left

25 Austria at about 6 o'clock that afternoon. Now, we did

Page 3543

1 not proceed to an arrest. We had agreed with the

2 German colleagues that we would only take action if we

3 were sure that both individuals -- shall we say, rather,

4 if we chanced upon both individuals together, which was

5 not the case.

6 Now Mucic, shortly after Delalic left, started

7 going to Koppstrasse. Mucic at all events came out of

8 the apartment, drove off, but then we lost track of him.

9 Q. I have to slow you down again, please.

10 A. So as regards the observation of Mucic, that could not

11 be pursued. So that's why we decided we would not

12 arrest Delalic, and the German authorities were notified

13 and, as we had agreed, the German authorities would be

14 taking over observation then in Germany.

15 Q. When you went and met Mr. Mucic in his apartment on March

16 14th, in what language did you talk to him?

17 A. We spoke in German.

18 Q. Did he answer in German?

19 A. Yes.

20 Q. Again concerning the observation you personally did

21 between March 14th and March 18th, was there a time when

22 you had a chance to observe again Mr. Mucic in any

23 situation?

24 A. Yes. Mucic was observed -- well, in between -- I don't

25 know just when that was, whether it was on 16th or

Page 3544

1 17th. He was driving a vehicle of the INDA company.

2 It was registered with INDA-BAU. He drove to the

3 belt. He was spotted there and on 18th in the course

4 of the morning he was preparing a vehicle, not the

5 INDA-BAU vehicle but a different vehicle.

6 Q. Mr. Moerbauer, did you personally take part in the arrest

7 of Mr. Mucic on March 18th?

8 A. Yes.

9 Q. Can you give us the names of your colleagues who joined

10 you in this operation?

11 A. There were officers Panzer, Borlak and Bycek.

12 Q. Who for you was the head of the patrol?

13 A. Panzer was in charge of the patrol.

14 Q. Can you tell the court how did the arrest take place?

15 A. Mucic was observed while he was preparing this

16 vehicle. It looked like a good time to take action,

17 because Mucic was there on his own. Now, we talked to

18 Gschwendt at the office to say this would be a good time

19 to go ahead. We got the go ahead and myself and Panzer

20 came out of our vehicle, went up to Mucic at his vehicle

21 and arrested him. We passed on the information that he

22 was arrested. He had his hands handcuffed behind his

23 back and after that we went to Mucic's apartment, and

24 when Mucic was arrested, he was told why he was

25 arrested, that it was on the basis of a court arrest

Page 3545

1 warrant, as there was a suspicion of crimes in the

2 Celebici camp.

3 Q. Was there any ICTY investigator present at the arrest?

4 A. No, there wasn't.

5 Q. Did you immediately inform Mr. Gschwendt about the arrest

6 of Mucic?

7 A. I did not report to him, but immediately after the

8 arrest he was informed of the arrest.

9 Q. What happened right after the arrest of Mr. Mucic?

10 A. We went into the apartment, Taubergasse 15, Door 10,

11 together with Mucic and his daughter was in the

12 apartment. We opened the handcuffs from behind Mucic's

13 back and closed them again with his hands in front

14 again. We sat down at the table. Mucic was sitting

15 there. Panzer sat there. Once again he was informed

16 as to the grounds of the arrest, what was going on, and

17 he was informed that there would be searches on the

18 premises, that there were search warrants and then the

19 search began.

20 Q. At what time did the search in Mucic's apartment start?

21 A. At about fifteen minutes after the arrest.

22 Q. Was this search done by you together with the same three

23 colleagues who were with you at the arrest of Mucic?

24 A. Yes.

25 Q. Did you give Mucic a copy of the arrest warrant?

Page 3546

1 A. No.

2 Q. Did you have the arrest warrant read to him?

3 A. No.

4 Q. What kind of an information you gave to Mr. Mucic about

5 his arrest?

6 A. That he was allegedly camp commander in Celebici.

7 Crimes had been committed there, and in that connection

8 the Vienna District Criminal Court had issued an arrest

9 warrant. It was Dr Seda who had issued the warrant.

10 Q. Did you give Mucic a copy of the search warrant?

11 A. I didn't give him a copy, no.

12 Q. Was the search warrant explained to him?

13 A. The search warrant was explained to him, yes.

14 Q. In which language?

15 A. In German and Sanda Mucic, his daughter, also translated

16 it to him.

17 Q. Did Sanda Mucic speak fluent German?

18 A. Yes.

19 Q. Did you give any further information or explanation to

20 Mr. Mucic in this very moment?

21 A. No. We said that there was a possibility that he might

22 be handed over to The Hague and he was also given the

23 possibility that after the search he could take along

24 some luggage, as it were, some personal items, because

25 he may be in custody for some time.

Page 3547

1 Q. How long did the search in Mucic's apartment last?

2 A. About 45 minutes.

3 Q. Did you seize any material?

4 A. Yes. I seized the videotapes.

5 Q. But was there any other material seized in Mucic's

6 apartment?

7 A. In the apartment there were several diaries, I believe,

8 that were seized. Then various identification

9 papers. There were Yugoslavian passports there,

10 identity cards. There were handcuffs there too.

11 Q. How many videotapes did you seize there?

12 A. Four videotapes in Mucic's apartment.

13 Q. In which room exactly did you seize these four

14 videotapes?

15 A. The videotapes were in the living room and they were in

16 a cabinet, and there were other videotapes there, but

17 they were commercial videotapes.

18 Q. Well, at the end of the search where did you put the

19 seized material? I mean, some bags, some box?

20 A. We put them in plastic bags or boxes. I don't remember

21 quite what they were. I think there were both plastic

22 bags and boxes used.

23 Q. Did you prepare a search record, a Niederschrift, for

24 this operation?

25 A. We began with the record, the Niederschrift, in Mucic's

Page 3548

1 apartment, but the seized objects, as regards them, they

2 were indicated later on in the office.

3 Q. Did Mr. Mucic sign this search record?

4 A. As far as I can recall, yes.

5 Q. Do you remember when did he sign this search record?

6 A. When? No, I don't remember, but it must have been in

7 the office.

8 Q. You mean in police headquarters?

9 A. Yes.

10 Q. Do you mean the same day?

11 A. On the same day, yes.

12 Q. Was the record read out to Mr. Mucic by an interpreter?

13 A. Yes.

14 Q. Did that occur later on in the police headquarters?

15 A. The interpreter was in the office, shall we say, at the

16 police headquarters as of 4 o'clock and began with the

17 formalities that are required subsequent to an arrest.

18 Q. All right. We'll come to that later. On which floor

19 was -- on which floor in the building of Taubergasse was

20 the apartment of Mucic located?

21 A. Mucic's apartment, the first floor, that is to say one

22 flight up. There's sort of a mezzanine, but it is

23 basically the first floor, one flight up.

24 Q. What about the apartment of Delalic? Was that on the

25 same floor of the building?

Page 3549

1 A. It's one flight of stairs up in the same building.

2 Q. Did you personally take part in the search of Delalic's

3 apartment as well?

4 A. I was not involved in the search, because -- well,

5 rather, a colleague came down into Mucic's apartment and

6 he told me that there were a lot of documents that had

7 been seized in that apartment, and I went to, quote,

8 Delalic's apartment upstairs, and there was a bag on the

9 desk and the videotapes were already in there and there

10 was a pile of documents, and the colleague said these

11 were matters relating to Yugoslavia. I said: "Yes,

12 we'll take those along as well." Then I went back down

13 to Mucic's apartment.

14 Q. Can you give us the names of your colleagues who carried

15 on the search in Delalic's apartment?

16 A. Unger and Winkelmann.

17 Q. Did they have the keys of Delalic's apartment?

18 A. Well, as to how they got the keys, I can't say. I came

19 later. I went back up to the apartment, and when we

20 locked the door, they gave me the keys, the seized

21 objects and the record, and Harija (sic) Delalic, that

22 is to say the sister-in-law of Zejnil Delalic, was to

23 receive the keys; that is, I was to give them to her.

24 Q. You said Harija?

25 A. Harija.

Page 3550

1 Q. Where does this person live?

2 A. She was in the apartment that was next to Mucic's

3 apartment.

4 Q. Did you say approximately when did the search start in

5 the apartment of Mr. Delalic?

6 A. The searches all took place roughly at the same time.

7 There could have been a difference of some ten, fifteen

8 minutes.

9 Q. Who was present as a witness on Delalic's behalf during

10 the search in that apartment?

11 JUDGE JAN: But he was not present when the search took

12 place. He was not present is what he said. He came

13 later on.

14 MR. TURONE: Then I'll reword my answer (sic). Did Sanda

15 Mucic stay always in Mucic's apartment during the time

16 you were there?

17 A. Well, when I was upstairs briefly, I only saw Harija

18 Delalic the first time I saw the objects. When the

19 apartment was locked Sanda Mucic was no longer there.

20 Q. During this time when you went back and forth from the

21 apartment of Delalic to the apartment of Mucic, did you

22 personally see whether a search record was immediately

23 done concerning the search in Delalic's apartment?

24 A. No. When it was locked, the seized objects and the

25 record, along with the keys, were handed to me.

Page 3551

1 Q. By whom was that record signed?

2 A. As far as I could make out, on the record there was the

3 two officers who had signed and Sanda Mucic.

4 Q. Did the colleagues who carried on the search in

5 Delalic's apartment join you after the search?

6 A. Yes.

7 Q. Where did they join you?

8 A. In the police headquarters, in our offices.

9 Q. Was the whole seized material carried there?

10 A. The seized material was brought there and the two

11 colleagues had gone ahead, because there is a report.

12 After a search you have to draw up a report about it.

13 Q. Did you personally see again in the police premises the

14 same days the material which was seized in Delalic's

15 apartment?

16 A. Yes, I did see it, and I took it along to headquarters

17 as well. I took it to the colleagues who wrote the

18 report, because I was waiting for their report of the

19 search.

20 Q. Was there any file containing paper documents among the

21 materials seized in Delalic's apartment?

22 A. Yes.

23 Q. How many folders? How many files?

24 A. As far as I can remember in Delalic's apartment there

25 was only one file.

Page 3552

1 Q. Where was all this material, I mean the Delalic's

2 apartment material, put? I mean, into bags or boxes?

3 JUDGE JAN: He has already said that.

4 MR. TURONE: That was about the other search.

5 JUDGE JAN: He was talking about Delalic's apartment. He

6 said when he went to the room of Delalic they were in a

7 plastic bag or a box?

8 A. That was Mucic, Mucic's apartment.

9 JUDGE JAN: I'm sorry. I misunderstood?

10 A. There was a large black sports bag and that's what the

11 objects were in, and we also took that sports bag and we

12 gave it as identification number D1.

13 MR. TURONE: Can you say at what time was the search

14 concluded in Delalic's apartment?

15 A. It was one of the last ones we finished with in that

16 building. Just exactly when, it must have been about

17 4.00 pm, at about 4.00 in the afternoon.

18 Q. Was any other search fulfilled in that same building of

19 Taubergasse 15?

20 A. Taubergasse 15 there was another search there in the

21 club premises, this is the BiH club. I was present,

22 Bycek and another officer was there as well. You could

23 find out who it was precisely in the records but no

24 objects were seized there.

25 Q. What happened when all the searches inside that building

Page 3553

1 were concluded?

2 A. Well, we went to police headquarters, Schottenring, with

3 Mucic, and we went up to the third floor, to Room 331.

4 Now, the interpreter was already present in that room

5 and we began filling out the various sheets, personal

6 data, custody report. There are a number of forms that

7 have to be filled out and I was busy gathering the

8 reports about the searches, because the colleagues were

9 in various rooms, so we have various copies that have to

10 be made, and I only filled out the personal data part of

11 the required report, shall we say.

12 Q. Approximately at what time did you arrive at the central

13 police headquarters?

14 A. Between 4.30 and 5 o'clock in the afternoon.

15 Q. You said you went to Room 331. Was the seized material

16 brought to that same room?

17 A. Yes, it was brought to that room.

18 Q. What was Room 331 normally used for?

19 A. Those are our offices. Panzer, Bycek and myself have

20 our offices there.

21 Q. Who was inside Room 331 when you arrived?

22 A. The interpreter was there and first Lieutenant

23 Gschwendt. That was his rank at the time.

24 Q. Can you repeat the name of the interpreter. I do not

25 remember if you said that?

Page 3554

1 A. Liliana Supput is the interpreter.

2 Q. Right after arriving there did you say anything to

3 Mr. Mucic at this point with the help of the interpreter?

4 A. No.

5 Q. You were talking about the formalities and documents.

6 Was there documents concerning personally Mucic which

7 were dealt with right after arriving to the ...

8 A. Now I'm not sure I understand the question.

9 Q. I mean, my question is: right after arriving at the

10 police headquarters with Mucic, right after arrival in

11 that room where Gschwendt and the interpreter was, was

12 something explained to Mucic with the help of the

13 interpreter?

14 A. Yes. In connection with the formalities and the custody

15 record there's also the information sheet for arrested

16 persons there, and I didn't start filling out that

17 custody report with Mucic. Somebody else did that.

18 But there's also the various items in there, the

19 notification of consular representation, consultation of

20 a lawyer, but I did not go through that myself.

21 Q. So somebody else did inform Mucic about his rights?

22 A. Yes, I got the custody report later. I was not there

23 when that was translated to him; at least, I wasn't

24 paying any attention to it and can't say anything about

25 it.

Page 3555

1 Q. Did you see whether Mr. Mucic signed any document right

2 after his arrival at the police headquarters?

3 A. No, I didn't see that.

4 Q. Did Mr. Mucic remain in Room 331 after that?

5 A. Yes. We took him up there, the colleagues who carried

6 out the arrest. Whether all four were there I can't

7 really say, but I was there.

8 Q. How long did Mr. Mucic remain in Room 331?

9 A. As far as I can remember, while I was there, he was

10 there the whole time. He may have been out for a

11 moment here or there. He was in the arrest cell for

12 discussion. I can't say whether he was in there the

13 whole time until the relevant document was drawn up, but

14 most of the time I would say he was in the office.

15 Q. Did he ever remain alone in Room 331?

16 A. He was never alone in the room.

17 Q. Mr. Moerbauer, who are the colleagues of yours who

18 carried on the search of the premises in the INDA-BAU?

19 A. Navarat, an officer in the division, and then there were

20 two officers from the 16th District police station,

21 Knauder and Klauser are the officers from that district.

22 Q. Did any of these police officers also come to Room 331

23 in that same afternoon of March 18th?

24 A. On the same afternoon First Lieutenant Navrat came into

25 the room and gave me the seized objects.

Page 3556

1 Q. Approximately at what time did he come?

2 A. That was the last officer to give me material, so it

3 must have been after 3 o'clock -- sorry -- rather after

4 5 o'clock.

5 Q. All right. Thank you. Can you say approximately

6 through the records you received and saw at what time

7 did the search start in the INDA-BAU premises?

8 A. The searches were to start at roughly the same time.

9 There were some delays, 15, 20 minutes, because the

10 arrest came about unexpectedly, rather it happened

11 earlier than planned, so that led to some delays. Then

12 as regards the search of Koppstrasse I can't say exactly

13 when that began, but that should be in the record.

14 Q. By the way, was any material seized in the INDA-BAU

15 premises?

16 A. Yes, material was seized at INDA-BAU.

17 Q. As far as you know, who was present as a witness on

18 behalf of the suspect during the search in the INDA-BAU

19 premises?

20 A. As far as I know, Elvir Rizvanovic was present and a

21 woman whose last name was Delalic -- Suana or something.

22 I'm not sure. The other person was Elvir Rizvanovic.

23 Q. Can you say at what time a search record was done

24 concerning the search in the INDA-BAU premises?

25 A. The record as a rule is filled out on the spot. The

Page 3557

1 only exception was in connection with Mucic. There we

2 filled that out in the office in police headquarters.

3 The protocol, the record that has to be filled out on

4 the spot, because a copy is made and the person who is

5 present at the spot gets a copy, the witness or the

6 person concerned, and then we keep a copy for the file.

7 Q. By whom was the INDA-BAU search record signed?

8 A. At INDA-BAU there were the signatures of Ms. Delalic and

9 of Elvir Rizvanovic, and Navrat, Knauder and Klauser,

10 those three being the police officers.

11 Q. Was there a time when Mr. Mucic was required to sign the

12 search record of INDA-BAU?

13 A. As far as I can recall, that wasn't the case, but he

14 couldn't have signed it because it's a record, and only

15 those present would sign that record, the Niederschrift,

16 and as Mucic was not present at the search he should not

17 sign.

18 Q. Was there a time when Mucic was requested to sign the

19 INDA-BAU search warrant?

20 A. The search warrant that Mucic received, there were

21 various addresses on there, and the person concerned of

22 the search as ordered by the court was in each and every

23 instance Mucic, so he was the person concerned.

24 Q. Did he then put his signature on the search warrant for

25 that reason?

Page 3558

1 A. He received it, but I can't say whether he signed the

2 search warrant or not.

3 Q. Going back to the material which was seized in the

4 INDA-BAU premises and you said Mr. Navrat brought into

5 Room 331 where was all this material contained? I mean

6 again into bags or boxes. How many bags or boxes?

7 A. There was a sports bag. In Taubergasse 15, Door 14,

8 Mucic's things were put into boxes the things from

9 INDA-BAU were taken. They were already in boxes so

10 they were just kept in boxes or, shall we say, taken

11 out, had a look and put back into boxes.

12 Q. Were there any folders or files of written documents

13 among the material seized in the INDA-BAU premises?

14 A. Yes. There were documents and files. As far as I can

15 remember there were 12 folders.

16 Q. Thank you. Was there any video tapes among the

17 INDA-BAU material?

18 A. Yes, a large number of videotapes were seized.

19 Q. Do you remember -- as far as you can remember, how many

20 videotapes were seized in the INDA-BAU premises?

21 A. About 50 videotapes. There were a few problems and

22 apparently there was a miscount, but roughly 50, 51.

23 It said 51 and then it turned out to be 54.

24 Q. How many videotapes were seized in Mr. Delalic's

25 apartment approximately, as far as you remember?

Page 3559

1 A. About 30.

2 Q. So you have been saying about some mistake in the

3 counting of the videotapes. What kind of a mistake in

4 the counting of the videotapes took place and when was

5 it corrected, if any time? Can you explain this point?

6 A. Well, on the basis of the file, Taubergasse 15, Door 10,

7 I think in that instance it was corrected right away.

8 That was noted into the record by the way. With regard

9 to INDA-BAU, that was only corrected subsequently.

10 Q. Again about the videotapes, were the videotapes

11 classified with some sticker, some labels, some

12 numbering?

13 A. After they were seized the videotapes from Mucic's

14 apartment were numbered on the same day, on 18th March,

15 and with regard to the numbering of the other videos,

16 they were numbered the following day.

17 Q. And some stickers were --

18 A. Stickers were put on the videotapes. The ones from

19 Mucic's apartment were given an "M" for "Mucic" and then

20 we put in numbers 1A, 1B, 1C, 1D, and the videotapes

21 that were numbered later on, that is to say from

22 INDA-BAU, and those from Taubergasse 15, Door 14, they

23 were given numbers as following: "I" for "INDA-BAU".

24 Q. Go on, please.

25 A. And then the additional number that would come after

Page 3560

1 that.

2 Q. What about the tapes?

3 A. And the others for Delalic, they were given a "D" "and

4 then a number after that as well.

5 Q. Did you personally do this operation of putting stickers

6 with numbers on the videotapes?

7 A. Not for the videotapes, no, I didn't.

8 Q. Who did that?

9 A. Panzer did that.

10 Q. Mr. Moerbauer, did you see in that same day of March 18th

11 any investigator or anyway any officer of ICTY?

12 A. Yes, there were people from the Tribunal who were --

13 Q. Where?

14 A. In the office, in Room 331.

15 Q. Can you say how many were they and who were they, if

16 possible?

17 A. As far as I know, there were four persons there. One

18 of them was an interpreter, a woman. With regard to

19 the other people, I can't remember their names.

20 Q. Approximately at what time did they arrive in Room 331?

21 A. Well, when we'd started with the record, the

22 Niederschrift, we began with that at 7.30 pm with Mucic,

23 and at that time those persons were no longer present.

24 Q. I didn't get you exactly. At what time did they arrive

25 in Room 331?

Page 3561

1 A. Between 5 o'clock and 7.30 then. They were present

2 during that time.

3 Q. All right. Thank you. Was there any time when

4 Mr. Mucic could remain alone with any ICTY officer that

5 day?

6 A. I was not in the office throughout, but I wouldn't think

7 so. Mucic was arrested by us and it's not customary

8 and it's something you shouldn't do to leave him alone

9 with those people, and the interpreter I said was there

10 as well, so I would rule out that possibility.

11 Q. Thank you. What did the ICTY officers do after their

12 arrival at Room 331?

13 A. Well, Gschwendt told me that these persons had the

14 possibility of having a look at the seized documents and

15 the videos, that this had been agreed with the judge,

16 and the interpreter looked at the seized papers. So

17 Gschwendt gave me the order to make copies of the seized

18 material that were subsequently given to the people from

19 the Tribunal. This was all with the agreement of Judge

20 Seda. That's what I was told.

21 Q. Did the ICTY officers request to watch some videos too?

22 A. Yes, and they were given that possibility.

23 Q. When was that possibility given to them?

24 A. It was during that time period, between 5.00 and 7.30 in

25 the afternoon.

Page 3562

1 Q. How many videos they could watch?

2 A. The four videos from Mucic's apartment, but they weren't

3 looked at in their entirety. They were just briefly

4 viewed.

5 Q. Were you with them in this watching operation?

6 A. Yes.

7 Q. Were all the ICTY people present involved in this

8 watching?

9 A. No.

10 Q. How many of them?

11 A. At times there was only one person and at other times

12 there were two people involved in watching the video.

13 Q. Was this videotape watching done in Room 331 or in a

14 separate room?

15 A. No, it was in a separate room.

16 Q. How did you proceed?

17 A. Well, we put the tapes in the VCR -- it's a bit

18 complicated but anyway. We also tried to make a copy

19 right away, because the court had authorised videotapes

20 -- copies of videos to be handed over to people from

21 the Tribunal, but that didn't work.

22 Q. So you say you didn't see entirely these tapes anyway?

23 A. No.

24 Q. How long did that take, this watching operation?

25 A. About an hour.

Page 3563

1 Q. What about the request of ICTY people concerning copies

2 of some documents, too? What did they exactly request

3 to have immediately?

4 A. I had the documents to be copied. I had the folders

5 and the documents were in there, and then I took those

6 documents into a different room and made copies, but

7 I made two copies of the documents, a copy of which was

8 given to the Tribunal people.

9 Q. Mr. Moerbauer, my question was: did this request concern

10 a selected number of documents?

11 A. Well, the Tribunal interpreter flipped through the

12 folders and wanted to have copies of certain documents.

13 Q. Approximately how many?

14 A. Well, about 30-50 pages.

15 Q. Okay. Was it done again with the permission of

16 Mr. Gschwendt?

17 A. Yes.

18 Q. And with the permission of the judge?

19 A. Yes. It went via Department 210 again, it was

20 Department 210 that discussed this with Judge Seda.

21 That is how it happened but Gschwendt told me to make

22 the copies and it was known there had been consultation

23 with the court about that.

24 Q. So you personally photocopied these selected documents;

25 is that correct?

Page 3564

1 A. Yes.

2 Q. When did you do that?

3 A. Now was it before the videos or after the videos?

4 I can't really say but in pretty much the same

5 time-frame, between 5.00 and 7.30 in the afternoon.

6 Yes, it is between 5.30 and 7.30.

7 Q. Did you do that in Room 331 or in a separate room?

8 A. No, the copy room is at the other end of the building.

9 Q. How long did this photocopying operation take

10 approximately?

11 A. About half an hour.

12 Q. How did you proceed? Did you do only one copy of each

13 selected document?

14 A. No. With regard to the documents the Tribunal obtained,

15 I made two copies, one copy for the Tribunal and one

16 which I added, as it were, to the folders.

17 Q. What do you mean to the folders? Each one to the

18 relative folder?

19 A. I would have a folder. I'd copy the documents there

20 and I'd put the originals back into the folder, and the

21 other documents I kept outside the folder. I put them

22 on top, I think. There were 12, I believe, folders all

23 together, but it was only some folders that had

24 documents in them that were copied, and I made, as

25 I said, two copies, one for the Tribunal, one for us,

Page 3565

1 and then the folders were given numbers. It said "I"

2 for INDA-BAU. Then they were numbered 1 through 12.

3 The individual pages were not numbered at that stage.

4 Q. So if I didn't misunderstand you, for each selected

5 document you did a copy for the ICTY people and a copy

6 which you put in the pertinent folder, together with the

7 -- on the pertinent folder, together with the original;

8 is that correct?

9 A. Yes. Not in the folder; on the folder.

10 Q. When did you give to the ICTY officers their

11 photocopies?

12 A. Well, all was done right away. I got a folder, made

13 the copies, went back and gave the copies to the person

14 in question.

15 Q. By the way, was any of the ICTY officers present with

16 you at the photocopying operations, of this photocopying

17 operation?

18 A. No.

19 Q. What did you personally do after these photocopying

20 operations?

21 A. Well, after the copies were finished, the people from

22 the Tribunal left. I don't know what they did then.

23 I was in the room briefly, so 7.30 the Niederschrift had

24 already begun with Mucic. It was Borlak who were

25 working on that. I was just there on and off. Then

Page 3566

1 about 8.30 pm, after the Niederschrift -- there's two

2 parts to it. There's about the individual part and

3 then there's about the case. It was Borlak who began

4 the first part. Then as of 8.30 I took over with the

5 -- about the case part of the record, the

6 Niederschrift.

7 Q. Do you mean that the ICTY people were not there any more

8 at the beginning of the police interview?

9 A. They were not there when we took this down for the

10 record.

11 Q. So did the police interview with Mr. Mucic take place in

12 the same room, 331?

13 A. Yes.

14 Q. So, as I understand, you did not take part from the

15 beginning; is that correct?

16 A. I was there on an on-and-off basis. I wasn't there

17 when it was started. Then I was back in the room then

18 I'd step out for a minute, and when the document got to

19 the -- about the case part, that's when I took over and

20 I was there from then on until the end.

21 Q. So who did inform Mucic about his rights right at the

22 beginning of the interview?

23 A. That would have been Borlak who would have done that.

24 Q. I beg your pardon for a second, your Honour.

25 Mr. Moerbauer, can you tell the court which are the

Page 3567

1 rights a suspect must be informed of by the Austrian

2 police officers at the beginning of a police interview?

3 A. Well, he was being questioned as an accused person, and

4 as such he need not speak, but he does have the

5 possibility to make statements. Those statements will

6 be used before a court. Should he proceed with a

7 confession, that would be grounds for mitigation. That

8 is provided for in the law. Then he also had the

9 possibility of notifying a lawyer.

10 Q. Yes. Go ahead?

11 A. He need not say anything that might incriminate a

12 relative, etc. So that's the basis for not speaking,

13 and he is advised to speak the truth. Now when it comes

14 to the Niederschriften records, he may lie to me. I'm

15 not in a judicial authority, so that's not punishable.

16 Q. Mr. Moerbauer, after you have joined the interviewing

17 team --

18 JUDGE JAN: Just a minute. You also tell him: "You can

19 tell a lie to me", a police officer when interrogating

20 an accused telling him: "You can tell a lie to me"?

21 A. No, he is told to tell the truth but the bottom line is

22 it doesn't matter if he tells the truth or not.

23 There's no consequences, as it were.

24 MR. TURONE: This is our civil law system.

25 JUDGE JAN: That is what he said, that he was told he can

Page 3568

1 tell a lie.

2 MR. TURONE: After you joined the interviewing team who were

3 the persons present in the room and who were the persons

4 taking part in the interview?

5 A. With regard to about the case part, I went ahead with

6 the questioning. The interpreter was there, Ms.

7 Supput. Also in the office most of the time Panzer was

8 there and at times Gschwendt was there and Bycek, Borlak

9 kept coming in as well, but with regard to the questions

10 relating to the case, I put those questions.

11 Q. At what time was the interview finished?

12 A. About 1 o'clock, but -- well, rather at the beginning --

13 rather, the beginning and the end of the interview are

14 indicated on the record, on the Niederschrift.

15 Q. Was there any break in the interview?

16 A. No, there wasn't any break, but Mr. Mucic was provided

17 with drinks and coffee. He didn't want anything to

18 eat, but at 1.15, when he was handed over to the court,

19 I went with him and he was given a sandwich and an apple

20 by Panzer.

21 Q. Okay. So who were the persons who signed the interview

22 record?

23 A. The record was signed by Mucic, by the interpreter and

24 by all of the people who were present during the

25 interview. Even if they were only there briefly, they

Page 3569

1 still signed.

2 Q. All right, Mr. Moerbauer. What did you do right after

3 the end of this interview?

4 A. I took Mucic to the 9th District to the prison there and

5 he was transferred to the prison authorities.

6 Q. How did you bring Mr. Mucic there? Did you drive there?

7 A. We drove there with an official vehicle.

8 Q. Did you have occasion to say some words, to talk to

9 Mr. Mucic during the drive to the prison?

10 A. Yes. We told him we were taking him to the detention

11 centre the following day. He already knew that, but

12 that he would be questioned by the investigating judge,

13 and we talked to him just briefly.

14 Q. In which language did you talk to him?

15 A. In German.

16 Q. Did he give some answer? Did he say something to you?

17 A. Yes. He doesn't speak excellent German, but it's good

18 enough to make himself understood.

19 Q. Did you have any occasion to see Mr. Mucic again after

20 this in the following days or weeks?

21 A. No.

22 Q. Did you have any occasion to see again the ICTY officers

23 in the following days?

24 A. On 20th March a South African, I think Dutoit, was in

25 the office and received the copies of the videotapes

Page 3570

1 from Mucic's apartment, and there was a call by Bycek to

2 the court and Dr Seda was told that the tapes had been

3 copied and that Mr. Dutoit was there and --

4 MR. GREAVES: With respect, your Honour, he is relating a

5 conversation by some completely different person. Was

6 he present during this conversation or not?

7 A. Well, I was present during that telephone call. Dutoit

8 was in the office and Dutoit also spoke to the examining

9 magistrate and subsequently Bycek filled out a document

10 saying that Dr Seda would be handed over, and it was

11 noted down that Dr Seda had received a written request

12 to send a written approval. Dr Seda said he didn't

13 have time to do that and that we should note down in our

14 document.

15 Q. Did you personally have a conversation with this officer

16 of ICTY?

17 A. Yes, but just about work in a general way of the

18 Tribunal.

19 Q. How long did this person remain?

20 A. Half an hour.

21 Q. Half an hour. Was there any other occasion for you to

22 see any of the ICTY officers after this short visit and

23 in the immediate following days?

24 A. No.

25 Q. What about all the original seized material? Where was

Page 3571

1 it kept in custody after the seizure and in the

2 following days?

3 A. The seized material was in the boxes, in a sports bag,

4 and the boxes were put in a cabinet that could be locked

5 in the office. That's where they were kept.

6 Q. Did you ever photocopy the seized document entirely for

7 your police file in the following days?

8 A. For the police records, yes, the relevant documents were

9 copied.

10 Q. Did you proceed personally?

11 A. Yes, I did.

12 Q. When did that occur?

13 A. Just before the translation work was done I copied all

14 the documents, that is to say in the week following the

15 arrest. We started in part on the following day.

16 Q. So was this photocopying of the entire bunch of relevant

17 matter done the following day?

18 A. On the next or the day after that.

19 Q. We understand that the majority of the written documents

20 were contained, as you said, in one folder seized in

21 Mr. Delalic's apartment and in 12 folders seized in the

22 INDA-BAU premises. Did you photocopy the documents

23 contained in all these files for your personal police

24 file?

25 A. A large part. There were some notes of things that

Page 3572

1 were illegible. We didn't copy that. So sometimes

2 you just have notes with scribbling on them, and we

3 didn't copy things that were in another folder. There

4 were some things that were quite sizeable and we knew

5 that they were in other folders, so we didn't make

6 another copy of them.

7 Q. Did you organise this -- I mean, did you organise the

8 photocopies for your file in the same order and dividing

9 them in the same way as the originals?

10 A. Yes.

11 Q. Did you examine thoroughly the whole seized material in

12 the following days?

13 A. Yes, it was looked at thoroughly.

14 Q. Was that done by you personally?

15 A. Yes, in the presence of the interpreter.

16 Q. Were you instructed by Mr. Gschwendt to perform this

17 task?

18 A. Yes.

19 Q. Did you start examining the videotapes or the written

20 documents or both?

21 A. I started with the video cassettes.

22 Q. So how did you proceed with the video cassettes?

23 A. Well, we took the tapes and we played them at fast

24 speed, and we looked to see whether there was any

25 mistreatment that had been filmed on the tape. Then

Page 3573

1 some notes were made about the contents of the tape.

2 That was written by hand. Then subsequently that was

3 put in a more formal document.

4 Q. I see from the transcript you say "we took the tapes and

5 we played." Did you do that?

6 A. Other officers also looked at tapes as well. I saw

7 some 60 tapes myself.

8 Q. Did you watch the videos together with an interpreter?

9 A. No, because we weren't concerned about the sound

10 track. We wanted to know whether any mistreatment had

11 been filmed. At the time it wasn't that relevant for

12 us to know what the sound track might be about.

13 Q. How long did that take, to examine all these seized

14 videotapes?

15 A. Viewing the tapes took one and a half to two weeks.

16 Q. In which day did you start examining these videotapes?

17 A. The following day we already got underway with viewing

18 the videotapes. On the first day not many could be

19 seen because we only have one VCR and there were the

20 tapes that had to be made for the Tribunal. After that

21 it speeded up considerably, because they could be viewed

22 at fast speed.

23 Q. When you say that the work took between one week and a

24 half and two weeks, do you mean you worked full-time or

25 part-time on the videotapes watching?

Page 3574

1 A. Well, most of the time was spent on videotapes and on

2 part when there wasn't anything else to do, because in

3 the following week we began with the translation of the

4 documents. Even that same week on the Friday the

5 documents were perused with the interpreter, and when

6 the interpreter left -- sometimes she left earlier --

7 then we would be looking at videos again.

8 Q. So on which day did you start examining the written

9 documents then?

10 A. The documents were looked at during the week of the

11 arrest. We started on Friday with an interpreter and

12 that concerned the translation of the newspaper

13 articles, but that particular interpreter was not

14 available any further, and then Monday of the following

15 week Ms. Supput, who had been present during the

16 interview, continued the work of looking at the

17 documents.

18 JUDGE KARIBI WHYTE: Mr. Turone, it's convenient to have a

19 lunch break there.

20 MR. TURONE: All right. Yes.

21 JUDGE KARIBI WHYTE: We will resume at 2.30.

22 (1.00pm)

23 (Luncheon adjournment)



Page 3575

1 (2.30pm)

2 (Witness re-enters court)

3 (Interpreter re-enters court)

4 JUDGE KARIBI WHYTE: Kindly remind the witness he is still

5 under oath.

6 THE REGISTRAR: Mr. Moerbauer, may I remind you you are

7 still under oath?

8 A. Yes.

9 JUDGE KARIBI WHYTE: Yes, Mr. Turone?

10 MR. TURONE: May I proceed, your Honour?


12 MR. TURONE: Thank you, your Honour. So the question on

13 which we had the break was on which day you started

14 examining the written documents. You said you started

15 on Friday?

16 A. Yes, it was on Friday.

17 Q. Which Friday?

18 A. That was on 22nd March.

19 Q. 22nd March. Can you say on which day did you finish the

20 examination of these written documents?

21 A. The analysis with the interpreter was wrapped up on 2nd

22 April, so we were done on 2nd April and my notes were

23 only typed up later, and the whole analysis was done

24 towards the end of April.

25 Q. Right, but remain on the practical examination operation

Page 3576

1 done on these days between March 22nd and April 2nd.

2 So this always together with the interpreter; is that

3 correct?

4 A. Yes, it was always done with the interpreter.

5 Q. How did you proceed exactly in this examination of

6 documents with the interpreter?

7 A. The folders had already been numbered. I said there

8 was the initial "I" for INDA-BAU, "M" for the documents

9 from Mr. Mucic's apartment, and "D" "for the items that

10 had been seized at Taubergasse 15, Door 14, and the

11 folders were given an additional number. The first

12 INDA-BAU folder was given then a I1. So we had numbers

13 1 through 12. The individual documents were given an

14 additional number. So the first INDA-BAU document had

15 I1/1. Then the others were numbered successively.

16 Q. Did you actually proceed in the examination with the

17 interpreter? Did you take the documents one by one?

18 A. Yes, we took one document at a time. The interpreter

19 read out the document and I made notes in handwriting

20 about the contents of the document.

21 Q. So you did not have a written translation done before,

22 before starting this examination; is that correct?

23 A. Before I began with the analysis there was no

24 translation, no.

25 Q. You mean the interpreter read out the documents one by

Page 3577

1 one in German translation for you?

2 A. Yes, she read the documents and I wrote along.

3 Q. Were all the documents already numbered inside every

4 single folder in which they were contained?

5 A. No. The documents -- well, the interpreter was given

6 the document, read it, and then it was given the second

7 number.

8 Q. What do you mean the second number?

9 A. It had an initial "I" and then there is a number

10 depending on which folder it came from, and then

11 thereafter another number was added to the documents.

12 That's the second number, the one after the slash.

13 Q. I see. This was done during the examination?

14 A. During the analysis, yes.

15 Q. You took notes during the examining work?

16 A. Yes, that's right.

17 Q. Did you do this work using the original seized

18 documents?

19 A. Yes, the originals were used.

20 Q. So since you said that work started on March 22nd and

21 ended on April 2nd, you mean you worked every day, even

22 in holidays? How many working days did you sit with the

23 interpreter examining the seized documents?

24 A. Eight working days with the interpreter, Friday, then

25 Monday through Friday, and then Monday and Tuesday.

Page 3578

1 Q. So eight working days. How many hours every single

2 working day?

3 A. It depended. Sometimes the interpreter was in by 8.00,

4 stayed to 4.00. Sometimes she came in at noon and

5 stayed to 4.00 or 6.00 in the afternoon. It would

6 change.

7 Q. Since you told us that you had also examination of

8 videotapes in the same period of time, did that happen

9 that in the same days you employed extra time to go on

10 examining the videotapes?

11 A. Overtime was put in and in part work was done on the

12 weekends.

13 Q. All right. Was there a time when you recollected all

14 your notes on the seized material and typed them in an

15 organised way?

16 A. That was after all the documents had been examined,

17 after working with the interpreter. The handwritten

18 notes were typed up.

19 Q. Was there a time when you prepared a final report based

20 on these notes?

21 A. The final report was drafted at the end of April.

22 Q. Did this report contain the specific description of the

23 seized items on the basis of your previous notes?

24 A. It includes a short list of the contents and the

25 significant documents are described in more detail.

Page 3579

1 JUDGE JAN: Mr. Turone, do you intend to produce his note as

2 part of the evidence? You are going into such details.

3 MR. TURONE: This final report, this is our intention.

4 JUDGE JAN: This is his interpretation of the documents as

5 he understood them.

6 MR. TURONE: As I understand, we are going to have some more

7 questions about the content of this report.

8 MR. GREAVES: Has he been designated as an expert? He's

9 interpreting documents. Is he an expert? Has he been

10 designated as such?

11 JUDGE JAN: Interpretations may differ. That is what his

12 impression of the document is.

13 MR. TURONE: I beg your pardon. The witness has now been

14 talking about description of documents. Anyway, I will

15 go to some other question.

16 JUDGE KARIBI WHYTE: I wish I understood where you are

17 going, but if all he did was to collect documents,

18 itemise them and then finally put them into place, I do

19 not see all the force about it other than he described

20 how he took the documents out and the way he preserved

21 them. That is all he tried to show. I'm not

22 interfering with your method of approach. Go ahead.

23 MR. TURONE: My goal is to reconstruct in the most complete

24 possible way the work done by this witness.

25 JUDGE KARIBI WHYTE: Thank you very much. You can go

Page 3580

1 ahead.

2 MR. TURONE: Was this final report handed over to the judge

3 of the regional court of Vienna?

4 A. Yes, he was handed this report.

5 Q. When did that happen?

6 A. The file was sent by me at the end of April and the

7 report that was finally submitted by the police

8 headquarters to the court, well, I can't tell you

9 exactly what time that occurred.

10 Q. Was that handed over to Judge Seda?

11 A. The papers were transferred to the competent judge. I

12 don't know whether it was Dr Seda or other judges who

13 received this. This was handed over to the competent

14 court.

15 Q. Was all the original seized material handed over to the

16 same judge?

17 A. The material was handed to the competent judge. It was

18 Dr Seda. There was also a second judge who dealt with

19 this, Dr Bonet, but I don't know whether he or Dr Seda

20 received these documents. I can't tell you.

21 Q. Was the original seized material handed over to the

22 judge on the same day when the final report was handed

23 over?

24 A. I don't know, because my final report with the seized

25 items was handed over to police headquarters in Vienna,

Page 3581

1 which then subsequently transmitted these things to the

2 court. So the headquarters addressed these documents

3 and the seized items to the Vienna District Court.

4 Q. Do you have a direct knowledge of the subsequent

5 delivery of the seized material to some representative

6 of ICTY?

7 A. It was midday, about the 25th May, Sabine Manke came

8 from the Tribunal. She came to our offices and I went

9 to the Vienna District Court, and Dr Bonet, who was the

10 competent judge at the time was handed -- she was handed

11 these objects by this judge.

12 Q. So you were personally present to this delivery?

13 A. Yes, I was present.

14 Q. Did Miss Sabine Manke receive all the seized material?

15 A. She received a form listing the seized material and the

16 seized material that was on the form was what she

17 received.

18 JUDGE JAN: She was a witness before us.

19 MR. TURONE: She was before us.

20 JUDGE JAN: Did she say she went to collect all that

21 material?

22 MR. TURONE: Miss Sabine Manke was a witness before us. I

23 don't recall now whether she was --

24 MS. McHENRY: Your Honour, I believe when she testified, all

25 she testified was regarding the statement of Mr. Delalic.

Page 3582

1 JUDGE JAN: She didn't say she received the documents from

2 the district courts.

3 MS. McHENRY: No, your Honour, I believe there was no

4 evidence in either direct or cross-examination into that

5 issue.

6 MR. TURONE: Was this delivery done subsequent to an order

7 issued by the Austrian judge?

8 A. Yes, this was received from Dr Bonet of the Vienna

9 District Court.

10 Q. All right. Your Honours, we have now the numbering of

11 -- a number of items for purposes of identification

12 from the part of this witness. They are in all 47

13 items, including seven videotapes, which for reasons of

14 convenience have been already numbered, I believe, by

15 the Registry and which we would like to show the witness

16 for purposes of identification. The binders containing

17 copies of these 47 written documents, including the

18 English transcripts of the seven videotapes are ready

19 and the original items are numbered 104-148. The

20 respective English translations are numbered 104A-148A

21 except for two passports, which do not require any

22 translation. So we have three copies of these binders

23 for your Honours. Of course, the binders are already

24 in the possession of the defence counsel, because

25 counsel has all the seven videotapes besides all the

Page 3583

1 other videotapes which were anyway disclosed to them,

2 and I would ask the binder with the original items be

3 made available to the witness for the purposes of

4 identification?

5 MR. ACKERMAN: Your Honours, may I say that we discovered --

6 first of all, I agree that the Prosecution did bring us

7 a set of these binders and videotapes to be shared among

8 defence counsel. It became necessary for us to look at

9 those this morning. We know the cabinet that they were

10 in, that they were stored in. They have unaccountably

11 disappeared from the defence room. No one seems to

12 know what has happened to them. Fortunately one

13 counsel was able to get a copy made before they

14 disappeared but there is still one copy floating

15 around. I'm not sure that causes any problem

16 particularly, but I just wanted to report to the court

17 that it had happened and somebody had come and removed

18 them from that room and we don't know how and we don't

19 know who.

20 MR. TURONE: I'm sorry. This is quite new to us. We gave

21 these binders three weeks ago to all defence lawyers.

22 JUDGE JAN: What hes saying is they've disappeared. He

23 doesn't say that you did not deliver them. He says

24 they've disappeared from the defence room. I'm sure

25 the Prosecution has got nothing to do with the

Page 3584

1 disappearance.

2 MR. ACKERMAN: I wasn't suggesting they did, your Honours.

3 I'm not throwing any stones at the Prosecution at all.

4 JUDGE JAN: No, you're not.

5 JUDGE KARIBI WHYTE: That is a serious matter for the

6 security of this Tribunal. How can things disappear

7 from counsel's room?

8 MR. OSTBERG: We will certainly look into this matter

9 immediately.

10 JUDGE JAN: The defence room then becomes insecure.

11 MR. OSTBERG: It is very surprising and disturbing. I will

12 find what has happened.

13 JUDGE KARIBI WHYTE: This is the second complaint about

14 things happening in that room.

15 THE REGISTRAR: The Registry will look into this matter

16 immediately.

17 MR. TURONE: Did I understand that we can anyway proceed

18 now?

19 JUDGE KARIBI WHYTE: I don't know with their handicap we

20 should, but it's a very serious complaint and I think it

21 has to be settled.

22 MR. ACKERMAN: I couldn't with a straight face announce a

23 handicap, since there are only a couple of these

24 documents that have anything to do with my client.

25 I think I know which they are and I'm prepared to object

Page 3585

1 to them not having ever seen them, to my knowledge, but

2 I think I know what they are in any event.

3 JUDGE KARIBI WHYTE: Yes, you can go on.

4 MR. TURONE: All right. Thank you, your Honour. Your

5 Honours, there is also an issue of identification

6 concerning the seven videotapes which are included in

7 these -- among these 47 items. The Prosecution is

8 going to have this witness identify these seven tapes.

9 Of course, not all of the material on this tape is

10 relevant in the submission of the prosecution, and they

11 are actually very, very long. The seven tapes, the

12 total running of the seven tapes, would be about 17

13 hours, and we -- our submission is the main part of them

14 is actually -- of these 27 -- I mean, 17 hours are

15 actually non-relevant. So in an effort to assist the

16 Chamber and the defence and to move things along, we

17 made excerpts of the parts which the Prosecution

18 considers relevant of these videos and we prepared these

19 excerpts. The total running of the excerpts videos is

20 about two hours and fifteen minutes approximately.

21 Some time ago we gave the defence copies of both the

22 original videos and the excerpts videos, and the

23 transcripts both of the total videos and of the excerpts

24 videos, so that the defence could themselves verify

25 this. Of course, the witness has also seen the videos

Page 3586

1 in original when he examined them, of course, but we had

2 him watch in recent times the seven original tapes in

3 part, and also these seven excerpts videos in part.

4 Thus we will now show during this hearing -- we will

5 seek to show the witness the excerpts of these seven

6 videos, so that he might identify them as coming from

7 the tapes he seized. The excerpting from the seven

8 original videos into seven excerpt videos does not

9 correspond only to a matter of convenience for all of

10 us, but will apply also to the future discussion which

11 will take place in this courtroom as for the

12 admissibility and the relevancy and so on. So we think

13 that we are now going to have all the documents which we

14 seek to tender in future into evidence identified by

15 this witness and also these videos through the watching

16 of the excerpts videos. So we prepared also --

17 JUDGE KARIBI WHYTE: Can you kindly -- have these videos

18 titles?

19 MR. TURONE: I beg your pardon?

20 JUDGE KARIBI WHYTE: Have they titles?

21 MR. TURONE: Yes. They have some titles. They have

22 titles. All the introduction is to say they are going

23 to be handed over to your Honours --

24 JUDGE KARIBI WHYTE: Can they be identified by their

25 titles?

Page 3587

1 MR. TURONE: I will ask some question to this witness right

2 on this point. Since the defence received all the

3 excerpt videos and the original videos, they had anyway

4 the possibility to see how the excerpts correspond to

5 the original.

6 JUDGE KARIBI WHYTE: Why is it so difficult for you to

7 answer a simple question?

8 MR. TURONE: Which is the question, your Honour?

9 JUDGE KARIBI WHYTE: Can't they be identified by their

10 titles?

11 MR. TURONE: Yes, they can. "Excerpt video of original

12 video so-and-so". So could we give to the judges also

13 the excerpt videos and excerpt transcripts also? Thank

14 you.

15 JUDGE KARIBI WHYTE: Mr. Moran, you want to say anything?

16 MR. MORAN: I'm at a bit of a loss what the Prosecution --

17 if I could get the Reader's Digest version ... just from

18 looking at the index of the documents they are

19 purporting to get in through this guy, about half a

20 dozen or one dozen of them are entitled "English

21 translations". Unless somebody can show this man speaks

22 English and presumably Serbo-Croatian, I don't know how

23 he can authenticate an English translation of

24 anything. Like I say, I'm just at an absolute loss

25 where we're heading. If somebody could help me out ...

Page 3588

1 MR. TURONE: May I respond to Mr. Moran? This witness is not

2 supposed to identify an English translation of

3 anything. This witness will be requested to identify

4 some seized documents and within these seized documents

5 there are also seven videotapes. He'll be requested to

6 identify the videotapes both through their external

7 appearance and the labels appearing on them and through

8 watching the videos which he's been examining thoroughly

9 during one week and a half of his working days.

10 About the Reader's Digest, I think that there is a

11 matter of identification which is somehow intermingled

12 with a matter of assessing the relevancy of these

13 videotapes. As I told already the court, the total

14 amount of the seven videotapes, the total running time

15 of the seven videotapes is 17 hours approximately. If

16 the Prosecution should believe that every single minute

17 of these 17 hours were relevant, we would probably

18 consider relevant all the 17 hours of tape, but as a

19 matter of fact we, the Prosecution, from the point of

20 view of the Prosecution, and I'm quite aware that this

21 will be discussed later on, consider relevant, possibly

22 relevant only about two hours and fifteen minutes of

23 these 17 tapes. So the identifying issue intermingles

24 with the relevancy issue in the sense that we are going

25 to ask the witness to identify the tapes, not only

Page 3589

1 through their external appearance, because as a matter

2 of good sense we believe that a tape cannot simply be

3 identified by a mere recognition of the external box

4 containing him. It must be recognised also through the

5 real watching of it. So there is an identifying issue

6 concerning these tapes.

7 On the other hand, the relevancy issue advises us

8 to propose, to suggest to the court and to the defence

9 to show for identification purposes and in view of the

10 quite near discussion on relevancy, to show the parts of

11 the tapes which we, the Prosecution, consider possibly

12 relevant. This is why we are not seeking to show 17

13 hours of tapes in this courtroom, because we believe

14 that about fifteen, fourteen hours of tapes are

15 non-relevant. Of course, the defence lawyers have the

16 whole tapes. They might use any other part of the

17 tapes which we, the Prosecution --

18 JUDGE KARIBI WHYTE: It is as if we were not in the same

19 Trial Chamber. They have explained to you the ones

20 given to them have disappeared. Apart from that, are

21 you suggesting that we'll sit here watching all these

22 tapes?

23 MR. TURONE: I'm suggesting -- this is my suggestion, your

24 Honour, that we sit here watching the excerpted parts of

25 these seven videos for identification purposes and in

Page 3590

1 view of the future at the end of this testimony

2 discussion and decision on the relevancy and

3 admissibility of these --

4 JUDGE JAN: I'm not sure if I've understood you

5 correctly. The witness stated that these videos were

6 recovered from the property occupied by the two accused.

7 MR. TURONE: Exactly.

8 JUDGE JAN: All he can say is this excerpt we have obtained

9 was part of them.

10 MR. TURONE: Exactly.

11 JUDGE JAN: The whole tape has to come and becomes part of

12 the record.

13 MR. TURONE: Yes, exactly.

14 JUDGE JAN: So relevancy or irrelevancy or admissibility,

15 they do not arise. He says this is a tape that was

16 found there and the excerpt was part of that particular

17 tape, nothing more than that.

18 MR. TURONE: Yes. He'll only say that this excerpt is part

19 of one of the tapes he could watch personally during the

20 examination work, and he could recognise -- he's

21 supposed to be in a position to recognise these seven

22 videotapes through watching the excerpts of them.

23 JUDGE JAN: If you take an excerpt, the whole thing has to

24 be admitted into evidence, because an excerpt cannot be

25 taken out of evidence. The whole tape will have to be,

Page 3591

1 because it is talking about relevancy of the rest of the

2 tape.

3 MR. TURONE: Yes, of course. All the tapes -- I might try

4 to be clear. The whole tapes, the whole seven -- the

5 entire seven tapes are going to be -- are seized

6 material and they are the seized items, and the

7 Prosecution is seeking to enter them into evidence

8 entirely simply because the entire item has to be

9 considered a seized item. It wouldn't be proper to cut

10 an original.

11 JUDGE JAN: So all you can say is for your purpose this

12 excerpt is only relevant but the whole has to be part of

13 the record.

14 MR. TURONE: They are part of the record. All the

15 videotapes are part of the record. All the videotapes

16 would be entered into evidence for them in reality as

17 identity of original seized items. The excerpts are

18 only a handy device in order to have the videos, first

19 of all, recognised, identified by the witness, and then

20 to give an idea of what is relevant in the submission of

21 the Prosecution in order to aid the future discussion on

22 admissibility and relevance.

23 JUDGE JAN: You don't talk about relevancy. You say you

24 like on this portion only. The whole thing has to be

25 part of the record. It's not a question of relevancy.

Page 3592

1 THE INTERPRETER: Microphone, your Honour, please.

2 JUDGE JAN: It is a question of --

3 MR. TURONE: I know. I'm anticipating something which in

4 future will come out. Let us say that our suggestion

5 is to show now the excerpts videos to the witness in

6 order to have them identify the items through a part of

7 them instead of having him and the entire court watch 17

8 hours of tapes. Of course, I'm not going to start with

9 the tapes. I'm going to start in numbering order

10 according to the index list of the items, but anyway

11 when I'll come to the tapes the problem would come out,

12 so I wanted to explain in advance what is the position

13 and the suggestion of the prosecution.

14 JUDGE JAN: It's a question of not relevancy but reliance

15 on the part of the prosecution. I thought there was a

16 difference between the two, relevancy and your reliance.

17 MR. TURONE: Yes.

18 JUDGE JAN: Maybe there is reliance on other portions.

19 MR. TURONE: Of course. I quite agree with your Honour.

20 Anyway, there is now a problem of identification which

21 cannot be resolved simply showing the touchable object

22 of the videotapes to this witness. I see Ms Residovic

23 wants to say something.

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

25 JUDGE KARIBI WHYTE: Yes, you can.

Page 3593

1 MS. RESIDOVIC (in interpretation): I should like to object

2 to this proposal presented by the Prosecution. First

3 of all, in the materials that we have received we have

4 in German and in English reports compiled by the

5 witness. Secondary, in those same materials we have

6 the allegedly confiscated documents in Bosnian and

7 English. It is not clear to me, as to Mr. Moran, what

8 it is that the witness has to identify: his reports in

9 German or documents which were given to us in English

10 and Bosnian, languages which this witness has no

11 understanding of, nor does he seek or write them.

12 Therefore, I am absolutely against the offered exhibits

13 being identified in this way, I'm especially opposed to

14 any kind of identification in the proposed manner

15 because the defence has already during the hearing of

16 the previous witness posed the question of admissibility

17 of these exhibits.

18 We still haven't resolved the question through the

19 examination-in-chief and cross-examination of the

20 witness whether the Prosecution gained possession of

21 various documents that it is giving to the defence

22 occasionally in a lawful manner. Flagrant violations

23 of the manner in which documents are seized can

24 eliminate them from being admitted as evidence

25 regardless of their relevancy. As this question has

Page 3594

1 not been resolved, the presentation of evidence in the

2 Trial Chamber by presenting the contents of that

3 document is absolutely unacceptable and has no grounds

4 in any Rule of this Tribunal. Thank you.

5 MR. MORAN: Your Honour, it would seem to me to be a little

6 bit more regular procedure to do this. First, I think

7 they've got a chain of custody problem that's a real

8 problem, where their officers say: "We seized 51 tapes"

9 and the next thing you know there's 54. Presumably

10 German police officers can count up to 54. Then this

11 man watched, he says, 60 tapes over eight business

12 days. Admittedly that goes to the weight, not the

13 admissibility of his testimony, but in all likelihood

14 what occurred is someone here at the Tribunal took these

15 tapes that were shipped from Vienna here and cut them

16 into segments that the Prosecution wants to admit. It

17 seemed to me that the way to do it would be you get the

18 tapes in and then you get the person that made the

19 excerpts off the tapes. It seems to me that would be

20 the more regular procedure.

21 JUDGE JAN: He can say a particular excerpt relates to a

22 particular tape. He can say that, because he has

23 seized the tapes and he has already viewed them. He

24 can say: "This particular excerpt relates to this

25 particular tape".

Page 3595

1 MR. MORAN: Like I said, that goes to the weight to be given

2 to his testimony.

3 JUDGE JAN: That comes later but at this stage we have to

4 have the material that was seized by him in his

5 presence.

6 MR. MORAN: He can testify that this tape, number, whatever

7 it is that he put the sticker on, is one that he seized.

8 JUDGE JAN: Yes. Then he can say: "This excerpt relates to

9 this tape".

10 MR. MORAN: Or in the alternative whoever made the excerpt

11 can say: "I made the excerpt from this tape". That to

12 me would seem to be the easiest procedure.

13 MR. ACKERMAN: Your Honours, I have some sympathy for the

14 position that the Prosecution finds themselves in and

15 I think I understand some of the quandary they are

16 facing. It seems to me that the way we have to go

17 about this is by discreet steps. There's no reason for

18 us to sit here and watch seven hours of videotape or 17

19 hours of videotape or two and a half hours of videotape

20 if the videotape is not admissible before this court in

21 the first place.

22 It seems to me the first step for this Chamber to

23 decide is whether or not the seizure of these documents

24 was lawful in the first place. If this Chamber was to

25 decide that the seizure of these documents was unlawful,

Page 3596

1 then it makes no sense for us to spend all this time

2 sitting here seeing video tapes, playing them and

3 reading the documents seized from those places.

4 The second problem that the Prosecution has is

5 ordinarily when a search is done the documents are

6 marked and identified before they are hauled away from

7 the scene. In this case there were apparently large

8 boxes of material hauled off to the police station and

9 only catalogued and identified at a later time. That

10 creates all kinds of questions about what might have

11 been added and what might be missing. If we get past

12 the first hurdle, then it seems to me the second one is

13 the one to deal with.

14 JUDGE JAN: May I say something?


16 JUDGE JAN: The witness has stated that one sports bag from

17 Delalic's apartment and a box and some plastic bags were

18 removed in his presence from the premises to the police

19 station, where the inventory was prepared. So we have

20 got the evidence of this witness to that extent.

21 MR. ACKERMAN: Well, what I am suggesting, your Honour, is

22 we tend to be working backwards. What we are going to

23 do is consider all this evidence and then we'll decide

24 whether or not we should have done that. It seems to

25 me that we should decide whether we should consider it

Page 3597

1 and the Chamber should consider it before we consider

2 it. It is kind of a Lewis Carroll kind of thing:

3 first the punishment, then the trial. I think this

4 Chamber first has to hear the cross-examination of this

5 witness, consider it along with the cross-examination of

6 the other witnesses yesterday, and make a determination

7 whether any of the things that were done by the Austrian

8 police were lawful under the rules of this Tribunal, and

9 once the court -- if the court decides favourably for

10 the Prosecution on that, then we can take this next

11 step, but this may be a total waste of time, if the

12 Tribunal were to agree that what happened in Austria was

13 in violation of the rules of this Tribunal, and that

14 this evidence could not be used because of that. I'm

15 just suggesting a way to maybe do this in a step-by-step

16 fashion that may save us a lot of time in the long

17 run.

18 MR. OLUJIC (in interpretation): Your Honours, if I may add

19 a few words, I agree with the previous speakers.

20 I should just like to add in relation to this witness

21 and his possible testifying regarding the tapes is

22 simply unacceptable, because the witness can only speak

23 about the authenticity of the tape, and certainly not

24 about the contents of those tapes. He can indeed

25 identify the tape as being A1, 2 or 3, but the contents

Page 3598

1 cannot be identified by this witness in a way that would

2 be relevant for this proceedings.

3 May I also add something that is so well-known,

4 that nowadays equipment is so sophisticated that a video

5 that I can be used in a host of ways. So all he can

6 talk about is the authenticity of the tapes and not the

7 truthfulness.

8 JUDGE JAN: That is taking his statement on oath that these

9 documents were recovered from the rooms occupied by

10 Delalic and Mucic and he took them to the police

11 station, where it was prepared. I do not see any

12 difficulty. He has made a statement and notes. You

13 can question him on whether it was a legal seizure. I

14 do not see how he cannot say: "This is a tape that was

15 recovered from the premises of two of the accused".

16 MS. RESIDOVIC (in interpretation): Your Honours, that is

17 the problem that we need to deal with first, the problem

18 mentioned by His Honour Judge Jan. The witness has

19 testified that in a bag and some of the things were

20 brought to the police station, but he was not present

21 when that bag was packed. Apparently there were some

22 90 tapes collected from other locations and the witness

23 has not testified about that. We also know that there

24 were some video tapes subsequently listed. We don't

25 know which ones they were. These are all matters that

Page 3599

1 we have to resolve through the cross-examination of

2 witnesses. Offering evidence for this trial to see and

3 this witness to see is absolutely unacceptable, because

4 we haven't dealt with the previous issues first. We

5 don't know whether the witness or the Prosecutor gained

6 possession of those documents in a lawful manner.

7 Therefore, our suggestion is that this question of the

8 lawfulness, or rather total unlawfulness, of the seizure

9 of documents should be raised first. Also evidence

10 offered in this way drafted according to the concept of

11 the Prosecutor directly affects my client, Mr. Delalic,

12 and their presentation is actually the presentation of

13 evidence before this Trial Chamber by the Prosecution

14 before they have been admitted as evidence. That is

15 why this procedure is quite unacceptable and contrary to

16 the rules of the Tribunal.

17 MR. TURONE: If I may briefly respond, your Honour?

18 JUDGE KARIBI WHYTE: Yes, let's hear you.

19 MR. TURONE: We would like to avoid any misunderstanding.

20 We are not now in the stage of admissibility of

21 evidence. We are now on a previous stage of

22 identification of items, and the identification of items

23 must take place at this time. We do not object that

24 any discussion about admissibility in evidence of these

25 items be postponed to after cross-examination, but at

Page 3600

1 this stage we have to be allowed to proceed to the

2 identification stage of every single item. The efforts

3 of the Prosecution is to find out a proper and rational

4 way to have also the seven videotapes identified by this

5 witness and not only the written documents, for

6 instance. For that reason we suggested possibly the

7 playing of the excerpts, but we can even suggest to show

8 not all the excerpts but only a part of it, just enough,

9 either the excerpts or the original tapes, enough as to

10 have the witness say: "Yes, I do remember" or "I don't

11 remember this tape". This can be done also, but in any

12 case it can be done without sound, of course, but we

13 must find out a rational, a reasonable way to have this

14 witness given the possibility to identify the tapes not

15 only by the external appearance but also by something

16 concerning the real content of them.

17 JUDGE KARIBI WHYTE: Have you concluded your submission?

18 MR. TURONE: If your Honours agree, now I would like to go

19 through the items according to the list, starting from

20 the 1, and having the items submitted to the witness for

21 identification, if you allow me.

22 JUDGE KARIBI WHYTE: If he's in a position to identify

23 them, then he can do so.

24 MR. TURONE: All right. Thank you.

25 JUDGE KARIBI WHYTE: If he is in a position.

Page 3601

1 MR. TURONE: If he's not in the position, that will come

2 out, I suppose.

3 MR. GREAVES: Can I, before you do that, mention something

4 of a practical nature? I'm finding the temperature in

5 this room rather oppressive. I can see my learned

6 friend Ms McHenry has been fanning herself for about

7 twenty minutes. I know that Ms McMurrey is feeling

8 uncomfortable. I am finding the temperature in here

9 quite unpleasant, not for any reasons of hot air from

10 counsel.

11 JUDGE JAN: It's quite warm these days.

12 THE REGISTRAR: May I just say something about this? We

13 are working on it.

14 MR. GREAVES: I'm feeling uncomfortable and I'm not enjoying

15 sitting here at the moment.

16 JUDGE KARIBI WHYTE: How do you get the identification

17 done? By the person who properly made them up and the

18 person who can identify the tapes before the Tribunal.

19 MR. TURONE: In our submission, your Honour, this witness is

20 in a position to identify the items because of what he

21 did with the seized material and according to the

22 description he gave us of the work he has done on that

23 between March and April 1996. So if I'm allowed to go

24 on maybe after the break, since I understand that Ms.

25 McMurrey is not feeling good, I would ask to submit the

Page 3602

1 different items to Mr. Moerbauer for identification

2 purposes.

3 JUDGE JAN: The documents which he brought from the

4 premises?

5 MR. TURONE: The items which are listed in this index. The

6 documents --

7 JUDGE JAN: I believe at the police station immediately an

8 inventory was prepared.

9 JUDGE KARIBI WHYTE: Yes. So what they got from --

10 JUDGE JAN: He initialled those tapes. He initialled

11 those documents.

12 MR. TURONE: As we could list them --

13 JUDGE JAN: He can identify his initials and say: "This is

14 part of the documents that I bought from the residence

15 of the accused".

16 MR. TURONE: The position is if we are not wrong, the

17 witness is in a position to identify the documents and

18 the videotapes which were examined thoroughly by him

19 together with the interpreter as far as the written

20 documents are concerned.

21 JUDGE JAN: That is much later. It took him about ten

22 days doing that. As for the documents that were

23 brought to the police station, an inventory must have

24 been prepared.

25 MR. TURONE: Pardon? What?

Page 3603

1 JUDGE JAN: As soon as the documents were brought to the

2 police station, an inventory must have been prepared.

3 So on the basis of that inventory he can identify them.

4 MR. TURONE: Exactly. This inventory is the big report

5 numbered as document --

6 JUDGE JAN: That is much later. I'm talking about the day

7 when these documents were brought. Wasn't at that time

8 an inventory prepared? The report is much later.

9 MR. TURONE: The inventory is the one which was contained in

10 the search records, in the so-called Niederschrift.

11 JUDGE JAN: On the basis of that --

12 MR. TURONE: But the witness is probably in a position to

13 identify and recognise these documents through the work

14 he has done, examination and description of them.

15 JUDGE JAN: So are you suggesting no inventory was prepared

16 as soon as the documents were brought to the police

17 station? Are you suggesting that?

18 MR. TURONE: The inventory is the one contained in the

19 search records, but being seized --

20 JUDGE JAN: The copy of the search warrant, only 51 tapes

21 or 28 tapes, whatever it is.

22 MR. TURONE: The list contained in the search records was

23 done on the spot on the same day and inevitably very

24 quickly, and the real inventory of such a big amount of

25 material was decided by the Chief of the unit to be done

Page 3604

1 by Mr. Moerbauer in the following days, because it would

2 take a long time to do a real inventory. So we can

3 rely on the memory of Mr. Moerbauer just because he's

4 done a very long work of examination.

5 JUDGE KARIBI WHYTE: Don't take this for granted. You

6 don't rely on his memory whether, in fact, he took

7 things that day and from the places where he searched.

8 They are both relevant things, and those things which he

9 took from those places where he searched, and there was

10 a list done of those things. Whoever did that, those

11 are the things which we require for the purposes of

12 identification. You could see from your evidence that

13 the documents and the tapes kept on increasing.

14 MR. TURONE: Your Honour, the number of documents which were

15 seized is a very big number of documents and the listing

16 which was done in the search records the very day --

17 JUDGE KARIBI WHYTE: We are spending too much time

18 discussing things you have carried on without a lot of

19 progress. If he was a member of the team which removed

20 those things, let him identify those things which he

21 removed. That is a simple thing.

22 MR. TURONE: I beg your pardon.

23 JUDGE JAN: But there's another thing. These documents

24 were seized in response to a request made by foreign

25 authorities so far as the Austrian government was

Page 3605

1 concerned. Why was it necessary for the Austrian

2 government to prepare its own report and to examine

3 these documents? I have not asked the witness. Maybe

4 you can explain. I just want to find that out. It's

5 not necessary to ask the witness.

6 MR. TURONE: That was done by the Austrian laws and

7 according to the order of the investigating judge.

8 JUDGE JAN: I can well understand in Austria they want to

9 examine these documents and keep copies, but these

10 things have to be forwarded to a foreign tribunal or

11 authority. Why were they doing an examination of their

12 own and keeping copies of that?

13 MR. TURONE: Do you want me to ask this question to the

14 witness?

15 JUDGE JAN: No, I don't want you to.

16 JUDGE KARIBI WHYTE: Is it because you went before an

17 investigating magistrate, because they --

18 MR. TURONE: That is the procedure which is followed in --

19 according to the Austrian law, and I would say in all

20 civil law countries. These items, these documents,

21 these tapes were seized in the framework of an

22 extradition procedure according to Austrian law and from

23 the point of view of Austrian law, and the Austrian

24 authorities consider it necessary to have all these

25 documents described thoroughly, and the description --

Page 3606

1 the thorough description of these documents could not be

2 done in the very first day, and it took several days, as

3 the witness has explained to us. This was the

4 procedure requested by the investigating judge, Dr Seda,

5 according to the Austrian law.

6 JUDGE JAN: I can well understand to find out if a prima

7 facie case is made out before the extradition takes

8 place. Quite right. I can understand.

9 MR. TURONE: So may I proceed seeking identification of

10 these documents by the part of the witness, your

11 Honour?

12 JUDGE KARIBI WHYTE: Yes. Let's hear you.

13 MS. RESIDOVIC (in interpretation): Your Honours, I object

14 once again. In the testimony the witness said that he

15 was not in Mr. Zejnil Delalic's apartment when the

16 objects were confiscated. He was not in INDA-BAU when

17 those things were seized. He saw those things in a

18 sports bag. He spent one and a half months reviewing,

19 photocopying and so on. Before this witness is

20 cross-examined we cannot allow the identification of the

21 exhibits.

22 JUDGE JAN: At least he can testify that these documents

23 were in a black -- in a sports bag which he took from

24 the site to the police station. That is what he said.

25 MS. RESIDOVIC (in interpretation): He cannot, your Honour.

Page 3607

1 JUDGE JAN: Identify the documents -- what was in the

2 sports bag? Why not?

3 MR. MORAN: Your Honour, I think -- let me see if I can be

4 of help and put on my amicus hat, if I can. There were

5 seven searches conducted. This man obviously was not

6 at seven different places. I think he can testify

7 that: "I was at location X. I seized this. This is

8 the ones and they were under my control the whole

9 time". He can testify that: "Officer so-and-so gave me

10 these". He cannot say: "These were seized by officer

11 so-and-so pursuant to this search warrant", because he

12 doesn't know. All he knows is these things appeared on

13 his desk in the police station.

14 JUDGE JAN: No. He carried the sports bag from the site to

15 the police station in the same car.

16 MR. MORAN: Your Honour, yes, but that's --

17 JUDGE JAN: That's what I understand from his testimony.

18 MR. MORAN: As I understand it, there were several searches,

19 and some of these documents came from different

20 searches.

21 JUDGE JAN: We are only talking about the documents that

22 came from that particular premises -- what's its name?

23 INDA-BAU. We are not talking about documents that came

24 from somewhere else.

25 MR. MORAN: I got the impression from the Prosecution that

Page 3608

1 he was going to be testifying about documents seized

2 from all of these locations. I have no problem with

3 him testifying that: "I seized these documents from


5 JUDGE JAN: Or: "I brought the bag containing these

6 documents from the premises to the police station".

7 MR. MORAN: As long as we have the chain of custody from the

8 time they were seized to the police station, that is not

9 a problem. If these documents came from somewhere

10 else, he cannot testify they were part of the seizure.

11 Then we are going to have to go through each particular

12 document. Did this come from INDA-BAU where this

13 officer was? If not, then we go on to the next

14 document.

15 JUDGE JAN: Quite right.

16 JUDGE KARIBI WHYTE: I suppose the evidence is very clear.

17 He knows those ones of which he was responsible for the

18 seizure. It is only in those respects that he can

19 really testify.

20 MR. MORAN: I agree totally, your Honour.

21 JUDGE KARIBI WHYTE: But for the time being if he was in

22 custody at all of any document, he's entitled to give

23 evidence identifying those documents which were in his

24 custody.

25 MR. MORAN: At the time they were in his custody. He

Page 3609

1 cannot testify where they came from or any history to

2 them. He can just say: "On thus and such a date, on

3 19th March, I obtained custody of these".

4 JUDGE KARIBI WHYTE: That's the most he can say.

5 MR. MORAN: That is correct. We all agree on that,

6 I think, your Honours.

7 JUDGE KARIBI WHYTE: I'm sure he is not attempting to say

8 anything different. I know Ms Residovic is concerned

9 about the legality of the seizure itself.

10 JUDGE JAN: Admissibility.

11 MS. RESIDOVIC (in interpretation): Your Honours, I know

12 that the court will bear this in mind. I'm not

13 concerned. I just know that this witness did not

14 confiscate a single document in the apartment or in

15 INDA-BAU. This witness never went to INDA-BAU. He

16 can talk about some carton boxes in the police station

17 in which he may or may not have seen certain documents,

18 but he was not the one who seized those documents.

19 Therefore, he cannot be a witness identifying documents

20 confiscated from Mr. Delalic.

21 JUDGE JAN: Yes, if he was not on the site, all he can say

22 is: "These documents were at the police station". If he

23 has been at the search at INDA-BAU, or whatever the name

24 is --

25 THE INTERPRETER: Microphone, please, your Honour.

Page 3610

1 JUDGE JAN: I think he said INDA-BAU -- then, of course, he

2 can testify as to what he discovered from there.

3 MR. TURONE: If I may respond briefly, your Honour,

4 according to the testimony of this witness, and I would

5 say also Mr. Gschwendt, we have a complete chain of

6 custody without any link missing. We have this witness

7 -- we heard that this witness received directly from

8 Mr. Navrat all the materials seized in INDA-BAU, and had

9 it in his custody during the examination period, and

10 then the chain of custody continued without links

11 missing to the delivery to the court, and then we had

12 also the delivery from the court to this Tribunal. So

13 being no missing link in the chain of custody, I don't

14 see any problem with this witness to identify the items

15 which he has been examining thoroughly in a situation of

16 chain of custody without missing links.

17 MR. MORAN: Your Honour, maybe I'm being a little dense.

18 What I am used to in chain of custody is Officer A

19 saying: "I seized this kilogram of cocaine. I gave it

20 to Officer B". Officer B says: "I delivered it to the

21 laboratory for testing". Laboratory Technician C says:

22 "I got it from Officer B. I tested it and delivered

23 it to the property room". We seem to be missing the

24 first step: "I've got this kilogram of cocaine". It

25 seems to be missing some place, judge.

Page 3611

1 MR. TURONE: May I ask your Honours to allow me to give the

2 floor for a while to Ms. McHenry about an additional

3 argument?

4 MS. McHENRY: This is just one minute, your Honour.

5 I believe in this Tribunal your Honours can admit any

6 evidence if you find it reliable. There aren't

7 specific rules about hearsay or chain of custody or

8 anything. It's up to your Honours as to what you find

9 is reliable. If this witness explains in detail what

10 was the procedure for the search warrant, who went where

11 and what he received, including from other police

12 officers, and what they told him, it's up to your

13 Honours to believe if that's reliable. I'm very

14 familiar with systems where, for instance, one person is

15 in charge of categorising what is found by other

16 officers, and it's not always the case that every single

17 officer is necessary. Obviously if, after hearing this

18 witness and the arguments, your Honours feel they need

19 to hear other people in the chain of custody, such as

20 Mr. Navrat, we can do that, but I think this Tribunal

21 does not have all these technical rules such that your

22 Honours can make the decision about what you believe is

23 reliable and how things can move expeditiously. Your

24 Honours may decide that you need to hear every single

25 person who was in every single place, but I think it's

Page 3612

1 really up for your Honours and the circumstances, and

2 I believe that at least the Prosecution is entitled to

3 have this officer explain, as he has done, what the

4 procedure was, who was where, and where he received

5 items, including from Mr. Navrat and INDA-BAU. Then it

6 will be up for your Honours to determine if you believe

7 this officer and if the circumstances under which he

8 received the documents from Mr. Navrat are reliable.

9 Thank you.

10 JUDGE JAN: It's not a question of any technical rules of

11 evidence. We have to find out how Mr. Navrat obtained

12 the documents, where from he got them. It's not a

13 question of -- you know, we have to be sure that this

14 document -- there is no sort of a -- there's no

15 possibility of these documents having been introduced.

16 He received the documents but from where? From an

17 officer. The officer, where he got them is really

18 important.

19 MS. McHENRY: I agree with you it's not up to technical

20 rules. What's important is if your Honour feels it's

21 reliable. I think the Prosecution would submit in some

22 circumstances having this officer testify, for instance,

23 that Mr. Navrat gave him a box of documents and --

24 JUDGE JAN: You rely on that portion that he gave to him.

25 From where Mr. Navrat got is not something which he can

Page 3613

1 prove.

2 JUDGE KARIBI WHYTE: I think we've had enough. Let me

3 hear Mr. Ackerman and then I close discussion on this.

4 We know what to do.

5 MR. ACKERMAN: I think I have no choice but to rise and say

6 that I'm pained to hear what Ms McHenry has to say about

7 this Tribunal, especially considering that she comes

8 from the same legal system that I do. Yes, of course

9 we could do a lot of things more expediently. This

10 case would move along a lot faster if the defendants

11 were not permitted to have counsel. The rules that

12 require a chain of custody of evidence have been

13 developed over more than 200 years of experience, with

14 an understanding that you can't rely on it if you can't

15 have a proper chain of custody. For Miss McHenry to

16 stand up and say to this Tribunal, a world Tribunal,

17 that these are all technicalities and you should ignore

18 them just baffles me. This is a court of justice.

19 I have a great love for justice, and I know this court

20 is here to do justice, not to do the expedient thing.

21 I just want to state for the record that I'm offended by

22 that kind of remark coming from a fellow American.

23 JUDGE KARIBI WHYTE: I think we have had enough. When

24 we'll come back, we'll come back at 4.30, and then --

25 THE INTERPRETER: Microphone, please.

Page 3614

1 JUDGE KARIBI WHYTE: We will come back at 4.30 and carry

2 on.

3 (3.50 pm)

4 (Short break)

5 (4.35 pm)

6 JUDGE KARIBI WHYTE: Kindly invite the witness.

7 MS. McHENRY: Your Honour, before the witness appears, may

8 I just have a couple of minutes to respond to something

9 said at the end of -- right before the last break?

10 I believe, given what was said, that it is appropriate

11 that I respond briefly.

12 In particular, I'm responding to the comments of

13 my learned colleague, Mr. Ackerman. I resent the

14 continued attacks on the personal integrity of

15 Prosecution attorneys, including myself.

16 I respectfully submit that such personal attacks are

17 unprofessional and in some cases even unethical, and

18 I would ask the Trial Chamber in the future to stop such

19 attacks. I am not representing any particular country

20 or system. Here, as in my work in the United States,

21 I work for justice, as do my colleagues here from the

22 civil law system. I also state that the comments were

23 an attack on the civil law system also, which my

24 colleagues wish me to stress is over 2000 years old.

25 I finally note that there is nothing improper

Page 3615

1 about suggesting that this Chamber can itself make

2 determinations about what may or may not be admissible

3 and what may or may not be reliable or fairly

4 admitted. Thank you for the opportunity to respond.

5 JUDGE KARIBI WHYTE: Thank you very much. Frankly

6 I expect counsel generally to be professional and add

7 less trouble to us instead of increasing what we already

8 have. I do not enjoy any iota of disagreement among

9 counsel or counsel and the Trial Chamber. It just does

10 not do anyone any good. I expect as colleagues and as

11 professional colleagues that everything said should

12 relate entirely to the proceedings and in good faith.

13 I'm sure we will not have a repeat of these things any

14 longer. Let us have the witness.

15 (Witness re-entered court)

16 (Interpreter re-entered court)

17 JUDGE KARIBI WHYTE: Yes. Let's continue.

18 MR. TURONE: Thank you, your Honour. May I ask the

19 Registrar to provide the witness then with the binder

20 with the original documents for the purposes of

21 identification please, as I say, 47 items which are

22 numbered 1-47, and as official Exhibit Number 104-148.

23 Of course, the original videotapes are not materially

24 included in these binders, and we'll show them to the

25 witness at an appropriate time.

Page 3616

1 So, Mr. Moerbauer, may I draw your attention to the

2 first document included in the binder? It is a pretty

3 long document written in German language, which is

4 number 104, marked as number 104 for identifying

5 purposes. It is the first document in the binder.

6 Mr. Moerbauer, can you identify this document?

7 A. The first document that I see here is a report from the

8 Vienna police to the Vienna District Court.

9 Q. Is this then your final report containing the

10 description of the seized material?

11 A. Excuse me, sir. Is this the right one?

12 Q. The first exhibit, numbered as Exhibit Number 104.

13 That's an index actually.

14 A. You have the final report, the analysis of the seized

15 tapes and documents, and the report was made on 24th

16 April, with a summary for the court concerning a summary

17 of the content. That is a report containing the

18 summary of the content of the seized items.

19 Q. Mr. Moerbauer, I see that this final report contains 71

20 pages in the German language original, but the pages are

21 not numbered from 1-71. Actually it seems to be

22 subdivided into many subsections, and the pages of each

23 subsection are autonomously numbered. I would ask you

24 why didn't you number this big report from page 1 to

25 page 71?

Page 3617

1 JUDGE JAN: Just a minute. "Autonomously", what would

2 that mean?

3 MR. TURONE: I would say every single subsection has page

4 numbers 1-3, 1-5, etc, and the general page number then

5 is not entirely 1 until 71. I wanted to ask the

6 witness: why didn't you number this big paper from page

7 1 to page 71?

8 A. At police headquarters we did not number all

9 documents. Each report has its own number system and

10 the continuation of the numbering was carried out by the

11 courts. A report is made and in addition to the report

12 the analyses are added. So they are annexes to the

13 reports, and the reports are classified on a

14 chronological basis by ourselves. That is the order in

15 which they are transferred to the court.

16 Q. Do you recognise your signature in this report; I mean

17 in the different subsections of this report?

18 A. Yes, I do.

19 Q. Can you say briefly how did you classify the seized

20 items in your report? I mean with which initials and

21 which numbering system?

22 A. The seized items were once again classified under "I"

23 for INDA-BAU; "D" for Taubergasse 15, Door 14; and "M"

24 for Taubergasse 15, Door Number 10.

25 Q. Is the number for the original seized folders reflected

Page 3618

1 in your classifying system?

2 A. The numbering system used in the report was used from

3 the beginning for the seized items, and it corresponds

4 to what is in the final report.

5 Q. So it is the same system you were talking about in one

6 of the previous questions; is that correct?

7 A. Yes, that is correct.

8 Q. In your report you often used the heading "Ausvertung".

9 What do you mean with this word?

10 A. "Ausvertung" is basically a report on the items, that is

11 the content of the documents. So we describe what is

12 transferred to the court and we have seized items, and

13 if these items are required, then the person concerned

14 who has a claim to this can turn to the investigating

15 magistrate and can say in the analysis whether this is

16 of use for the trial of the proceedings or whether they

17 can be returned.

18 Q. So can you now look at the second document included in

19 the binder, which is number 105 for identification

20 purposes? The second document included in the binder,

21 number 105. That's to say the item number 2 of the

22 binder, after the big report included in the binder.

23 Did you find it, Mr. Moerbauer? Would the Registrar

24 check whether the binders correspond to the index of the

25 document? Probably in the binder you find the English

Page 3619

1 translation too of document 105 or the first document.

2 So I would like you to go to the second item, which is

3 number 105. Did you find that document? Can you

4 identify this document?

5 A. It's a Yugoslav passport and it was located at

6 Taubergasse 15, Door 10, the apartment of Mr. Mucic.

7 Q. Can you find the mention of this document in your

8 report?

9 A. Just for reasons of simplification, I have a binder here

10 where I have this system listed, and it would be easier

11 for me to locate the same things in this folder.

12 I have made an additional index where I can flick to

13 things more quickly. Maybe I could use this, if you

14 would allow.

15 MR. TURONE: I ask your Honours to allow the witness to

16 consult his own notes and material.


18 MR. TURONE: Yes, please.

19 A. In the report -- this is contained in the report on 22nd

20 April 1996 concerning Mr. Zdravko Mucic and the search in

21 Austria 17 (sic), Taubergasse 15, Doors 10 and 14. In

22 this report -- oh, excuse me. The report of 22nd

23 April, Taubergasse 15, Door 10, under M6 of the

24 classified items we classified this passport, M6.

25 Q. Can you say briefly how is this document identified in

Page 3620

1 your report?

2 A. On page 2 of this report it is described. It was a

3 Yugoslav passport with the number BH 978394, which was

4 issued in the name of Zdravko Mucic.

5 Q. Thank you very much. For the convenience of your

6 Honours and the defence counsel, I will say that the

7 English translation of the big report, so the English

8 translation numbered as document 104A, has a continuous

9 page numbering, and the page mentioned by the witness

10 now corresponds to page 4 of the English translation.

11 Now may I ask you, Mr. Moerbauer, to go back to the

12 binder of the original items, and can you now look at

13 the third document included in the binder, which is

14 document 106, marked as 106 for the purposes of

15 identification, the third document in the binder?

16 A. This is once again a Yugoslav passport issued in the

17 name of Zdravko Mucic, registration number BHR number

18 592332 and this passport was also classified as M6

19 amongst the seized items, and it is contained in the

20 same report as the first item that I mentioned before.

21 So this passport is listed -- is given, described in the

22 same place.

23 Q. The same page?

24 A. It is --

25 Q. All right.

Page 3621

1 A. Yes, on the same page.

2 Q. Thank you. May I now ask you to look at the third --

3 I mean at the fourth document included in the binder,

4 which is the document marked for identification with

5 number 107? Can you identify this document?

6 A. This document was also found in the apartment of Zdravko

7 Mucic. It was found -- was classified under the number

8 M6 and described as such in the report, and this is on

9 page 2 of the report of 22nd April 1996, concerning the

10 items seized from Taubergasse Number 15, Door 10.

11 Q. So again on the same page of the report?

12 A. On the same page of the report.

13 Q. Is that described with some particular word?

14 A. It was given under M6.

15 Q. But how is it defined in the report?

16 A. It's in the report -- it's stated: "Identity card in

17 plastic wrap".

18 Q. Thank you.

19 A. In the report it is stated: "Two identity cards in

20 plastic wrap".

21 Q. Thank you. Could you now look at the fifth document

22 included in the binder, which is marked for

23 identification with number 108? Can you identify this

24 document?

25 A. Now in the report it says that this was secured in the

Page 3622

1 apartment Taubergasse 15, Door 10, and that was in the

2 M6 folder. That went to the court, and this is one of

3 the two identification cards in plastic wrap.

4 Q. Thank you. Now I will ask the Registry to provide the

5 witness with the four videotapes, which were numbered

6 for identification as 109, 110, 111 and 112. I will

7 tell the witness that he can skip what appears in the

8 binder concerning these videos, because they are simply

9 the English transcripts of the videos. That's not

10 useful for identification purposes. You can see that

11 these are four videotapes and, Mr. Moerbauer, I ask you

12 whether you can recognise for the moment these four

13 videotapes for their external appearance and for the

14 labels which appear on them?

15 A. This videotape, or I should say the cover, has the

16 number "M1A", and on that basis stems from Zdravko

17 Mucic's apartment, according to the label on the case.

18 Q. Yes. Can you look at the other ones?

19 A. There's a sticker on here and on the cassette there's

20 the number "M1A", so that is on the cassette itself,

21 that reference. So this is from Zdravko Mucic's

22 apartment.

23 Q. Thank you. What about the second videotape?

24 A. Here again "M1B", both the tape and the case, and

25 therefore stem from the apartment of Mucic.

Page 3623

1 Q. Thank you. You see then the third tape?

2 A. This tape is referred the same way, both the tape and

3 the cover, "M1C", and also stems from Zdravko Mucic's

4 apartment.

5 Q. Thank you. The fourth one?

6 A. This videotape is lettered "M1D" and that's the same

7 address, Taubergasse 15, 10.

8 Q. So again the apartment of Mr. Mucic?

9 A. Yes, the apartment of Mucic.

10 Q. Now can you find the mention of these four videotapes in

11 your report?

12 A. These videotapes are mentioned in the report of 22nd

13 April 1996 regarding Zdravko Mucic and the search of

14 1170 Vienna, Taubergasse 15/Door 10. This is on the

15 first page there regarding the analysis and here's

16 mentioned the individual tapes with a description of the

17 contents.

18 Q. Again for the convenience of your Honours and the

19 defence lawyers, may I say that this page corresponds to

20 page 5 and page 6 of the English translation of the

21 final report.

22 Now, Mr. Moerbauer, could you further recognise and

23 identify these tapes if you should see them played in

24 part?

25 A. On the basis of the contents I could recognise the

Page 3624

1 videos. I know pretty much what's in those or on those

2 tapes, but were I to see all of them, I couldn't say

3 whether it came from INDA-BAU or from Mucic. With the

4 report I could compare and that way I could ascertain

5 that it was the videotape that was seized and is

6 mentioned in the report.

7 Q. So may I invite the technicians to play the excerpt

8 video concerning the first videotape?

9 MR. MORAN: Judge, I object to playing something that's not

10 in evidence.

11 MR. TURONE: For identification purposes again.

12 JUDGE KARIBI WHYTE: Has he not identified it by its

13 numbering or whatever mark he made on it?

14 MR. TURONE: If your Honours and the defence lawyers deem

15 that this identification is sufficient, and there is a

16 kind of a stipulation on that, we do not object.

17 JUDGE KARIBI WHYTE: When they were numbered individually,

18 they did not play it, did they?

19 MR. TURONE: I beg your pardon?

20 JUDGE KARIBI WHYTE: At the time the videos were collected

21 from the accused persons, they were not played. They

22 must have been played in their station.

23 MR. TURONE: Yes, they were played during his examination in

24 the police headquarters.

25 JUDGE KARIBI WHYTE: Yes, but that is after you had removed

Page 3625

1 them from the premises from where they took them. So

2 the identifying mark which you made at the time you took

3 it is the relevant thing, not whether you played it or

4 not.

5 MR. TURONE: All right. Then we accept that the videotapes

6 were identified the way we are doing and we proceed to

7 the next items, your Honours. I'm sorry.

8 MR. MORAN: Your Honour, just so the record is clear, we are

9 not waiving any kind of objections. I thought we were

10 going to take objections at the end of all these when he

11 offered them into evidence.

12 MR. OLUJIC (in interpretation): Your Honours, if I may be

13 allowed.


15 MR. OLUJIC (in interpretation): We should like to object

16 along those lines. What I said at the beginning, the

17 witness could simply state his views regarding

18 authenticity. All objections will come later. So let

19 there be no confusion. Yes, the object was identified

20 and nothing more, not the contents, nor anything else.

21 MR. TURONE: So this is the situation, your Honours. We

22 believe that we should allow the witness to see at least

23 a small part of the tapes until he might say something

24 about his being in a position to identify also the

25 interior, the internal part of the tape and not only the

Page 3626

1 external appearance. So again I would ask the

2 technicians to play at least a part of the tapes, a few

3 minutes of the tape, until the witness can say "yes" or

4 "no" on his possibility of identifying these items not

5 only for the paper external appearance but only for

6 their content following to the thoroughly examination he

7 did between March and April 1996.

8 MR. MORAN: Your Honour, he has already testified that he

9 could look at the tapes and say: "I know these were some

10 of the tapes but I couldn't tell you without looking at

11 the paper stickers where they came from". He's

12 testifying that this was seized from a location based

13 upon the paper stickers on the outside of the objects.

14 JUDGE JAN: There's just one small point. You said there

15 was miscounting of the videotapes. Actually there were

16 54 and not 51.

17 MR. TURONE: Your Honour, these four videotapes --

18 JUDGE JAN: I'm just talking about another point

19 altogether. Look at your annexure 1A. At the end

20 there is a report by Panzer and this witness. Page 3

21 of this report talks of 83 video cassettes seized, 54

22 from INDA-BAU, 28 from Delalic's flat and 4 from

23 Mucic's. The number comes to 86. You said 83. So

24 there's a discrepancy of three. There was again a

25 miscounting or what? If the number is 51, then, of

Page 3627

1 course, it will add up to 83, but here -- this is 1A,

2 page 3 of the translation. Have you got it? Have you

3 got these figures?

4 MR. TURONE: Yes, we've found this.

5 JUDGE JAN: You get 83.

6 MR. TURONE: Yes, you will.

7 JUDGE JAN: Actually if you count 54, plus 28, plus 4, it

8 comes to 86. There is a discrepancy of three again.

9 MR. TURONE: You will see the same mistake is in the

10 original. Can you explain something about that,

11 Mr. Moerbauer?

12 JUDGE JAN: The report is signed by this witness along with

13 Panzer. Are you sure it was 54?

14 A. Yes, a counting mistake.

15 JUDGE JAN: Here again if you add 54, plus 28, plus 4, it

16 comes to 86, but you see the figure 83 which was

17 seized. Are you sure it was 51, not 54?

18 A. On page 1 it says 86 videotapes.

19 JUDGE JAN: I'm just looking at the translation of the

20 report.

21 A. In the same report --

22 JUDGE JAN: I'm just looking at the English translation of

23 your report. It's at 1A. Maybe it's a typing mistake,

24 because I don't understand German. I can't read

25 German. Have you noticed this discrepancy?

Page 3628

1 MR. TURONE: Yes, your Honour. The witness says that on

2 another page he says the right number, 86. On which

3 page?

4 JUDGE KARIBI WHYTE: Let's not behave like children here,

5 if there has been an analysing error. You are

6 proceeding with getting him to identify the cassettes.

7 Let's go on and deal with that. He has seen those

8 cassettes. It is not plain that he identified them.

9 If they had any marks on them, let him tell us what

10 marks he made on them which enabled him to identify them

11 when he took them from those places where he seized

12 them.

13 MR. TURONE: Mr. Moerbauer, on these four videotapes there

14 are marks. What marks did you make on these video

15 cassettes which enable you to identify them as the ones

16 you took from the apartment of Mucic?

17 A. Well, with regard to these four tapes that were secured

18 in Mucic's apartment, these were the first videos that

19 were numbered the same day. The other tapes were not

20 numbered, and these were the first video tapes that were

21 copied. The copies were handed over to the Tribunal.

22 So these are the four videotapes that I've seen the most

23 of, because I saw the whole of them while they were

24 being played, and it would not have been possible to mix

25 these up, because the other tapes were given a

Page 3629

1 consecutive number later on. They just got a number

2 and they didn't get the additional letter. We decided

3 on that later, that we wouldn't put any letters on the

4 tapes, but here we do have a letter, because these are

5 the first ones we looked at.

6 Q. So did you recognise the stickers and markings on the

7 four videotapes you just looked at?

8 A. These are the references put on them by Panzer.

9 Q. All right. Now --

10 JUDGE KARIBI WHYTE: Is Panzer coming to give evidence?

11 MR. TURONE: Your Honours, if the court deems that useful,

12 certainly we will have other police officers from the

13 Vienna police to come and testify in the future of this

14 trial.

15 JUDGE KARIBI WHYTE: Because it was him who secured these

16 tapes.

17 MR. TURONE: I see what you mean. So we'll be -- we will

18 certainly be in a position to call Mr. Panzer, Mr. Navrat

19 and possibly other police officers. Mr. Moerbauer, did

20 you see the stickers put on these four videotapes by

21 Mr. Panzer?

22 A. I can't remember that.

23 Q. All right. May I ask you, Mr. Moerbauer, to look at the

24 document following the transcript of the four videotapes

25 in the binder of the original, that is to say document

Page 3630

1 number 10 in the binder, which is marked for

2 identification as document 113? Can you find this

3 document?

4 A. Number 117?

5 Q. No, 113.

6 A. 13.

7 Q. According to the marking done of the Registrar today.

8 MR. GREAVES: Your Honour, I'm sorry to disturb the peace of

9 my learned friend's examination-in-chief. I think

10 there is a witness in the public gallery, who is a

11 potential witness for the Prosecution on this issue of

12 continuity, who should not be there, Sabine Manke.

13 JUDGE KARIBI WHYTE: Is one of your witnesses still

14 sitting?

15 MR. TURONE: Probably we didn't plan to call her again, but

16 anyway --

17 MR. GREAVES: The Prosecution has been mentioning a number

18 of other people they might want to be calling on this

19 issue of continuity. As a matter of safety first she

20 should not be in the public gallery.

21 JUDGE KARIBI WHYTE: In the interests of caution she had

22 better not be.

23 MR. TURONE: I think it is good for her to be invited to

24 leave the courtroom, court gallery. She left

25 immediately.

Page 3631

1 MR. GREAVES: Thank you.

2 A. Now document 113, according to the index, D4/3 is the

3 reference we put on that, D4/3.

4 MR. TURONE: Can you identify that and say where was it

5 seized?

6 A. Now this document was among the items seized at

7 Taubergasse 15, Door 10, and it was in the folder that's

8 D4, and that was on the third page there. It was the

9 third document to be examined.

10 Q. But in which premises was that seized?

11 MS. RESIDOVIC (in interpretation): An objection, your

12 Honour.

13 A. It was not secured by me.

14 JUDGE KARIBI WHYTE: Hold on. Let's hear the objection.

15 Yes, let's hear it.

16 MS. RESIDOVIC (in interpretation): The witness has

17 testified that he did not seize objects in the

18 Taubergasse apartment. He's not a person that can

19 identify the confiscated objects and therefore this

20 object too.

21 MR. TURONE: May I respond, your Honour?

22 JUDGE KARIBI WHYTE: Well, let's hear you. Let's hear

23 your response.

24 MR. TURONE: In our submission this particular document can

25 be identified also by this witness, because anyway this

Page 3632

1 is the witness who made the thoroughly examination of

2 all the seized documents. Of course, as I already

3 said, the Prosecution is accepting the idea of calling

4 as witnesses also the police officers, the Vienna police

5 who carried on the different investigations, the

6 different house searches, but in any case nothing denies

7 the possibility that a document might be identified by

8 more than one witness according to what each one of them

9 has done in his official capacity concerning a given

10 document. This witness concerning this document did an

11 examination with the interpreter, as he did that

12 examination on the other documents. So, in our

13 submission, these documents which he examined thoroughly

14 might be identified both through him and through any

15 other person, including the officer who took part in the

16 house search in the apartment of Mr. Delalic. On the

17 other hand, we would --

18 JUDGE KARIBI WHYTE: We have had that twice now. I think

19 it is all right. You've repeated the same thing

20 twice. You have said since he did some work on the

21 documents, he can identify it. Now, as long as there

22 is a person who actually seized the document and he is

23 coming to give evidence, it is unnecessary multiplying

24 the number of people who identify these documents. So

25 I do not think it is necessary to put any document to

Page 3633

1 him to identify something which another witness is

2 coming to identify. So it's not necessary. I agree

3 with the objection.

4 JUDGE JAN: He examined the documents all right, but seized

5 where? It's only the person who seized them can say.

6 MR. TURONE: I see the point, your Honours, but the person

7 who received the documents seized --

8 JUDGE KARIBI WHYTE: I've made the ruling, so find something

9 else to say.

10 MR. TURONE: All right, your Honour. We would ask the

11 Registrar to provide the witness with the four -- with

12 the three videotapes, unless, being 5.30 --

13 JUDGE KARIBI WHYTE: Yes, it is 5.30. Perhaps it might be

14 better for you go home, look at your case properly and

15 know how to introduce the evidence. One has been a

16 little patient listening to a lot of confusion here and

17 I don't enjoy it at all. So please kindly look at your

18 case properly and bring those who you know actually

19 seized these documents so that they'll identify them

20 properly in accordance with the procedure of identifying

21 documents.

22 MR. ACKERMAN: Your Honours, first of all, if any member of

23 the prosecution staff was offended by my remarks prior

24 to the last break, I want to extend my apologies.

25 I hold all of them in very, very high regard.

Page 3634

1 I consider them colleagues of the highest professional

2 standing, and if the court was offended in any way by

3 those remarks, I want to apologise also.

4 Secondly, I would like to ask the Prosecution to

5 give us the list of witnesses they would expect to be

6 calling next week, so that we can have the weekend to

7 prepare. Thank you.

8 JUDGE KARIBI WHYTE: Thank you very much, Mr. Ackerman.

9 I think that is the real professional way of dealing

10 with little disagreements of this nature, and I'm sure

11 Ms. McHenry accepts the apology.

12 MS. McHENRY: Thank you very much. Of course, your

13 Honour.

14 JUDGE KARIBI WHYTE: The Trial Chamber will now rise.

15 (5.30 pm)

16 (Hearing adjourned until 10.00 on Monday morning)

17 --ooOoo--