1 Thursday, 6th November 1997
2 (10.00 am)
3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.
4 Can we have the appearances?
5 MR.. NIEMANN: If your Honour pleases, my name is Niemann and
6 I appear with my colleagues Mr. Turone, Ms. McHenry and
7 Mr. Khan for the Prosecution.
8 JUDGE KARIBI-WHYTE: Can we have the Defence appearances?
9 MS. RESIDOVIC: Good morning, your Honours, I am Edina
10 Residovic, Defence counsel for Mr. Zejnil Delalic, along
11 with my colleague, Mr. Eugene O'Sullivan, professor from
12 Canada. Thank you.
13 MR.. OLUJIC: Good morning, your Honours, I am Zeljko Olujic,
14 Defence counsel for Mr. Zdravko Mucic, along with my
15 colleague, Michael Greaves.
16 MR.. KARABDIC: Good morning, your Honours, I am Salih
17 Karabdic, attorney from Sarajevo, Defence counsel for
18 Mr. Hazim Delic, along with Mr. Thomas Moran, attorney
19 from Houston, Texas.
20 MR. ACKERMAN: Good morning, your Honours, I am John
21 Ackerman. Cynthia McMurrey and I appear here today on
22 behalf of Mr. Esad Landzo. Thank you very much.
23 JUDGE KARIBI-WHYTE: Thank you very much. I am very sad to
24 announce this morning on behalf of the Tribunal as a
25 whole and members of the Trial Chamber the passing away
1 yesterday night of Judge Li, one of the judges of this
2 Tribunal, at the age of 91. His age has not been of any
3 effect to his excellent performance. At 91, his
4 thinking is as clear as when he first did his degree in
5 1922. He is one of the most energetic human beings
6 I have come across. He has been with us all along, he
7 is a foundation member of the Tribunal, and was all
8 through the formulation of the Rules and in every aspect
9 of the regulations, a participant in almost all the
10 committees set up for considering all of the regulations
11 we are using in this Tribunal.
12 Incidentally, he is not -- he did not seek
13 re-election, he had decided not to continue, but suddenly
14 he got ill and was in a local hospital here. The last
15 information we heard was that he was recovering and
16 things were going fine, but all of a sudden, this
17 morning when I came to work, I got information that he
18 had died. In certain respects, for people of that age,
19 it is not too surprising, but in contrast, a person of
20 his energy and willingness to work and assist, it is a
21 little surprising. We will hear a few things: he used
22 to exercise every morning, take a cold bath, so in every
23 respect he was much fitter than his age, but
24 unfortunately this is what has happened to us.
25 We miss him very, very dearly, even if he has to
1 leave us in this way. We knew he would, but at least
2 while he was with us, he was a very close friend, very
3 good companion and helpful in every way in which a
4 colleague can be helpful. I should inform the Trial
5 Chamber and the participants here of our sorrow this
6 morning. He has his family here, and we hope every
7 arrangement might be made to enable them to get back to
9 The Trial Chamber would wish us to have at least a
10 minute's silence in his honour before we continue the
11 deliberations of this morning.
12 May this gentleman so rest in perfect peace.
13 MR. NIEMANN: On behalf of the Prosecution, we would also
14 wish to express our condolences in the very sad
15 departure of Judge Li. We knew of him fondly as a great
16 jurist, a man of great skill and dedication to the rule
17 of law, and to ensure that all parties accused would
18 receive a fair and just trial. His untimely departure
19 is indeed sad.
20 JUDGE KARIBI-WHYTE: Thank you very much.
21 MR. MORAN: Your Honour, while I never had Judge Li, I did
22 see him around and I read his opinions, which I think
23 are -- they are such well written opinions, well thought
24 out opinions and to see him in the condition -- physical
25 condition at age 91, it is amazing. He was an amazing
1 person and a great jurist and I think on behalf of all
2 of the Defence we wish his family well and give them our
3 personal condolences.
4 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Moran.
5 MR. ACKERMAN: Your Honour, I just want to say that your
6 announcement this morning reminds us all once again,
7 I think, of the transitory nature of this life and how
8 at any moment it is unpredictable. Our life will be
9 judged. Without further ado, I know that those who knew
10 Judge Li well will miss him a great deal. I think all
11 of us as we sit here this morning would wish that we
12 could have the long life that he had and maintain the
13 pure brilliance that he maintained through all of his 91
14 years. Thank you.
15 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Ackerman.
16 Yes, Mr. Niemann?
17 MR. NIEMANN: Yes, your Honours. Your Honours, my submission
18 will be complete, I hope, in about 30 minutes. I have
19 not much more to say in relation to these matters.
20 We have considered the remarks of your Honours in
21 relation to the question of the miscounting of the
22 videotapes. I have certain parts of the transcript that
23 I can take your Honours to, which I wish to take
24 your Honours to, in relation to this question, where it
25 was raised and what was said about it. I think that
1 helps in some clarification of the issue.
2 We have an additional basis upon which we would
3 argue renders these documents admissible, apart from the
4 fact that they are found on the premises. They were
5 shown to certain people who we would say would be in a
6 position to authenticate them and they then could be
7 tendered on that basis, having regard to the fact that
8 one of the exhibits, already an exhibit of General
9 Pasalic, has already been admitted on that basis. It
10 would be on the two bases I think -- when I take
11 your Honours to the transcript, which I will do now,
12 I think any need to call any further evidence would be
13 obviated by that. I do not think we can actually take
14 it any further. I think we have reached the point where
15 not much more can be said about it than what was done.
16 If I may, firstly in relation to the evidence of
17 the witness Moerbauer, in his evidence-in-chief, he was
18 asked by my learned colleague Mr. Turone about this on
19 page 3558, line 16 of the transcript, on the first
20 occasion. My colleague asked the question:
21 "Were there any videotapes among the INDA-BAU
23 Answer: Yes, a large number of videotapes were
25 Question: As far as you can remember, how many
1 videotapes were seized in the INDA-BAU premises?
2 Answer: About 50 videotapes. There were a few
3 problems and apparently there was a miscount, but
4 roughly 50, 51. It said 51 and then it turned out to be
6 Mr. Turone then went on on page 3559 to ask the
8 "So you have been saying about some mistakes in
9 the counting of the videotapes. What kind of a mistake
10 in the counting of the videotapes took place? When was
11 it corrected, if at any time? Can you explain this
13 Answer: Well, on the basis of the
14 file Taubergasse 15, Door 10, I think in that instance,
15 it was corrected right away. That was noted into the
16 record, by the way."
17 Your Honours will know that we are not tendering
18 any videotapes or material from that address. He then
19 goes on:
20 "With regard to the INDA-BAU, that was corrected
22 Then later on in the transcript, in the
23 cross-examination of the witness Moerbauer by
24 Madam Residovic, she said to him:
25 "Mr. Moerbauer, is it correct that in some reports,
1 the Bericht or information of seized documents you noted
2 contained errors recording the number of seized
4 The witness then answered in very similar terms:
5 "Concerning the number of seized videotapes, the
6 first note of items seized from Taubergasse 15, Door 14,
7 the first error was discovered by a colleague and was
8 corrected, and the seized videotapes from Koppstrasse 14
9 [the INDA-BAU premises] were discovered and marked. The
10 error was realised at a later stage and was noted by me
11 in a report."
12 Again in cross-examination of the witness, the
13 witness says at page 3724, line 6:
14 "The videotapes from the INDA-BAU company, there
15 were always 54 of them. There were apparently 54 of
16 them. They were only counted later and they were
17 marked. With regard to a reference to them and giving
18 them a name, that only happened later in the course of
20 Then Moerbauer was asked:
21 "Mr. Moerbauer, I am looking at the second page of
22 the Niederschrift from INDA-BAU and to me it is obvious
23 that it states 51 cassettes. What I am interested in
24 is: which three cassettes did you find later and what
25 are the names of these cassettes, can you tell me that?
1 Answer: In the box, there was apparently always
2 those 54 videotapes, but after hand-over, they were not
3 counted. It was when we had labelled them consecutively
4 that we realised that there were 54 and not 51. Now
5 they were not given a name at once, it was only in the
6 coarse of one and a half to two weeks of analysis that
7 the contents of the videotapes was indicated in a
8 report, along with the contents, along with the
10 Again in cross-examination of the witness
11 Moerbauer, he is asked again about this question, and he
12 says at page 3740 at line 11:
13 "At INDA-BAU, 51, according to the record, were
14 found there, and in fact we found that there were really
15 54 videotapes there. Now it is the original record we
16 did not refer to the individual tapes by name."
17 So, your Honours, that is the evidence of the
18 witness Moerbauer in relation to that question. In
19 relation to the witness --
20 JUDGE KARIBI-WHYTE: How did you understand all this you
21 have read out?
22 MR. NIEMANN: How did I understand it? The state of the
23 evidence, your Honour, from that witness at least, is
24 this: that he admits there was a mistake, it was one of
25 the questions that Judge Jan asked me yesterday, why was
1 it not put to him.
2 THE INTERPRETER: Microphone please.
3 MR. NIEMANN: It was put to one of the witnesses.
4 JUDGE JAN: It is Navrat who made the recoveries, who
5 counted them. I was just referring to the evidence of
6 Navrat, not to Moerbauer. He saw these tapes much
8 MR. NIEMANN: In relation to the witness Navrat, he says, at
9 page 5705 of the transcript, in cross-examination:
10 "We have gone from 51 to 54 videos, correct?
11 Answer: That is right.
12 Question: That is a discrepancy of three,
14 Answer: That is right.
15 Question: One possibility is that three videos
16 were added to the original 51; you would accept that
17 possibility, would you not?
18 Answer: Everything is possible, but I have a
19 tough time imagining that.
20 Question: Another possibility is that we were
21 dealing with 54 different videos from the ones that came
22 from INDA-BAU?
23 Answer: That is not right.
24 Question: They were not marked, the containers
25 were not marked, it was not sealed; you accept the
1 possibility, do you not?
2 Answer: I can rule out the possibility."
3 I think that is a misprint, it should be cannot
4 rule out the possibility:
5 "In fact, the cardboard box which left INDA-BAU
6 may not be the same one that arrived at police
7 headquarters because it was not marked either.
8 Judge Karibi-Whyte: He did say it was in his
9 custody until he brought it into police headquarters."
10 Next question:
11 "We know for sure that the number of the videos
12 inside the box changed, do we not, between the time -- ?
13 Answer: That is right.
14 Question: Maybe your colleagues were looking
15 through a different cardboard box?
16 Answer: I have a tough time imagining that.
17 Question: If the videotapes changed, perhaps the
18 documents changed too, between the time you brought it
19 and the time your colleagues examined it.
20 Judge Jan: Why do you not leave that for argument
21 stage, instead of putting it to the witness?"
22 So, your Honours, in terms of what the witnesses
23 can tell us about the matter, I would not think that
24 there is much more that can be said. I think they have
25 said all that there is and I think the position clearly
1 is that they are saying, they are asserting that the
2 original number was 54, it was always 54 that was seized
3 by Navrat, that there was a miscounting at the time of
4 the search, instead of counting 54 there was 51, and
5 that that was subsequently discovered some days later
6 and corrected. I think that emerges clearly from the
7 transcript as to what their position is, so I do not
8 think we would be much assisted from hearing further
9 from them on the point. I think that is as much as they
10 can tell us.
11 There was, however, in our submission, a further
12 basis on which these videos can be tendered. In our
13 submission, the evidence is the evidence and we cannot
14 take it any further than to say to you that the state of
15 the evidence in relation to the confusion on numbers is
16 as clear as it can be, and that there is a discrepancy
17 and any other explanation given will not advance the
18 matter any further. If that is a matter which is of
19 considerable concern to your Honours, I could make
20 further submissions on it as such, but I think that
21 perhaps the issue can be resolved in a different way.
22 I would submit that the mix-up in numbers is
23 understandable, it is a matter of human error. It is
24 unfortunate, certainly there is no question it could
25 have been done better, but I do not think there is any
1 concern that anyone has substituted videos, made them up
2 or anything of that sort. I rely on the fact that in
3 many ways the Austrian police were largely disinterested
4 in the outcome as such, because they knew this case was
5 something that was going to The Hague, it was not their
6 end result, so it seems to me they would have no motive
7 either way. It may be an explanation why not as much
8 care was taken as may have been desirable in the
9 circumstances, but in my submission, that should not
10 affect the admissibility of the documents, because they
11 are quite firm in their evidence that the material
12 seized was in their custody from the time of seizure to
13 the time it was taken to police headquarters, and then
14 it was subsequently recorded and the error was made.
15 It is not the first time these sorts of errors are
16 made in search and seizure operations. They are always
17 difficult matters, but in my submission there is nothing
18 sinister about what happened which would justify an
19 exclusion of the evidence on that basis.
20 However, your Honours, with the first Exhibit I25,
21 I do not know whether your Honours have the extracts of
22 that. This is a video of an interview that took place
23 during 1992 between the witness who appeared here,
24 Divjak, a gentleman of the name Karic, and the accused
25 Zejnil Delalic. There are significant portions of it
1 which relate to the parts where the witness Divjak
2 participates in the interview, and there are parts of it
3 where the witness Delalic speaks on the video in
4 response to questions put to him by a journalist.
5 Your Honours, my colleague Ms McHenry played
6 portions of this video to the witness Divjak, and I will
7 just take your Honours to the transcript where that
8 happens and relate the significant parts of it, which we
9 submit goes to establish its authenticity, reliability
10 and therefore rendering it a document that should be
11 admitted into evidence.
12 At page 8465 of the transcript, at line 7,
13 Ms McHenry says to the witness Divjak:
14 "Sir, I am going to ask you to view an extract
15 from a videotape and ask you if you recognise this as an
16 excerpt of an interview given by you and Mr. Delalic.
17 I would ask the technical people that the excerpt from
18 I25, which is marked as Prosecution Exhibit 115, be
19 shown. After it is shown, I will have a question for
21 The excerpt is then played from the videotape, and
22 the transcript of what is said on the videotape is
23 recorded. It was simultaneously translated by the
24 interpreters. The witness then says on page 8467:
25 "If I can just add, I remember that this interview
1 took place between 29th October and 1st or 2nd November,
2 so the situation was quite different from the one that
3 we were discussing, that is the situation in Prozor."
4 Your Honours, in our submission, clearly this
5 witness recognises this tape, this interview that took
6 place and this event.
7 Then there is a further playing of the tape at
8 page 8476, where again Ms McHenry says she wants to play
9 an excerpt of Exhibit 115, tape I25. The video is
10 played and then the witness says -- Ms. McHenry says:
11 "If you can look at it and tell us what is being
13 Answer: International Committee of the Red Cross
14 to the Commander Zejnil Delalic."
15 Then Ms McHenry asks another questions at
16 page 8477 about the Red Cross and its context, but
17 I need not take your Honours through that.
18 In addition, your Honours, this particular -- I am
19 sorry. So, your Honours, in our submission, this
20 videotape not only is a videotape that was located on
21 the premises, and we submit that notwithstanding the
22 error in the counting of it, it nevertheless was
23 corrected by the witnesses Moerbauer and Navrat to the
24 best that they could do so in hindsight. But in
25 addition to that, it has the additional factor of --
1 indicia of reliability in that it is a video that was
2 recognised and testified to by the witness Divjak.
3 Finally, it is a video which shows the accused
4 Delalic, and although we are only dealing at the moment
5 with the transcript of the video, his appearance on it
6 is also additional evidence of its authenticity and
7 reliability, which we rely on.
8 We say the excerpts that are shown in the
9 transcript that I have provided to your Honours we say
10 is relevant to questions of command responsibilities.
11 It goes to the question of the tension that was existing
12 or developing between the HVO and the army of
13 Bosnia-Herzegovina that we have heard of in relation to
14 so many of the documents that we have looked at. In
15 those bases, we would say that it is authentic, it is
16 reliable, it is relevant and should properly be admitted
17 into evidence.
18 Your Honours, with the next exhibit, videotape
19 Exhibit 116, and referred to as I46, being a videotape
20 recovered from the premises of INDA-BAU --
21 MR. O'SULLIVAN: Your Honours, if I may interrupt my friend
22 for a moment, my apologies for doing so. There is some
23 confusion in my mind as to how your Honours have dealt
24 with the preliminary issue to which you asked Mr. Niemann
25 to respond, and that is namely to explain the
1 discrepancy. I must ask for clarification at this point
2 and ask where we stand on that particular point which
3 you asked Mr. Niemann to address.
4 JUDGE KARIBI-WHYTE: That is not what I am about to ask.
5 Which of the tapes come within the next of the exhibits
6 you are trying to tender, which of the tapes, 51 or 54,
7 those tapes as a whole, so we can take them together?
8 THE INTERPRETER: Microphone please.
9 MR. NIEMANN: I thought your Honours had it. I have a copy
10 here, your Honour. (Handed).
11 JUDGE KARIBI-WHYTE: Let us know how the tapes 51 or 54 are,
12 because they are clearly separate from the first set of
13 tapes, MIB, MIC, MID. They are separate, the INDA-BAU
14 videos, which is not certain whether they are 51 or 54,
15 so we will know what those tapes are.
16 MR. NIEMANN: It is the two tapes that I am now dealing with,
17 Exhibit 115, which is I25 and I46, which is Exhibit 116,
18 they are the two tapes that fall among the 54 tapes that
19 were recovered from the premises of INDA-BAU where the
20 miscounting was taking place, and I have made my
21 submissions about what the state of the evidence is
22 concerning that, namely that the officers says that an
23 error was made and that the error was found some days
24 later. They assert that the tapes were 54 in number
25 originally, that the miscounting must have occurred at
1 the premises of INDA-BAU when the Niederschrift was
2 filled out, but these two tapes fall within that
3 category. They fall within the 54 tapes that were
4 seized at those premises.
5 JUDGE KARIBI-WHYTE: I think the main contention is if they
6 are 51, the three additional tapes, there must have been
7 three additional tapes. If they are 54 then there are
8 no additional tapes. If we take it as 51, it will not
9 be certain which are the three additional tapes which
10 make them 54. I hope you follow the argument.
11 MR. NIEMANN: I understand the Defence argument. I am saying
12 that the evidence does not support their argument. The
13 evidence says that there were 54 from beginning to end.
14 JUDGE KARIBI-WHYTE: If that is the evidence, the documents
15 would have been consistently 54.
16 MR. NIEMANN: Not if a mistake had been made, your Honour.
17 JUDGE KARIBI-WHYTE: If you have already indicated, if the
18 Prosecution has indicated 51 on its document when it was
19 seized, now to get to the police headquarters and find
20 54 appears to be inconsistent with what was there.
21 MR. NIEMANN: There was a mistake.
22 JUDGE KARIBI-WHYTE: This is the problem. The mistake is
23 the problem, because if there was a mistake, how do you
24 explain that that mistake did not happen after it was
1 MR. NIEMANN: The state of the evidence is there was a
2 mistake made in the counting, not in the seizure of the
3 videotapes. The state of the evidence from Navrat is
4 that 54 videotapes were seized and the counting of them
5 was the error, not the mistake in the tapes themselves,
6 and that there was not three added. But I have moved to
7 another --
8 JUDGE KARIBI-WHYTE: You have. The uncertainty which that
9 mistake has brought into the whole picture, it is what
10 makes it fairly difficult to rely on the fact that they
11 were seized at that place.
12 MR. NIEMANN: I understand that, your Honours, but that is
13 why I have presented the evidence on a different basis.
14 If the witness Divjak comes along here and testifies --
15 JUDGE KARIBI-WHYTE: Divjak can come when the videotape can
16 be viewed. It can only be viewed if you accept it for
17 the purposes of the evidence.
18 MR. NIEMANN: He viewed it, he has seen it.
19 JUDGE KARIBI-WHYTE: That is a different matter. If finally
20 we discover that these videotapes are tainted with
21 uncertainty, even if he viewed it, perhaps it might give
22 a different picture, it might have been smuggled in
24 MR. NIEMANN: It could have been, but the chances of that
25 become more remote and fanciful when a witness comes
1 along and says, "Yes, I know about that interview,
2 I participated in it".
3 JUDGE KARIBI-WHYTE: He could say so. Then you would still
4 not be arguing that you seized it from the premises of
5 INDA-BAU. You could have brought it after that.
6 MR. NIEMANN: It would not matter where it came from then.
7 JUDGE KARIBI-WHYTE: But that is not your argument.
8 MR. NIEMANN: But there are two arguments.
9 JUDGE KARIBI-WHYTE: Then you will not be relying on the
10 fact that you brought it from that place.
11 MR. NIEMANN: That is what I am saying.
12 JUDGE KARIBI-WHYTE: That is your argument, that you brought
13 it from this place. I have been listening to you
14 carefully, and all the argument is that there are 54
15 tapes, and if the 54 tapes all come from INDA-BAU, and
16 that is what you rely upon, that it was brought from the
17 premises of the person who is likely to keep them, and
18 they were found from that premises, it is not the same
19 argument as saying that, "I even have the tapes",
20 irrespective of whether it was in that premises.
21 Nothing stops anybody having those tapes. Anybody who
22 was a participant in the exercise could have had that
23 tape and can use it, but when you claim that it was
24 brought from his premises, it is a different matter.
25 MR. NIEMANN: I thought I made it clear that my argument was
1 in the alternative. I have alternative arguments. If
2 I have not made that clear, your Honour, I will try and
3 make it clear, but I am presenting to you two
4 arguments. When I started off this morning, I said that
5 not only would I present the transcript of what was said
6 about the miscounting --
7 JUDGE KARIBI-WHYTE: Your alternative argument is that it
8 has been viewed by the General. It was not from the
9 same source.
10 MR. NIEMANN: It would not matter where it came from.
11 JUDGE KARIBI-WHYTE: You do not exclude the fact that it was
12 not from that source, the INDA-BAU tapes which were
13 viewed by the General.
14 MR. NIEMANN: I could have got it from anywhere.
15 JUDGE KARIBI-WHYTE: But you did not.
16 MR. NIEMANN: In my submission, your Honour, the alternative
17 argument is this --
18 JUDGE KARIBI-WHYTE: I like forthrightness in arguments and
19 that is why I do not like duplicity of this type. If
20 you had said you got it from INDA-BAU, the tapes, I take
21 it for that. It is possible you got it elsewhere. Now
22 if you are not relying on the INDA-BAU tapes, you could
23 have said so, as the alternative argument that these
24 were not from that collection. It is not your argument
25 that it is not from that collection.
1 MR. NIEMANN: Is your Honour suggesting I am not being
3 JUDGE KARIBI-WHYTE: In this argument I have not been
5 MR. NIEMANN: Your Honours, I am very disturbed that you
6 should say that.
7 JUDGE KARIBI-WHYTE: I have told you, I have listened to the
8 arguments and you still insist that it was put in the
9 alternative. Your alternative is still the same
11 MR. NIEMANN: I would argue to the contrary on that. I would
12 say that objections to admissibility based on the fact
13 that they were seized from the premises is a matter that
14 troubled your Honours, notwithstanding the fact that
15 I would argue that the evidence would point to the fact
16 that it was just a mistake in counting that was made,
17 but the objection to their admissibility would arise
18 because of their uncertainty in relation to where they
19 came from when they were seized. That would be the
20 objection to their admissibility there.
21 The alternative argument is not affected by that
22 issue, and that is reflected by the fact that Exhibit
23 114 has already been admitted by your Honours, namely
24 the interview that was conducted with Arif Pasalic, the
25 witness. The reason why your Honours were not concerned
1 about that is because the witness came along and
2 testified to it. The document 114 is also an INDA-BAU
3 tape, I22. It falls into exactly the same category, but
4 it has been accepted into evidence --
5 JUDGE KARIBI-WHYTE: I suppose this is a little
6 theoretical. You see, when the evidence is even
7 admitted, if subsequently we find that it is tainted in
8 such a way as to prejudice a fair administration of
9 justice, we can exclude it.
10 MR. NIEMANN: I do not deny your Honour can do that.
11 JUDGE KARIBI-WHYTE: That is why I want you to establish
12 your arguments so that none of the disqualifying
13 elements affect the evidence which you introduce.
14 MR. NIEMANN: I need to know, though, whether your Honours do
15 not accept my alternative basis.
16 JUDGE KARIBI-WHYTE: Why not? There is no ruling which has
17 been made about it. We will hear the Defence
18 submissions on all the issues before we make up our
20 MR. NIEMANN: It is interesting that the Defence themselves
21 have put parts of these videotapes, or parts of the next
22 videotape into evidence themselves.
23 JUDGE KARIBI-WHYTE: How does that make everything
24 credible? At the close of the arguments, we will see
25 exactly where everybody stands. That is why we will
1 refrain from making a ruling before all arguments are
3 MR. NIEMANN: But I am troubled that your Honour feels that
4 I am not being forthright, because my intentions were
5 furthest from the point.
6 JUDGE KARIBI-WHYTE: I am sorry if perhaps I might have said
7 it differently from my intention. My intention is to
8 make it clear that if the argument is based on the fact
9 that these tapes are all from the INDA-BAU premises, it
10 will still be a different concentration from viewing a
11 tape we could have got elsewhere, even though it is the
12 same with the INDA-BAU premises. I agree there might be
13 other copies which could have been brought to be viewed
14 here, but if the argument is that it was not from the
15 premises, then one would not be relying on the
16 collection of 54 which has been stated to have been
17 counted, because it has been the counting that has been
18 the problem. That is the problem, that at least there
19 is a credible counting of 51 and another one of 54.
20 MR. NIEMANN: I think it is necessary for me to make it
21 abundantly clear that there is no question from my point
22 of view about where we are saying these documents come
23 from, these videos come from. We say they came from
24 INDA-BAU and at no stage am I suggesting they are coming
25 from anywhere else. What may have occurred is when
1 I said that they could have come from anywhere else, it
2 does not affect the argument, I was merely saying that
3 arguendo to illustrate my point in relation to a witness
4 who comes along before the court and testifies, "yes,
5 I remember this event, I remember when I participated in
6 this event", and what I was merely saying arguendo and
7 by way of illustration is when you have that sort of
8 evidence, that quality of evidence before you, then the
9 issue of whether there was a miscount in the numbers is
10 not a matter that, we would argue, should concern
11 your Honours, because you have first and direct evidence
12 of the witness who says, "yes, this is a video of an
13 event in which I participated".
14 All I was saying is that with the alternative
15 argument, the alternative argument being the person
16 comes along and themselves says, "yes, this is my
17 video", your Honours need not be troubled by the
18 counting. But at no stage was I ever suggesting to
19 your Honours that it may or may not have come from
20 INDA-BAU, I was not putting that to you. My position
21 has always been the same, that our argument is that it
22 came from INDA-BAU and we accept your Honours' concern
23 that you are disturbed by the miscounting, and that may
24 indeed have been fatal, had it not been for the fact
25 that the witnesses admit to the error, and also that
1 somebody else can come along and say that they know of
2 this tape.
3 JUDGE KARIBI-WHYTE: Mr. Niemann, you know, the more fatal
4 aspect is that it is not impossible that this tape was
5 not one of those counted. If it was replaced, or if it
6 is an additional tape, if it is 51 and you say, "this is
7 an additional tape".
8 MR. NIEMANN: It becomes mere speculation on my part to
9 suggest where else it would come from. All I know is
10 that on the record, that is not the position that is
11 accepted by the Austrian police. Their position is that
12 there was a miscounting in numbers. Whether that is
13 right or wrong I cannot assist your Honour. That is
14 what they say. The point of reading the transcript was
15 merely to say to your Honours that I do not think
16 bringing them back and questioning them on this point
17 would --
18 JUDGE KARIBI-WHYTE: It would not make any difference,
19 because they have been closely questioned as to what was
20 in the Niederschrift and what was counted at the police
21 headquarters. That has been established. It was not at
22 the point of seizure of seizure that it was 54, because
23 the forms that are filled at the premises, it was 51
24 that was filled there, but if the miscounting took place
25 there and not at the police headquarters, then although
1 they have claimed they were in controlling custody
2 possession all through, how many come 54, 3 additional?
3 MR. NIEMANN: Your Honour, that is the state of the
4 evidence. The state of the evidence is the error was
5 made at the premises of INDA-BAU, when they were
6 originally seized. That is the state of the evidence.
7 That error was not found until later. That is our
8 submission as to the state of the evidence.
9 JUDGE KARIBI-WHYTE: It is all right. You can continue with
10 the argument, there will be a reply.
11 MR. O'SULLIVAN: Your Honour, that is a clear misstatement of
12 the facts, that there has been an admission by a police
13 officer that he miscounted on the premises. The record
14 is quite the opposite. That is a clear misstatement of
15 the record and the facts on the record in the testimony
16 of Officer Navrat.
17 MR. NIEMANN: I did not say it was Officer Navrat,
18 your Honours. I rely on page 3740 of the transcript,
19 line 11.
20 MR. ACKERMAN: Your Honour, I think clarity is important.
21 Mr. Navrat never backed off of his Niederschrift where he
22 said there were 51 tapes. He never said in this court,
23 "I made a mistake, I was in a hurry, I did not count
24 them properly", that never happened. Officer Moerbauer
25 was not there. For Officer Moerbauer to say there was
1 apparently a mistake is of no help to your Honours,
2 because he was not there, he was not there when the
3 tapes were counted and counted to be 51. Navrat never
4 came before this court and said, "I made a serious
5 mistake, I was in a hurry, I counted wrong". He stuck
6 by his Niederschrift, he stuck by his 51 number, that is
7 the state of the record.
8 MR. MORAN: Your Honour, I think this is another example of
9 one party or another saying, "there is evidence that
10 favours us, so the Trial Chamber has to accept it". As
11 I pointed out earlier in the week, this is something
12 where the Trial Chamber is going to have to make some
13 kind of credibility choice. Just because we have
14 evidence that favours our side, it does not make it
15 wholly right.
16 JUDGE KARIBI-WHYTE: Well, I think when counsel has
17 concluded its argument on it, you will have your right
18 of reply, to make your own points. It is only after that
19 that we will make a ruling.
20 MR. NIEMANN: Again, by the allegation of misstatement, no,
21 there is no direct statement by Navrat, but Navrat does
22 say, when confronted with the proposition that three new
23 videotapes were added to the original 51:
24 "Would you accept the possibility, would you not?
25 Answer: Everything is possible, but I have a
1 tough time imagining that."
2 Your Honours, the videotape I46 is a videotape
3 that Madam Residovic showed to the witness Divjak in the
4 course of his testimony, and during that, she plays the
5 tape, page 8565, and she says:
6 "I would like this excerpt to be marked and the
7 cassette given to the Prosecution within the group
8 I think of 46 tapes."
9 We then ask for a number and the number is then
10 given, D11 6/1. The tape is then played to the witness,
11 Divjak. It is now marked as an exhibit for the Defence,
12 D11 6/1.
13 MS. RESIDOVIC: Your Honours, I would not like to
14 participate in the debate at this stage, but I do wish
15 to say that this method of showing a small segment of a
16 video that we received from the Prosecution, and we do
17 not know where it comes from, and to prove thereby the
18 source of the video I think is inappropriate. We
19 received that insert on at least ten videotapes from the
20 Prosecution, and saying that we saw an insert about the
21 war does still not answer your question where that video
22 comes from. Thank you.
23 MR. NIEMANN: It does not, but if the Defence use it for the
24 purposes of questioning a witness or impeaching a
25 witness or whatever, then it suggests that they
1 themselves must place some credibility on the document
2 or videotape, otherwise they would be doing nothing
3 other than, I would submit, misleading the Chamber,
4 which I am sure they would not do. It is significant
5 that they relied on it for the limited purposes that
6 they did.
7 Also the same video, a portion of the same video
8 was shown to the witness Branko Gotovac in the course of
9 cross-examination of that witness by Ms McMurrey.
10 Your Honours, that is not the only basis upon
11 which we argue in the alternative. I keep emphasising
12 now that it is in the alternative. We are not
13 suggesting that it came from anywhere other than
14 INDA-BAU. Your Honours, during the course of the record
15 of interview with the accused Zejnil Delalic, at page 3
16 of the record of interview, he is questioned by the
17 investigator in relation to an interview that he gave at
18 a Zagreb TV programme called, "Slikom na Sliku", and
19 I have taken your Honours to this previously in relation
20 to another matter, namely whether he was in Zagreb in
21 early May, but it is this programme that appears as part
22 of I46, Exhibit 116. Do your Honours have the copy of
23 that in front of you? I hand a copy up to
24 your Honours. (Handed).
25 It is quite a long interview, but we have only
1 extracted the limited parts that we are seeking to rely
2 on. It is composed of two components, it is this
3 interview on the programme "Slikom na Sliku", but there
4 is another part of it which is entitled "the war in
5 Bosnia-Herzegovina", which is again part of this long
6 video. I think it runs for something in the area of
7 three hours, so we have only extracted a very short part
8 of it for the purposes of the Prosecution case. The
9 point that I wish to make now is that this video is
10 about that interview in Zagreb in May when the accused
11 Zejnil Delalic was interviewed, and it shows him
12 participating in the interview. He is questioned about
14 THE INTERPRETER: Microphone, please.
15 JUDGE JAN: When he was a co-ordinator, or before his
16 appointment as co-ordinator? I think co-ordinator
17 appointment is 12th May?
18 MR. NIEMANN: The evidence is not clear on that. It is
19 possibly before he was appointed co-ordinator. He was
20 certainly active in Konjic at the time establishing the
21 fledgling army, but the point I wish to make in
22 connection with the interview is he was asked by the
23 investigators whether he was interviewed on this
24 programme, he says yes, and then the question is:
25 "When was that?
1 Answer: That was in the month of May when I went
2 to Zagreb for logistics.
3 Question: Beginning of May, mid May, end of May?
4 Answer: First half of May.
5 Question: What was the purpose of the interview?
6 Answer: There was an association of people from
7 Konjic and Zagreb. The war had only just begun, and
8 they wanted to hear about more what was happening in
9 Konjic. You know that Konjic is 350 kilometres away.
10 Since it was the beginning of the war, they wanted to
11 have accurate information on what was happening in
12 Herzegovina and what kind of co-operation existed
13 between the TO and the HVO.
14 Question: How come you were selected for
16 He explains he happened to be coming from the
17 area. The point that I wish to raise by this point is
18 that there is nothing that emerges from the record of
19 interview to suggest that this interview did not take
20 place as a matter of fact and that he did not
21 participate in it. As I said, your Honours, the tape is
22 a very long tape, and there is a large section on it
23 entitled, "The war in Bosnia-Herzegovina". The
24 investigators go on at page 5 of the record of interview
25 of 23rd August 1996, and they say in relation to the
1 balance of this particular videotape, which was the part
2 that dealt with the war in Bosnia-Herzegovina, they say:
3 "Was this the same journalist as in another
4 context had told you that you were the leader when the
5 Celebici barracks were liberated?"
6 It is on page 5, your Honours. The accused says:
7 "I do not understand, what other context?
8 Question: Because from one of the videotapes we
9 seized in Vienna on 18th March this year, 1996, there is
10 a sequence where you are told to be the leader of the
11 group that liberated Celebici barracks and you were the
12 person who organised the prison in the military barracks
13 in Celebici."
14 Then the investigator says:
15 "This is told by a journalist in the video we
16 seized, a video called, 'War of Bosnia-Herzegovina'."
17 That is the title given. The accused then says:
18 "My question to you is whether this videotape in
19 the sequence is not just a commentary that is taped or
20 recorded in between the footage, or the broadcast live,
21 or directly recorded."
22 The investigator said:
23 "This is a videotape that consists of several
24 clips from TV. My question is just to find out whether
25 it is just one journalist who claimed you, all the
1 time, who bragged to you to be leader of the area at the
2 time, or are there more than one journalist who made
3 that kind of statement that you were most important
4 leader in Konjic area at the time, April/May."
5 The accused says in relation to that aspect of the
7 "The videotape to which you are referring was made
8 one year later in Vienna."
9 I need to just clarify this here. Your Honours
10 appreciate, there are two parts of the video. There is
11 the part that was recorded from the television series in
12 Zagreb in May 1992, and there is another feature part of
13 the video which is a much bigger part and it is
14 entitled, "The war in Bosnia-Herzegovina". That is the
15 part which he is referring to now, that he is talking
16 about. He says:
17 "The videotape to which you are referring was made
18 one year later in Vienna and all the comments I give on
19 these films in between footages are invented and you can
20 just forget about it. Those comments were made by
21 amateurs in a Bosnian club in Vienna."
22 I emphasise at this point we are not seeking to
23 tender any of those parts of the video. He has said
24 that they were exaggerated and we do not know to the
25 contrary. Besides, the only part of the videotapes that
1 we are interested in are the parts where he the accused
2 is himself speaking, we are not seeking to get into
3 evidence commentary by journalists or whatever about the
4 matter, and so in the extracts we have provided to
5 your Honours we have been careful to exclude those parts
6 which are not speaking parts by the accused.
7 The investigator then goes on, further down the
9 "Who made the video, 'The war in
11 Answer: The footage, they came from different
12 sources, from all over, some people private video,
13 something that was recorded from the TV, but the
14 comments that you can hear on the videotape are made by
15 a kind of cultural section of the Bosnian Culture Club
16 in Vienna."
17 Your Honours, nowhere when questioned about this
18 matter does the accused say, "well, if you received that
19 from premises in Vienna, that was a mistake", or, "that
20 was never there, you got that wrong". Nowhere does he
21 ever say, "you people must have fabricated this", or,
22 "the Vienna police must have fabricated this, because
23 I do not know anything about it", which one would expect
24 him to say if that is the case. What he says is what
25 one would expect him to say. He says yes, that he knows
1 of it, that he acknowledges that the first part or the
2 part that relates to the interview in Zagreb in May
3 1992, that is correct, and he explains his participation
4 in that. But what he says is that with the part of the
5 tape that relates to the war in Bosnia-Herzegovina that
6 there are components in that which were made by
7 journalists and others, and he says they are not
8 accurate. We are not seeking to tender those,
9 your Honours.
10 Your Honours, in our submission, you have before
11 you in relation to this videotape the very best evidence
12 that you could possibly have, the very best evidence,
13 because it comes from the accused himself, and at no
14 stage does he attempt to say to your Honours that it is
15 something which was not at the premises or it was
16 something that must have been made up by the Prosecution
17 or the Vienna police or by somebody else who had such
18 malicious intent.
19 We submit, your Honour, that this video, extracts
20 of the video we have provided your Honours with, is
21 admissible and relevant. We say that the first part,
22 segment 1, is relevant because it speaks of what the
23 accused was doing in those very early parts of the war
24 in May 1992, being interviewed on Zagreb Television. It
25 speaks of the barracks at Celebici being recovered, it
1 refers to an ultimatum which was issued to the JNA, in
2 which the accused himself had some role, and is referred
3 to in the record of interview. It refers to the joint
4 command between the HVO and the army of
5 Bosnia-Herzegovina, which your Honours have heard so
6 much about in the course of the evidence.
7 The video also contains that segment that
8 I referred your Honours to previously, where the use of
9 the call name, "Oganj", meaning "fire", is also
10 contained as part of this extract of the video. On all
11 of those bases, if your Honours please, we submit that
12 because the accused himself has made reference to this
13 video, has not contested its existence, that it is
14 relevant, that it is authentic and it should properly be
15 admitted into evidence. Those are our submissions, your
17 MR. GREAVES: Before my learned friend sits down, could
18 I just ask him to deal with one thing that he has
19 literally just mentioned, and that is in segment 8,
20 bottom two lines of that segment. It appears that there
21 are two people who use the codename "Oganj". Please
22 would he explain to us what effect that has on his
23 proposition -- I will not use the word "evidence" --
24 proposition that the name "Oganj" in the documents is
25 only that of Mr. Delalic. The document says just
1 "Oganj". Which "Oganj" is it? The point is this;
2 there are two people who use the codename "Oganj". The
3 document simply says "Oganj", it does not say 1 or 2.
4 Which does the Prosecution say it is, 1 or 2?
5 MR. NIEMANN: Well, we say Oganj 1 is the accused Zejnil
6 Delalic, because that is what he says. He says:
7 "002, do you hear me? Oganj 1 calling".
8 MR. GREAVES: But the document does not say "Oganj 1", it
9 just says "Oganj". There are two "Oganj"s, which of
10 those two does he say the document is referring to?
11 MR. NIEMANN: The document is referring to Oganj 1, this is
12 our submission.
13 MR. GREAVES: That is not what it says, it just says "Oganj",
14 of course.
15 MR. NIEMANN: Of course.
16 MS. RESIDOVIC: Your Honours, in connection with this
17 discussion, I should just like to draw attention to a
18 point which should not mislead us. It is true that
19 during the interview with Mr. Delalic, certain subjects
20 were discussed. I must say that the Prosecution
21 submitted to us 80 and more tapes, some from
22 entertainment, others dealing with the questions of the
23 war. The Prosecution submitted a special tape entitled
24 "Slikom na Sliku", and my client during the interview
25 with the interviewer discussed the subject of "Slikom na
1 Sliku", and not the tape which is now being tendered
2 into evidence.
3 Also, among the 80 tapes given to us by the
4 Prosecution, many dealt with the questions of the war.
5 My client, as you saw in this segment, referred to
6 certain events that he could recall, the rough footage.
7 Never for a moment was my client shown this video, nor
8 did he recognise it. Therefore his interview about the
9 events and themes raised in this video cannot be a basis
10 for the admissibility of this tape, whose source we do
11 not know.
12 As Mr. Delalic pointed out, many people shot
13 various features and reports about the war, and to make
14 conclusions about the so-called codename "Oganj", used
15 by several people, as Mr. Greaves has stated, and the
16 explanation given in my view cannot be a basis for
17 accepting the reliability of the video being offered by
18 the Prosecution.
19 MR. NIEMANN: Your Honours, the videotape contains two
20 segments, as I thought I had explained, the segment
21 relating to the war in Bosnia-Herzegovina segment, and
22 the other part which related to the programme on the
23 Zagreb TV, "Slikom na Sliku". The tape is one complete
24 tape containing two parts. The tape was mentioned on
25 page 5 of the transcript in relation to that part of the
1 tape pertaining to the war in Bosnia-Herzegovina, when
2 the investigator says:
3 "Because one of the videotapes we seized in Vienna
4 on 18th March this year, 1996, there was a sequence in
5 which you were", and then he continues questioning, so
6 there is no question that at least the second part of
7 the tape, that was raised directly with the accused
8 during the course of his record of interview.
9 MS. RESIDOVIC: Your Honours, as you rightly said, Vienna
10 is a big city. It was clearly stated that this cassette
11 is from INDA-BAU. The interview conducted with my
12 client does not affect the reliability of this video.
13 There is a legitimate way for the Prosecution to
14 authenticate every segment. He can have a witness who
15 can recognise it. If my client testifies before this
16 Trial Chamber, he can also be shown various segments,
17 but this is not the way to establish the reliability of
18 an exhibit in this Trial Chamber.
19 MR. NIEMANN: That is not inconsistent with the ways,
20 matters, documents and material presented before other
21 trial chambers in relation to other matters, so I do not
22 know to what my friend is referring.
23 JUDGE KARIBI-WHYTE: This is your concluding argument about
24 the tapes, is it?
25 MR. NIEMANN: That concludes all the material seized from
2 JUDGE KARIBI-WHYTE: Thank you very much. What is your
4 MR. GREAVES: I am going to ask you to indulge me this
5 morning, your Honour. I am going to be considerably
6 less than the three days it has taken my learned friend
7 in addressing you, I hope it is going to be no more than
8 an hour, but what I would like to do is do it all in one
9 piece, so that the flow of what I have to say to
10 your Honours is not interrupted by the break which must
11 happen in order for Mr. Landzo to be seen by the doctor.
12 What I would invite your Honours to do is allow me to
13 commence addressing you at 2.30 this afternoon, please,
14 rather than doing ten minutes and losing the thread, if
15 I can use that phrase.
16 JUDGE KARIBI-WHYTE: I think that should be convenient.
17 MR. GREAVES: Thank you very much, your Honour.
18 THE INTERPRETER: Microphone, your Honour, please.
19 JUDGE JAN: Segment 10 is important in this last tape. Have
20 you examined this Milosevic and Maric? Who says that
21 this is being taped in Celebici camp?
22 MR. NIEMANN: Your Honour is talking about the second
24 JUDGE JAN: Segment 10.
25 MR. NIEMANN: Is your Honour referring to segment 10?
1 JUDGE JAN: Yes, "Scenes about the Celebici prison",
2 prepared by Jadranka Milosevic and Zvonko Maric.
3 MR. NIEMANN: The reference, your Honour, to that first part,
4 Delalic standing with a female interviewer by a tree?
5 JUDGE JAN: Yes, and the heading is, "Scenes about the
6 Celebici prison".
7 MR. NIEMANN: Is your Honour asking why do we say it is the
8 Celebici prison?
9 JUDGE JAN: Yes.
10 MR. NIEMANN: I think only the first part relates to the
11 Celebici prison.
12 MS. RESIDOVIC: May it please the court.
13 MR. NIEMANN: If I can just interrupt my friend for a moment,
14 there may be an error made here, your Honour, that is
15 what Ms. McHenry is telling me about. I would need to
16 check it. Perhaps when we come back I will tell you
17 whether or not there is. If there is an error made, we
18 can have it redacted.
19 JUDGE JAN: Another thing, the accused was interviewed by
20 the OTP. Was he questioned about this particular
21 segment and what did he say?
22 MR. NIEMANN: No, he was not questioned about this --
23 JUDGE JAN: He was cross-examined about so many -- he was
24 examined and he was asked to explain his position with
25 regard to various segments. What did he say with regard
1 to this segment?
2 MR. NIEMANN: I will check that.
3 JUDGE JAN: Please do.
4 MS. RESIDOVIC: Your Honours, if I may assist, may I?
5 JUDGE KARIBI-WHYTE: In explaining the tape segment?
6 MS. RESIDOVIC: Yes. I think Judge Jan noted very well
7 this point, because it can prove the unreliability of
8 this tape. We showed this tape to two witnesses, the
9 doctor who is a protected witness and Dr. Petko Grubac.
10 Both doctors testified that at the time they were giving
11 this interview Zejnil Delalic was not present.
12 Therefore the evidence presented in court calls in
13 question the reliability of exhibits prepared in this
14 way, as is the case with this video cassette.
15 JUDGE KARIBI-WHYTE: I do not think you need say anything.
16 The Trial Chamber will now rise and reassemble at 2.30.
17 (11.25 am)
18 (Adjourned until 2.30 pm)
1 (2.30 pm)
2 JUDGE KARIBI-WHYTE: Mr. Niemann.
3 MR. NIEMANN: Yes, your Honour. Your Honour Judge Jan asked
4 me to clear up a couple of matters in relation to the
5 last video exhibit that I have dealt with, exhibit P116
6 and in particular that part in segment 10.
7 Your Honours, it was discussed with the accused in the
8 record of interview of 18th and 19th March 1996, at
9 page 51 and 52, and again at page 55. Certainly he
10 agrees that he took part in the interview, but he said
11 that he was not there at the same time as the filming
12 that took place, so it looks as though there was filming
13 at the camp, he went to the camp, but then the filming
14 segment that he participated in, according to his
15 version of it, was back at his house. It seems that
16 way. There is some confusion in the reading of it, but
17 in order to overcome any issue on that, we would ask
18 that the words "in the camp" which are referred to there
19 be deleted, if your Honours pleads, from it. We will
20 not assert that it was in the camp, but certainly the
21 interview did take place, it was discussed with him and
22 he went to the camp at one stage during the course of
23 it, although that particular filming may not have taken
24 place there.
25 MR. ACKERMAN: Your Honour, I had understood from Mr. Niemann
1 when he began this process with the videotapes that
2 these transcripts were only prepared as a sort of
3 personal aide memoire which he was sharing with us, so
4 deleting something from them is not necessarily
5 consistent with that. My assumption is that
6 your Honours have used them for the purposes for which
7 they were intended by Mr. Niemann, as an aide memoire,
8 but are not exhibits and are not part of the record in
9 the case. I hope my understanding about that is
11 MR. NIEMANN: Mr. Ackerman is quite right. He is quite right
12 about deleting it. Insofar as there is any suggestion
13 that the Prosecution is asserting that the video relates
14 to filming in the camp with the accused Delalic, we are
15 not making that assertion. One needs to read the record
16 of interview, which is an exhibit. I did not go through
17 it, it is quite a lengthy section, but there is no
18 question that he did go to the camp on that day.
19 THE INTERPRETER: Microphone, please.
20 JUDGE KARIBI-WHYTE: Thank you very much. I think we are at
21 Mr. Greaves.
22 MR. GREAVES: Good afternoon, your Honours, may it please
23 you. This is plainly an important issue, given the
24 amount of time which we have dedicated to this
25 particular matter. I want, with your Honours'
1 indulgence this afternoon, to address to you some rather
2 more general remarks about the nature of the exercise
3 that the Prosecution invites you to conduct when
4 admitting these documents. In so doing, I hope to
5 remind you, of course you probably do not need
6 reminding, but I am going to do so whether you like it
7 or not, of some fundamental matters of law, something
8 which so far has been missing from the address of the
10 Some time ago in the summer, when there was sun
11 and it was still shining and warm, there was a motion
12 filed on the issue of cross-examination. It was an
13 issue which was dealt with by both written and oral
14 argument. Quite apart from the well argued debate on
15 both sides, there was, we say, a particularly revealing
16 aspect of that argument on that occasion which has now
17 surfaced again.
18 We say this: the argument on that occasion
19 demonstrated that the reality is that the Prosecution
20 did not care greatly for the way in which
21 cross-examination was being conducted. It may well be
22 that they had worked out that their witnesses were not
23 faring terribly well under the process of scrutiny that
24 cross-examination necessarily involves. Indeed
25 your Honours may recall during the course of the
1 argument that took place that the Prosecution evinced a
2 distaste for cross-examination by surprise. You may
3 recall that I had to remind your Honours that I thought
4 all cross-examination was supposed to be a surprise.
5 In due course, your Honours gave your views about
6 cross-examination, and those rules that you set out for
7 us have, I hope, been applied universally by us.
8 Because of the way in which argument has been put
9 forward by my learned friend Mr. Niemann on this
10 occasion, I respectfully submit to you that the
11 Prosecution did not take such reverse, as they felt,
12 lying down. What we say is that this exercise that you
13 are being invited to conduct is demonstration of how
14 they think they can get evidence in front of you without
15 the process of cross-examination taking place.
16 This is not peripheral evidence. They say it is
17 central to their case. They say this is evidence which
18 will assist you to convict the defendants, so from that
19 point of view, this is highly important evidence. When
20 you think of how important they say it is, and you look
21 at the casual way that you are invited to take it and
22 admit it, you will see that the process that is involved
23 is both one that is very important, and we say the way
24 in which they are inviting you to do it is in fact
25 thoroughly unjust.
1 What they are doing is presenting you with a
2 process which involves them in not having to go through
3 the inconvenience of calling people, and I am going to
4 give you a specific example, the inconvenience of
5 calling someone who could give evidence about these
6 documents and the events set out in them, without the
7 inconvenience of that person being called and being
8 cross-examined, and the evidence being shown to be
9 thoroughly untrustworthy and unreliable.
10 What we say is this: this exercise, and the manner
11 in which you are invited to admit these documents, is
12 one which would simply drive a coach and horses through
13 some fundamental rights which are guaranteed to each of
14 the defendants in this case, clear rights guaranteed by
15 the Articles of the Statute and reinforced by Rules of
16 Evidence. I am going to come in due course to two
17 articles, Article 20 and Article 21, and two rules,
18 Rule 89 and Rule 95.
19 Let me first of all identify to your Honours three
20 types of document which are involved in this process.
21 Firstly, there are documents which purport to be written
22 by somebody who is not a party to these proceedings, and
23 who has not been called as a witness. Secondly, there
24 are documents which are wholly unsigned and which are
25 not capable of attribution to anybody. Thirdly, there
1 are documents which purport to be written by a
3 In respect of this part of the argument, I intend
4 only to deal with the first and third categories, and in
5 the light of the law that I am going to recite to you,
6 I am going to make the following propositions in
7 relation to those documents.
8 In the respect of the first class of documents,
9 that is documents that purport to be the work of someone
10 who is not a defendant, who is not a party and who has
11 not been called to give evidence. Let us just consider
12 for a moment what is the nature of the information which
13 is set out in such a document. It is an account of
14 events and personalities that are said to have taken
15 place in Bosnia in 1992. In the sense that it is such
16 an account of such events, it is effectively just like a
17 piece of hearsay evidence which comes from the witness
18 box, with a number of important distinctions. The first
19 obvious distinction is this: there is no witness
20 actually recounting the events to you. You never get to
21 see and hear the witness, and thus assess his demeanour
22 and truthfulness.
23 As importantly, the defendant never gets to see
24 and hear that witness, hear his evidence and hear him
25 being challenged. The declarant in the document is not
1 subject to cross-examination to test the veracity of
2 what he has set out allegedly in that document. So it
3 comes to this: the facts which are alleged and set out
4 in the document are not subject to any form of critical
5 scrutiny, and most importantly, we have no way whatever
6 of testing the accuracy, reliability and truthworthiness
7 of the declarant in the document.
8 We respectfully submit that admitting such
9 documents would amount to a clear and unambiguous breach
10 of the two Articles of the Statute that I have
11 mentioned, and by reasons of Rule 89D and Rule 95,
12 your Honours ought not to admit them. Let me please,
13 and forgive me for taking some time to do this, but it
14 is important, remind your Honours of the law.
15 First of all, Article 20(1). The headnote of that
16 Article refers to the conduct of trial proceedings. It
17 says this:
18 "The Trial Chambers shall ensure that a trial is
19 fair and that proceedings are conducted in accordance
20 with the Rules of Procedure and Evidence with full
21 respect for the rights of the accused."
22 Your Honours will notice that the terms of that
23 Article are mandatory and the phraseology that is used
24 is, "shall ensure", and so there is no ambiguity about
25 the requirement that is laid upon your Honours'
1 shoulders to carry out that duty.
2 If I may turn now to Article 21(2):
3 "In the determination of charges against him, the
4 accused shall be entitled to a fair and public hearing,
5 subject to Article 22", which as your Honours will
6 recall concerns protection of victims and witnesses.
7 Article 21(4):
8 "In the determination of any charge against the
9 accused, pursuant to the present Statute, the accused
10 shall be entitled to the following minimum guarantees in
11 full equality."
12 Subparagraph E of that, one of those is to examine
13 or have examined the witnesses against him; as I say,
14 the terminology is mandatory. It requires your Honours
15 to carry out those duties. Here is the neat trick that
16 we say the Prosecution is inviting you to take on
17 board: by getting you to admit these documents, they put
18 before you someone's account which can never be tested
19 by cross-examination, and can never be challenged in any
20 way at all. After all, you cannot cross-examine a
21 document, can you?
22 We respectfully submit that this breaches the
23 requirement in Article 21(4)E, which entitles defendants
24 to examine or have examined the witnesses against him.
25 It is an account that is given and placed before you
1 which is not subject to any form of critical scrutiny.
2 The effect of allowing these documents in would be to
3 deprive each accused of that right which is guaranteed
4 to him to cross-examine the declarant of evidence about
5 him. We respectfully submit that this demonstrates the
6 inherent unfairness and unjustness of the exercise that
7 you are being invited to conduct.
8 If one needed any reinforcement in that view, one
9 only has to look at the terminology of Rule 89 and Rule
10 95. Rule 89B:
11 "A Chamber shall apply Rules of Evidence which
12 will best favour a fair determination of the matter
13 before it and are consonant with the spirit of the
14 Statute and the general principles of law."
15 We respectfully submit that the rules in relation
16 to the proof of documents should be rules which are
17 consonant with the spirit of the Statute, and the
18 Statute makes it quite plain that if there is someone
19 who gives an account, there has to be a right to
20 cross-examine. If that right is taken away, then the
21 rules cannot be said to be consonant with the spirit of
22 the Statute.
23 Rule 89C, of course, your Honours are familiar
24 with, the admission of relevant evidence which is deemed
25 to have probative value. Rule 89D:
1 "A Chamber may exclude evidence if its probative
2 value is substantially outweighed by a need to ensure a
3 fair trial."
4 The latter part of that sentence plainly reflects
5 the duties that are laid upon the Tribunal in Articles
6 20 and 21. Rule 89E, of course, entitling your Honours
7 to request verification of authenticity of evidence
8 obtained out of court. This is evidence which on the
9 face of it is obtained out of court and I remind your
10 Honour of that power that you have. It is not put there
11 as an idle makeweight to make the Rule look a bit
12 better, it is there for a fundamental purpose, to ensure
13 that when issues of authenticity are raised,
14 your Honours have a clear power to make the Prosecution,
15 and indeed the Defence for that matter, demonstrate
17 Rule 95. This rule is phrased in a mandatory way
18 as well, in strong terms:
19 "No evidence shall be admissible if its admission
20 is antithetical to and would seriously damage the
21 integrity of the proceedings."
22 We respectfully submit that taking those Rules
23 together with the Articles of the Statute, that lays a
24 ground for saying this: there must be proper rules for
25 the admissibility of documents. First of all,
1 authentication, reliability, and then and only then can
2 the court move on to the stage of deciding relevance and
3 probative value.
4 Your Honour, the same can be said with a slight
5 distinction to the third class of documents to which
6 I adverted. Those are documents which purport, and for
7 reasons I come to in due course will say to you that we
8 do not for a moment accept that there is a scrap of
9 evidence that any document in this case, subject to this
10 application by the Prosecution, has been proved to be a
11 document of a defendant, but let us assume for the sake
12 of this argument that it is a document of the
13 defendant. A similar argument applies. I am not going
14 to go through the Rules and the Statute again, but, of
15 course, I remind your Honours of Article 21G, which says
16 that a defendant cannot be compelled to testify.
17 The effect of that, of course, is this, and there
18 is a glaring example here. Admitting this document
19 allows the -- admitting document 130, for example,
20 allows the Prosecution to get in an account by a
21 defendant which is not subject to cross-examination. We
22 respectfully submit that there is a clear breach in that
23 process of the Articles to which I have adverted,
24 because of the operation of Rule 89D and 95 ought
25 plainly to be excluded.
1 We come back to where I have started.
2 I respectfully submit to you that is the process of how
3 the Prosecution are getting in front of people material
4 which is wholly untested and incapable of being tested.
5 You cannot cross-examine a document.
6 I come now to the specific example which shows
7 quite clearly what the Prosecution are trying to do.
8 You will recall from some of the documents that have
9 been placed before you the name "Esad Ramic". His name
10 appears quite frequently in those documents. You may
11 have other reasons to recall Esad Ramic. We say that
12 the case of Esad Ramic demonstrates beyond a
13 peradventure that what the Prosecution is trying to do
14 is stifle cross-examination, trying to deprive the
15 defendants of their rights. You do not need to go very
16 far to find the numerous references to Mr. Ramic, and
17 references to events in which Mr. Ramic was plainly said
18 to be involved, and which Mr. Ramic might be expected to
19 remember and have knowledge of.
20 Let me take you back a couple of weeks or so.
21 Your Honours will recall an application, a motion before
22 this court, a motion for the issuance of a subpoena
23 against Mr. Ramic, who was said to be unwilling to attend
24 this court. He came to The Hague once your Honours had
25 issued that subpoena. We do not know, because he never
1 gave evidence, whether he, like others, had in fact been
2 willing all along and that the information given to my
3 learned friends was incorrect as well, but he was here,
4 he was behind that door somewhere. He was available.
5 He could have been called by the Prosecution, and asked
6 about those matters which are referred to in these
7 documents. He could have given evidence, he could have
8 authenticated the events in those documents. He was
9 ready to give evidence.
10 What did the Prosecution do? They said they could
11 do without him, they could do without his evidence, and
12 so they sent him home. No evidence-in-chief, no
13 cross-examination. They sent him home, because they
14 could do without his evidence. I bet they could do
15 without his evidence. We respectfully submit that that
16 is a clear indication of the way in which they could in
17 fact prove these documents and the fact that they are
18 reluctant to do it in that way at all. There is a much
19 easier way for them, just put them in front of
20 your Honours and say they are authentic. That way
21 nobody can test the truth of what is in the documents.
22 Your Honour, I make some general points in
23 furtherance of my argument about the nature of many of
24 these. First of all, documents which are by someone who
25 is not a party or a witness. In almost every case,
1 there is no proof whatever that in fact the document is
2 genuine. There is no proof whatever that in fact it is
3 by the person whose name is said to be on the bottom of
4 the document. There is no proof whatever of any of
5 those things. In relation to documents whose author is
6 unclear, there is no evidence of authorship, so one
7 cannot even begin to say in relation to those documents
8 if there is any degree of reliability to them. It is
9 impossible to demonstrate anything like accuracy,
10 reliability and truthworthiness, which we respectfully
11 submit are the criteria that your Honours should apply.
12 Documents purporting to be written by individual
13 defendants; there simply is not a shred of proof that
14 any document was in fact written by a defendant. Let me
15 give you a plain example of the dangers, the fallacy
16 that is being proposed to you. There are documents
17 which are said to have been written by Mr. Delalic. They
18 are said to be written by him because his nickname, his
19 code-word was "Oganj". Your Honours know that in fact
20 there were two people using the code-word "Oganj",
21 because it is there in the record of the video. Of
22 course the Prosecution are going to say, "we say it
23 refers to Mr. Delalic when it is at the bottom of the
24 document". Their problem is that there are two people
25 using the same code-word, and it could equally be,
1 because there is no evidence about it, it could equally
2 be the other man who is using the code-word "Oganj" too.
3 Your Honour, that, we respectfully say,
4 demonstrates the great dangers that are involved in
5 following what may seem at first blush an attractive
6 proposition by my learned friend; but when you look at
7 it, look at an example like that, there lies the danger,
8 that you are just asked by my learned friend to simply
9 take these documents on trust. That is what he is
10 doing. No proof, no authenticity, no reliability; "just
11 trust us", say the Prosecution.
12 We respectfully submit that if you allege that
13 some document was written by a defendant, and that it
14 can be used against that defendant, there are no two
15 ways about it: it is incumbent on the person so
16 asserting to prove that that document was created by
17 that defendant. If you do not do so, then it should not
18 be admitted, because it has no indication of reliability
20 There are, of course, many ways in which documents
21 can be proved. One of them has been referred to in this
22 court, by showing them to a defendant in interview and
23 getting him to admit that is his document. It has not
24 been done, save in two innocuous examples in this case.
25 I am not going to go through a list of the ways in which
1 you can properly and very simply prove documents, but
2 there is one example of how you would do it. They did
3 not bother to do that at interview, and now when it
4 comes to actually doing the job properly, they try and
5 put this Heath Robinson affair together, a skimpy way of
6 getting you to admit it by saying, "we say it is
7 authentic and therefore it is okay".
8 Let me just come to this. This is what the
9 Prosecution are inviting you to do. They say, "here is
10 a document". They say, "it bears the name of", for
11 example, "Mucic". They say, "it is therefore without
12 any further evidence demonstrated to be Mucic's
13 document". That is a very dangerous process. The
14 Prosecution's approach to proof of documents, we say, is
15 wholly cavalier. The approach appears to be there:
16 your Honours are professional judges. We can put any
17 document in front of you we like. When we do that, we
18 submit to you the document is true and was written by
19 the person it purports to have been written by. We do
20 not need to prove anything else and all you have to
21 decide is the weight to attach to it. The fact that it
22 is a forgery matters not; if we say it is reliable, that
23 ought to be enough, and if there is some challenge to
24 authenticity of the documents, all that needs to happen
25 is counsel for the Prosecution has to give evidence, he
1 says, "it is a document which has the appearance of a
2 genuine document", just like the ones you have already
3 been looking at. There, they say, "you have all the
4 authenticity you need". That, we submit, is the process
5 of admitting documents, the process the Prosecution
6 invites you to employ.
7 Can I just give you, it may sound like an absurd
8 example, but it may help to illustrate what the process
9 is in a light-hearted way, one which I think will draw
10 your Honours' attention to what is really involved. It
11 is at this point that I am going to make fun of
12 Mr. Moran. I am sure he does not mind that, but just
13 follow me if you will.
14 Let us assume for a moment that my learned friend
15 Mr. Moran suddenly becomes suspected of being a Texan,
16 which, of course, as your Honour knows is a very serious
17 offence. As a result of that, a search warrant is
18 obtained to permit his office here in The Hague and
19 other premises to be raided and searched. In accordance
20 with that search warrant, an elite squad of the Vienna
21 police is assembled and they go in and raid his room
22 here in the Tribunal. It is an office to which many
23 have access. On the desk is a document. It is seized
24 along with many other documents. That main document is
25 signed "T Moran" and it bears an official looking stamp,
1 which no doubt says the word "Texas" somewhere on it.
2 The main document contains a number of statements and
3 they are these: "Texas is a small island in the south
4 Pacific"; "there are no cowboys wearing silly hats in
5 Texas"; "Texas was discovered in 1350 by an obscure
6 Italian explorer who was very lost. When he got home he
7 said to his fellow adventurers 'I now know what Dante
8 was getting at when he wrote The Inferno." Those are
9 plainly absurd statements.
10 Amongst the many other documents which are
11 recovered are a number which refer to Mexico. When the
12 court case comes up and we put Mr. Moran on trial for
13 being a Texan, we place before the court the main
14 document and all the other documents which mention
15 Mexico, and then we make these assertions: "the main
16 document bears his signature, we have no evidence
17 whatever that this is so, but you must take this as an
18 undisputed fact. The stamp on it looks like the other
19 ones we have been looking at in the case and it has the
20 appearance of being genuine. Therefore you must take it
21 that it is genuine. There is a thread running through
22 the document, it is all about Texas. There is also a
23 thread running through the other documents, it is all
24 about Mexico. Of course, Mexico is very near Texas, is
25 it not? These threads mean Mr. Moran is a Texan and he
1 is guilty of the offence, even though we have no proof
2 whatever that it is his document".
3 Taking all those facts together, the court can say
4 not only is it authentic and genuine but it is both
5 relevant and probative and Mr. Moran is proved to be, as
6 we said, a Texan. In fact, the document was really
7 written by Mr. Ackerman, who planted it on his desk with
8 a view to damaging his reputation as a well-educated,
9 debonair man. That is the exercise that you are being
10 invited to do in this case, your Honours. Absolutely
11 that, putting 2 and 2 together and ending up with 5.
12 Your Honour, we respectfully submit this: this is
13 a good opportunity for your Honours to lay down a set of
14 rules, rules comparable to the decision in the Tadic
15 case involving hearsay; rules which will stand this
16 Tribunal in good stead and will set a benchmark for the
17 way in which documents can properly be admitted, using
18 those features that I have adverted to in so doing.
19 I know through having discussed it with him that my
20 learned friend Mr. Ackerman has a formulation which he
21 would wish to suggest to your Honours, because, of
22 course, this is a matter of general importance, not just
23 to the defendants Mucic and Delalic, but to all
24 defendants, not just in this trial but to others as
1 What we say is that your Honours should reject
2 what is an unjust and unworthy system which you are
3 invited to take on board by the Prosecution.
4 Your Honours will be relieved to know that I am not
5 going to take you through document after document,
6 line by line. I am not going to do that. I am simply
7 going to pick one example in order to illustrate that
8 which I have been saying. It is document 130. The
9 Prosecution make great play of this document. The
10 reality is that there is no evidence whatever that that
11 document was created by Zdravko Mucic. There is no
12 evidence that it is a genuine Bosnian Consulate
13 document. There is a perfectly simple way to do that.
14 JUDGE JAN: The consul is not Republic, or is he a counsel,
15 or is he a diplomatic officer?
16 MR. GREAVES: A consul is entitled to the protections of the
17 relevant convention that deal with diplomats.
18 JUDGE JAN: I was just wondering whether the consul in this
19 document, is he just equivalent to Republic and not to
20 anywhere else?
21 MR. GREAVES: I have not a clue, and I am not going to give
22 evidence, your Honour. It is undated, and I think that
23 was something that your Honour Judge Jan pointed out,
24 that there is no date on this document. If it is a
25 genuine document, that is rather curious, civil
1 servants, of course, being notorious for putting dates
2 on things. This document could have been created at any
3 time or by anybody, and here is an important fact, it is
4 addressed to the 4th Corps at Mostar. You have heard
5 about the 4th Corps at Mostar. General Pasalic knows a
6 little bit about the 4th Corps at Mostar. He could have
7 been asked about this document and he was not. Of
8 course, there is a contrast here with the custodian of
9 records, Mr. Omerkic. Your Honours, I am told we are due
10 to have another custodian of records this afternoon.
11 The contrast between the process of calling a custodian
12 of records and shoving a load of documents in front of
13 you you may think is rather noteworthy.
14 The document was not found in Mr. Mucic's
15 possession. He was never asked about it in interview
16 and he could have been. Those are points which apply to
17 pretty well every document, with perhaps a couple of
18 exceptions in this case. There were some, of course,
19 which Mr. Delalic was invited to examine and admit. By
20 themselves, they are pretty innocuous, but these are
21 comments that we say apply pretty well equally across
22 the board. There is not a scrap of evidence of
23 authenticity and reliability. We say the whole exercise
24 is flawed, Prosecution has not even bothered to try and
25 suggest that they are authenticating these in anything
1 like a proper manner.
2 Well, that is pretty well all I have to say.
3 There is one final thing concerning the videos. If you
4 think they help the Prosecution, of course that is a
5 matter for you. We submit they are of absolutely zero
6 relevance and zero probative value and if they do have
7 any of those qualities, they have precious little
8 weight. The Prosecution wants to play pictures of Zara
9 Mrkajic, plump and well fed, a prisoner in the camp;
10 that is their affair. We say they are of precious
11 little assistance in this case.
12 Your Honour, those are my submissions. We
13 respectfully invite you to reject this process. It is
14 an unjust one, it is unfair, and the case of Mr. Ramic
15 demonstrates that absolutely and clearly. We say that
16 is how they should have done it, they ducked it. It is
17 an unjust way in which they are inviting you to deal
18 with these documents. I invite you to say, "we are
19 going to resist that, we are going to set a proper and
20 necessarily high standard for the admissibility of
21 documents and leave this Tribunal a sound basis which
22 others can follow for the admissibility of documents in
23 a proper and disciplined way". Thank you very much,
24 your Honours.
25 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Greaves.
1 MR. ACKERMAN: With the leave of your Honours, I will just
2 address you from here, because I expect to be quite
4 JUDGE KARIBI-WHYTE: Yes, you can.
5 MR. ACKERMAN: Thank you, your Honour. When I began to think
6 about these documents, about three things came to mind.
7 The first of those, of course, being an advocate, was
8 the interests of my client. But to a great extent, this
9 issue goes significantly beyond that. The law has
10 always been a very important thing to me, something that
11 I have learnt to love throughout my career, and my
12 career has taken me to a lot of different places in
13 that, including a place very similar to where
14 your Honours are sitting this afternoon. For there to
15 be a rule of law, there must be a public respect for
16 law. That is what makes the rule of law possible.
17 As I then began to think about that, I began to
18 think about what the role of your Honours is with regard
19 to this issue and the role of this Tribunal. The
20 Tribunal, of course, needs to be seen by the world as a
21 place where fair trials can be had. Your fellow judges
22 on this Tribunal in handling future cases are entitled
23 to the wisdom and guidance of you original judges from
24 this Tribunal as they approach the work that they will
25 have to do here.
1 One deficiency that I think is clear as you look
2 at the decisions of this Tribunal so far is a clear and
3 comprehensive decision regarding how this Tribunal
4 should handle documentary evidence. Documentary
5 evidence is a very complicated and difficult evidence
6 issue, one which courts across the world have dealt with
7 for centuries in different ways, and it is an issue
8 which has evolved as our society has become more and
9 more dependent upon paper and communication through the
10 use of paper, and now we are approaching the electronic
11 age and in the electronic age, where all sorts of
12 questions regarding computer records and things of that
13 nature are becoming important, in terms of documentary
15 I think this Trial Chamber should be willing and
16 is certainly capable to take some time and to draft for
17 your fellow judges and the future judges here, and for
18 notice of the world community, a comprehensive set of
19 rules by which you can arrive at a decision about the
20 documents that are before you today. It is something
21 you will necessarily have to do for yourselves in going
22 through this process, in any event. I would hope that
23 you would decide to share it with your fellow judges and
24 future judges.
25 I know from my own experience that one of the
1 great enemies of a judge is expediency. You tend to be
2 sitting on a particular case and become so wrapped up in
3 that particular case that expediency begins to take on
4 an importance that it never deserves, but the temptation
5 is always there, and it is one that we must all resist.
6 Even in the lowest court, when a judge speaks of
7 the law, the judge always speaks beyond the case before
8 him, always speaks beyond the case before him, and when
9 you speak of the law in this case, you are speaking
10 beyond the Celebici case. You are speaking to your
11 fellow judges, you are speaking to history, because in
12 an International Tribunal, we all must recognise what we
13 do here as having historical significance.
14 We sit here 50 years later and we can read what
15 those judges at Nuremberg and those judges at Tokyo did
16 and wrote and said, because it is important and it is
17 published and it is available. Some of those decisions
18 and pronouncements look pretty good 50 years later; some
19 of them do not stand the light very well at all.
20 When we talk about documentary evidence, pieces of
21 paper sought to be introduced in a case as evidence in
22 the case, we are virtually in every case speaking of
23 evidence that is hearsay. They contain out of court
24 statements offered for the proof of their contents.
25 That is the classic definition of hearsay. So you
1 always begin, in my mind, an analysis of documentary
2 evidence with that view, the document that is being
3 offered before you is hearsay.
4 One of the things about hearsay evidence, and the
5 reason that the law is so careful about admitted hearsay
6 evidence, is the understanding that it cannot be
7 cross-examined, and with that understanding, the
8 statements of the declarant contained in those documents
9 must have such circumstantial guarantees of
10 trustworthiness that the court can say cross-examination
11 would not affect it in any way. It is so golden as it
12 stands that cross-examination is not necessary.
13 These documents, I submit, your Honours, need to
14 be viewed in exactly that light, so the first task that
15 you must perform is you look at them as hearsay, which
16 is what they are, and determine whether there are
17 circumstantial guarantees of trustworthiness that would
18 make cross-examination a futile exercise. If you find
19 that there are not, then your inquiry ends at that
20 point. There is no need to go beyond there. If you
21 find those circumstantial guarantees of truthworthiness
22 do exist, then you must go next, I suggest, to the
23 question of authenticity.
24 I think authenticity is sometimes difficult in
25 application but rather simple in understanding. A
1 document is authentic if it is what the proponent of
2 that document says it is; in other words, if I hand you
3 a piece of paper and say, "this is the front page of
4 today's New York Herald Tribune -- International Herald
5 Tribune", if there is proof it is what I say it is, then
6 it is an authentic document. If I hand you a piece of
7 paper found on Mr. Moran's desk which contains what
8 appears to be his signature and say to you
9 "your Honours, this is a letter written by Mr. Moran",
10 by that I have not authenticated that document, I would
11 have to go beyond that, I would have to find a witness
12 that watched him sign it, I would have to find an expert
13 that could compare the handwriting, I would have to find
14 some other evidence that I could present to you to make
15 that document authentic.
16 If, as you look at each of the documents in this
17 case, you must conclude that the Prosecutor has failed
18 beyond a reasonable doubt to prove to you that the
19 document is authentic, then that is where your inquiry
20 ends. It does not go beyond there. If on the other
21 hand you find that there is proof beyond a reasonable
22 doubt that the document being offered to you is
23 authentic, then you must perform a third and final
25 That third and final analysis has to do with the
1 concept of relevancy and probative value. The question
2 that you ask yourselves in that case is, "do the
3 statements contained in the document tend to make an
4 issue contained within the indictment in the case that
5 needs to be proved beyond a reasonable doubt either more
6 probable or less probable?". If it does, then it has
7 relevance and probative value; if it does not, then
8 again your inquiry ends and the document is not
10 It seems to me that the process I have just
11 described is one that in one form or another any judge
12 must go through in terms of deciding on whether or not
13 documentary evidence is admitted into a case. I would
14 hope, and I would strongly suggest to your Honours, that
15 you apply that kind of an analysis to these documents,
16 but also take some time to express your wisdom in that
17 regard in writing so that future tribunals, future
18 prosecutors, future defence lawyers will have a guide to
19 help them prepare their cases. Thank you very much for
20 your time.
21 JUDGE KARIBI-WHYTE: Thank you very much. Any other
23 MS. RESIDOVIC: Your Honours, we have been participating in
24 this very important difficult trial, which is being
25 watched by the world, since 10th March, and all people
1 interested in justice are watching us, whether we are
2 correctly establishing the facts, whether we are
3 contributing to the development of law and justice. My
4 distinguished colleagues have drawn your attention to
5 the provisions of the Statute, Articles 20 and 21, and
6 I must say with satisfaction that taking part in these
7 proceedings until quite recently as an attorney, the
8 Defence counsel of my client, Mr. Delalic, I was
9 absolutely satisfied in the way in which this Trial
10 Chamber has been conducting the proceedings and seeking
11 to ensure and protect the rights of all the accused,
12 including my client.
13 However, this week we have been confronted with a
14 very difficult task that my learned colleagues have
15 drawn the attention of the Trial Chamber to with
16 abundant arguments. As the Defence counsel of
17 Mr. Delalic, for which the Prosecutor is offering
18 evidence claiming that it is relevant, in a method which
19 is inappropriate to the proceedings so far and it puts
20 us in a very difficult position.
21 Submitting one document after another, the
22 authenticity of which was not proven in any way, whose
23 probative value was not proven, a document for which my
24 client could not cross-examine the witness and implement
25 his rights guaranteed by Article 21, we almost accepted
1 this procedure, and responded to each of the documents.
2 We have a large number of documents before us. We
3 are ready, if you consider that to be the appropriate
4 procedure, that is the kind suggested by the
5 Prosecution, rather than the one described by my
6 colleagues, we are ready to argue each individual
7 document, but not in the way the Prosecutor is
8 suggesting; that is to compare an unauthentic text with
9 highly doubtful value with another unauthenticated text
10 of a similar value, but rather by grouping some of those
11 documents to draw the attention of the Trial Chamber to
12 the extent to which they are not authentic and how
13 problematic their reliability is and what little value
14 they have, and which does not compare at all well with
15 what we have been doing ever since 10th March.
16 Since we have before us a considerable number of
17 documents, which we would refer to if that is your
18 decision, in that case, I would ask that my colleague,
19 Eugene O'Sullivan, and myself could share and divide
20 between us our arguments. We would be forced to analyse
21 the documents in a way which we do not consider to be
22 appropriate, but if that is in the interests of our
23 client, we will do that.
24 Before you give us instructions as to the way in
25 which we should proceed, I should like to draw your
1 attention to two points only. Within the series of
2 documents that my learned colleague Mr. Niemann has led
3 us through very skilfully, we heard many facts about
4 the war, we heard many facts about Mr. Delalic, we
5 learned about other facts conveyed by hearsay without
6 any possibility of checking what was said. Forgive me
7 for reminding you of something, which I do not like an
8 attorney to do, because I objected when this was done by
9 my colleague Mr. Niemann.
10 Your Honours, I was in the war for four years,
11 I spent four years in a city under siege, and every day
12 I experienced thousands of facts brought by war, weapons
13 and shooting and wounding and the exile of my own
14 children, and during those four years, we never shed any
15 tears. A few days ago I saw a wonderful film by Ademir
16 Kenovic, awarded in Cannes. That film put into two
17 hours many facts from the lives of us, 300,000
18 inhabitants of Sarajevo. Not one of those was truthful,
19 but it reflected some of the truth of the war, and we as
20 spectators were crying.
21 Therefore telling us the stories of many people
22 who lived in Konjic, who fled from Konjic, who came to
23 clubs in Austria, Germany and elsewhere and recounted in
24 their own words about something that happened or may not
25 have happened, that story that we heard in the past few
1 days is not one that I am prepared to eliminate using
2 the same procedure. Something else that perhaps may not
3 be also absolutely appropriate, but Judge Jan drew
4 attention to it, saying that in the course of the war,
5 criminal proceedings were instituted against some of the
6 defendants here.
7 I know that you are not bound by national
8 legislation, but I would like to indicate to
9 your Honours that according to our law, criminal charges
10 are just charges. They are not any condemnation. They
11 are studied by the investigating magistrate and only
12 then is a decision taken to remove any doubts.
13 Therefore, according to our laws, which are quite
14 different from those here, the accused and their
15 relatives cannot testify, and they are not bound to tell
16 the truth. Many of the documents referred to by the
17 Prosecutor may be indicative of a period in which the
18 defendants, the accused, the family or relatives
19 participated in some such proceedings may have written
20 something that may or may not be correct. The
21 Prosecutor has not even tried to prove the reliability
22 of any of those facts or those sources.
23 Therefore, completing this part of my objection
24 before going on to an analysis of each of the individual
25 documents, I wish to say once again that we fully
1 endorse what has been said by colleagues Greaves and
2 Ackerman, so we would like your Honours to give us
3 instructions as to how we should proceed from now.
4 JUDGE KARIBI-WHYTE: I suppose this is a real surprise to
5 me. What I expected you to do was to answer the
6 submissions of the Prosecutor. If you have any
7 shortfalls in them, if you have any criticisms of them,
8 you make them. It is not for me to direct you
9 differently from what has been happening within the
10 Trial Chamber. I thought that was the normal method and
11 that might determine the Trial Chamber's approach.
12 MS. RESIDOVIC: Thank you, your Honours. My colleague
13 Eugene O'Sullivan, if you allow it, and in view of the
14 large number of objections that we will have, he will be
15 the first to make them.
16 JUDGE KARIBI-WHYTE: You are free to argue your case
17 whichever way you want.
18 MR. O'SULLIVAN: Thank you, your Honours. My submissions
19 will be relatively short and with your indulgence I will
20 make them from here.
21 First of all, I will begin by saying that on
22 behalf of Mr. Delalic we adopt in toto previous
23 submissions made by Mr. Greaves and Mr. Ackerman. I will
24 begin myself with a general observation referring first
25 to your decision of 12th September, where you ruled that
1 the chain of custody of the folders had been proven, but
2 not the contents of those folders. As we have heard so
3 far, proving the authenticity of these documents is the
4 first and fundamental link and step in proving these
5 documents and determining their admissibility.
6 I would like to remind your Honours of what the
7 record clearly states. My friend Mr. Niemann has said
8 that according to Mr. Moerbauer's testimony he was handed
9 folders by his colleague, Navrat, but the contents of
10 those folders were not analysed, according to
11 Mr. Moerbauer, until 22nd March through 2nd April, when
12 he marked those documents in Vienna, and when he came to
13 this Tribunal he could not identify his mark on any of
14 the documents. Officer Moerbauer was called
15 specifically -- for the specific purpose of identifying
16 those documents. Any suggestion, as my learned friend
17 Mr. Niemann has put before you, that Officer Moerbauer
18 adopted a new numbering system at the request of the
19 Office of the Prosecutor is not borne out by his
20 testimony or the facts.
21 If I might briefly address you now on the issue of
22 videos, three videos in particular, the three allegedly
23 from INDA-BAU. This morning, my friend Mr. Niemann said
24 that the discrepancy of three videos between the 51 and
25 the 54 could be explained easily by the fact that they
1 were miscounted. Might I remind your Honours that the
2 record is quite clear. The witness Navrat was led
3 through examination-in-chief by Mr. Niemann on
4 5th August. Officer Navrat, in Exhibit 165, a
5 Niederschrift, clearly testified to the fact that he
6 seized 51 videos, page 5644, his hand-written
7 Niederschrift attests to that.
8 Mr. Niemann never doubted or questioned Mr. Navrat
9 to ask him if that was a correct number or not.
10 Mr. Navrat stood by that number. In fact the only thing
11 Mr. Niemann questioned Mr. Navrat about was the
12 correctness of the date on the Niederschrift, to which
13 Mr. Navrat admitted there was an error. Therefore there
14 was no questioning of Navrat to ask him to acknowledge
15 that the number of 51 videotapes was incorrect.
16 Mr. Navrat in cross-examination confirmed that the
17 operation was well manned, there was no pressure, there
18 was no hurry, there were no complaints and no incidents.
19 Mr. Navrat's report of 18th March again confirms
20 that there were 51 videotapes seized. The second
21 relevant point in the testimony of Officer Panzer, again
22 led by Mr. Niemann on direct examination on
23 2nd September, shows that in the report prepared by
24 Panzer, 22nd April, there are 54 videotapes, 54
25 videotapes which according to Panzer he marked on
1 19th and 20th March, and the first indication that there
2 is a discrepancy in numbers is this report of 22nd April
3 1996. It is clear therefore that there is a discrepancy
4 of three videos, but any suggestion there is an error in
5 counting is not borne out by the facts.
6 Might I remind your Honours of the transcript at
7 page 3779; if I go back to that date, that is the
8 cross-examination of Mr. Moerbauer by my learned friend
9 Mr. Moran. Here is why I raise this point with you. At
10 that page, 3779, line 10, Mr. Moran asks Moerbauer:
11 "It is not hard for a trained police officer to
12 count from 1 to 51, is it?"
13 At that point, Mr. Niemann objected. At the bottom
14 of that page, beginning at line 22, Mr. Niemann said:
15 "It is absurd to be putting these questions to
16 this witness. Counsel knows the answer clearly.
17 Everybody else in this courtroom knows the answer."
18 With all due respect to my friend Mr. Moran,
19 I agree with the Prosecutor. Police officers do know
20 how to count.
21 My final remarks on these videos is the point
22 raised on having shown a video to a witness that has
23 taken place in this courtroom. Of course, that proves
24 absolutely nothing with regard to the provenance of a
25 videotape. More specifically, the portion of video
1 shown to Dr. Grubac and Dr. P, interview conducted, is
2 Zvonko Maric and Jadranka Milosevic; your Honours, the
3 original footage shown to these two witnesses was
4 provided to the Delalic Defence by the journalists
5 themselves, by Maric and Milosevic. Indeed it was the
6 Delalic Defence who provided that videotape through
7 discovery to the Prosecution. That does not -- that is
8 not footage from the tape I46. That was provided by the
9 Defence to the Prosecution.
10 So to sum up, your Honours, there is no confusion
11 on the part of the police. The record is clear. They
12 can count, they did count, they counted differently.
13 These videotapes therefore have not been authenticated,
14 the relevancy is not shown and they are of little or no
15 probative value and for those reasons we respectfully
16 submit that they should be excluded from evidence.
17 The second point I would like to briefly address
18 your Honours on is in relation to Exhibit 130, which my
19 friend Mr. Greaves made the central document to his
20 submissions. I will not repeat the Articles and the
21 Rules to which he referred, those being 21, 20, Rule 89
22 and Rule 95, but I would add just one point with regard
23 to the position of Mr. Delalic in this document. This
24 document, of course, purports to be a letter of
25 Mr. Mucic, which allegedly presents an account of matters
1 in 1992. We say that if your Honours should rule this
2 document admissible, and should you decide that it is
3 Mr. Mucic's document under Article 21(4)G, Mr. Mucic, of
4 course, cannot be compelled to give testimony and the
5 consequence of that for Mr. Delalic is that under Article
6 21(4)E Mr. Delalic is deprived of his right to
7 cross-examine. Similar argumentation given by
8 Mr. Greaves on the general nature of this, I wish to
9 reiterate it on behalf of Mr. Delalic, that the
10 admissibility of this document would gravely impact upon
11 his rights under Article 20 and Article 21, and
12 therefore we respectfully submit that this Exhibit 130
13 should be excluded on the basis of Rule 89 and Rule 95.
14 At this point, my learned colleague
15 Madam Residovic will continue.
16 MS. RESIDOVIC: With all due respects, your Honours, I wish
17 to remind you that making my objections up to document
18 125 as submitted by the Prosecutor, I presented the
19 arguments why these documents should not be admitted
20 into evidence. Appreciating the time devoted to this
21 important issue, and in order to avoid repeating with
22 respect to each document which is beyond doubt and
23 clear, I wish in connection with all the other
24 documents, before passing on to more specific
25 objections, I wish to say the following: first, the
1 Prosecution has not managed to prove that any one of the
2 documents offered to the court comes from the search in
4 Witness Moerbauer, as you will recall, and the
5 Prosecution referred to his testimony, indicating the
6 pages and lines of their testimony in the transcript,
7 said only that he had received from witness Navrat some
8 binders, and this witness later, several days after
9 having received this cardboard box from witness Navrat,
10 analysed those documents, and all that we have in the
11 testimony of this witness is the Bericht, or rather his
12 analysis, dated 22nd and 26th April, when he submitted
13 that analysis to the Austrian court. Therefore the
14 period from 18th March until the end is a period within
15 which we are unable closely to follow the fate of the
16 folders, and still less of the contents of those
18 In accordance with your instructions,
19 your Honours, which I referred to earlier on, the
20 Prosecution also called the witness who seized the
21 evidence from INDA-BAU. Witness Navrat stated clearly
22 that he did not on the spot mark a single document.
23 This witness did not recognise any single document, and
24 furthermore witness Moerbauer, who did the analysis,
25 testified before the court that all the markings that he
1 personally put on the documents during his analysis had
2 disappeared, and that he personally was unable to
3 recognise here in court any one of those documents,
4 because he does not know Bosnian, because he could not
5 find his markings, and he never had any expert analysis
6 of any handwriting.
7 Therefore the first question that applies to all
8 the documents proposed by the Prosecution is that the
9 Prosecution has not in any way provided proof of the
10 source of these documents, that is the place from which
11 these documents come. Regarding the authenticity of
12 documents, it is also necessary for the Prosecution to
13 show us who is the author of which document.
14 Unfortunately, in a very lengthy analysis of individual
15 documents and comparing them with others, the
16 Prosecution has failed to provide a single element of
17 proof which could confirm in a method that would be
18 appropriate who is the author of any one single document
19 being offered.
20 I shall now try to group some of those documents,
21 but before that, let me say with respect to documents
22 that I cannot put in a group, let me comment on them
23 first. A document that I have not commented on was
24 document 127. Could I please be allowed to analyse that
25 document? You know that it is an order dated 3rd June
1 1992, containing certain facts in connection with the
2 establishment of a railway line, and traffic along it.
3 Comparing this document with other documents, the
4 Prosecutor is trying to lead you to believe that the
5 co-ordinator has certain command authority. I should
6 like to remind you of the testimony of General Divjak,
7 who was shown this document, and who made a distinction
8 before you here, between Neretva and Naredjenje and
9 order and command, and then also stated clearly that the
10 signature and function of co-ordinator does not have any
11 value as an order or any authority to issue orders, that
12 the co-ordinator is only a person who mediates and can
13 sign a document in that capacity.
14 I also wish to draw your attention to a document
15 admitted by this Trial Chamber, and issued by the
16 supreme staff of Bosnia-Herzegovina and signed by army
17 general Rasim Delic, according to which a co-ordinator
18 in the armed forces of Bosnia-Herzegovina does not have
19 any command, but only an mediatory role. The command
20 function rests with the bodies which appointed that
21 co-ordinator. In view of the fact that there is no
22 thread, that the Prosecutor is referring to, this
23 document has no relevance with regard to the position of
24 my client and particularly not any relevance to the
25 indictment that is before the Trial Chamber.
1 Therefore, regardless of where that document comes
2 from, and I have already said that we do not know the
3 source, nor do we have any evidence to prove that it
4 comes from INDA-BAU, this document has no probative
5 value, nor relevance with respect to the indictment, its
6 relevance is zero.
7 The next document which the Prosecution try to
8 prove the authenticity and reliability of is document
9 128. If you recall, your Honours, it is the request for
10 conducting investigations against Mr. Zejnil Delalic and
11 Mr. Zdravko Mucic, and as you will also recall, this
12 document, as well as the criminal charges recognised by
13 General Pasalic, was tendered for its limited scope,
14 that is from the position of the functions held by those
15 persons. Allow me, your Honours, unlike the Prosecutor
16 who tried to prove the limited probative value of this
17 document, he linked it with other documents pursuing the
18 thread as my learned friend likes to say; let me add the
19 following: precisely in connection with that limited
20 scope, not only of this document but also of the
21 documents number 137, 141 and 125, and these are --
22 I apologise, my client has just had a suggestion to
23 convey to me and I apologise for the interruption.
24 This document linked to these other documents,
25 that is numbers 125, 141 and 137, show exactly to what
1 extent these documents would be unreliable even within
2 their limited scope; namely, can these documents show at
3 all what position and function was held by my client in
4 the relevant period. If you remember the document
5 report to the general staff which was shown to General
6 Pasalic, in which certain positions were indicated, you
7 will see immediately that in that document the person
8 who will later be used as one who could authenticate a
9 document, that is Edib Saric, that person is mentioned
10 in the document as assistant commander, and in the
11 document that has been admitted into evidence we will
12 see -- that is the document dated 14th August -- Edib
13 Saric appears as a person appointed as deputy commander
14 of Tactical Group 2, the commander of which is Husein
16 Then we see again that this name appears on
17 20th August as assistant for security affairs in the
18 temporary command group JUG, and then in the exhibit of
19 the Prosecutor dated 24th November 1992, this same
20 person appears as assistant commander in the operative
21 group. When all these documents were shown to the
22 witness General Pasalic, he stated that when he was
23 compiling the report for the supreme command on
24 7th December he had no documents or evidence as to the
25 functions and positions held by individual people listed
1 in this document. Therefore, this document in itself
2 cannot be indicative of the positions and functions of
3 any one of those persons mentioned in the document or
4 any others.
5 Document 128 is quite in contrast with the claims
6 in the criminal charges identified by General Pasalic as
7 criminal charges submitted by the 4th Corps. No one --
8 comparing these two documents alone, you will see,
9 your Honours, that the position of Mr. Delalic on
10 31st May is quite contrary to the position indicated in
11 this document, and later on in the document dropping
12 charges, that same function will not appear. Therefore
13 the reasons why this is being offered as relevant
14 evidence are also highly problematic, and the relevance
15 of these documents outside that limited scope does not
16 exist with respect to the charges contained in the
18 Your Honours, shall I continue or would it be
19 convenient to have a break now before going on to the
20 next document I wish to comment on?
21 JUDGE KARIBI-WHYTE: I think we will have a break and come
22 back at 4.30.
23 (4.00 pm)
24 (A short break)
25 (4.30 pm)
1 JUDGE KARIBI-WHYTE: Ms. Residovic, how much longer are we
2 to expect you to address us, because we are not sitting
3 tomorrow, and we are likely to be off for quite some
5 MS. RESIDOVIC: Your Honour, as you put it yourself, and
6 the Prosecutor also mentioned it, these are important
7 documents. As I said, I am going to attempt to group
8 the documents and present them in that manner. I know
9 that you are not asking this question to limit me in any
10 way, but at this point, I cannot tell you precisely how
11 much time, but what I am going to try to do is to group
12 the document and to be very concise in presenting my
13 arguments and only where I must -- where I feel I need
14 to be present an individual document, I will do that.
15 I am sorry that I cannot give you a precise answer.
16 This will take a while. I would like to finish it
17 today. However, if I do not manage to do that, the
18 arguments will have to continue thereafter.
19 JUDGE KARIBI-WHYTE: I was just trying to alert you as to
20 what perhaps you might face in terms of time. It is not
21 to compel you to change your style, but just to make you
22 know what you might face. Mr. Ackerman?
23 MR. ACKERMAN: Your Honour, may Ms. McMurrey have leave to
24 depart at 5.10? She has some obligations outside the
25 Tribunal she needs to deal with.
1 JUDGE KARIBI-WHYTE: She is free to be discharged.
2 MR. ACKERMAN: Thank you.
3 MS. RESIDOVIC: Thank you, your Honour. May I continue
5 JUDGE KARIBI-WHYTE: Yes, you may.
6 MS. RESIDOVIC: Thank you. My presentation hereafter is
7 facilitated by the fact that the majority of the legal
8 arguments which I had in mind have already been
9 presented by my colleagues, and as I pointed out before,
10 I will just try to point out some of these arguments in
11 connection with the groups of documents that I am trying
12 to present. The Prosecutor presented as evidence a
13 number of documents that have a look of official
14 documents. I have only analysed some of them. As my
15 learned colleague Greaves said, I would like to restate
16 some of these things in regard to these documents. We
17 do not know where they come from. We do not know their
18 authenticity, whether it is real or not.
19 There is only one way to determine this, to call
20 the representatives of the institutions as we have
21 already tried the best we could in cases of some
22 documents by certain Bosnian authorities; in other
23 words, we would like to call the representatives of
24 these institutions before this Tribunal, so that they
25 may be able to authenticate these documents. As I said,
1 I do not need to repeat the stamp and everything else
2 that surrounds this document. This is not possible to
3 fabricate, forge. Some of these documents are in
4 handwriting. There are quite a few of such documents,
5 I have not counted them, but among the ones that we have
6 not presented arguments on, there are nine, and I do not
7 wish to analyse these nine documents for you,
8 your Honours, and show for each one that the thread
9 referred to by the Prosecutor, with respect to their
10 authenticity, exists or not.
11 The position of the Delalic Defence is that this
12 thread does not exist. With respect to the remaining
13 hand-written documents, I will remind you of the
14 arguments by my learned colleagues which point out that
15 some of these hand-written documents, for some of these
16 documents the Prosecutor claims that they were written
17 by some third persons and for some documents, he is
18 trying to say that they were written by my client. He
19 has not shown who actually wrote these documents or
20 those submissions or those papers, or parts thereof. He
21 has not demonstrated in any real way where these
22 documents come from, where they were compiled. He did
23 not show what the value of these documents is or who
24 they belong to.
25 From all these documents, I am only going to point
1 out two. One of them is the document 126, which was
2 written 27th April 1993, according to the document.
3 This is the document which was created much later than
4 the events that are covered in the indictment. The
5 value that the Prosecutor sees in this document is that
6 it speaks to the conflict of the HVO and the BH, the
7 possible development, possible agreement of Milosevic
8 and Tudjman, of the possibility of certain events
9 happening, so there are no references to my client
10 whatsoever; there are no references in it to the charges
11 against my client or any other client in the indictment,
12 and there is even a further problem with this document.
13 If you look at the first paragraph, it speaks of
14 some persons who allegedly went to Czechoslovakia, so we
15 could rightly ask; does this document come from
16 Czechoslovakia? Was it created there and somehow found
17 its way to the Prosecution and was presented here?
18 The next hand-written document is the document
19 131. You will recall this document, it is entitled "The
20 Adventurer". Could the technical booth please display
21 this document 131 in its Bosnian version, so that we
22 could see how these documents look, these documents
23 presented by the Prosecution, with the intent to show
24 its authenticity and reliability.
25 My colleague Ackerman made an example of how such
1 a document could be found in a garbage bin, where
2 somebody could have put down in writing his musings, and
3 the Prosecution shows us this document, not only
4 analysing it but contending that this document was
5 written, which was written in the third person singular,
6 written by the deputy commander of Tactical Group 1, and
7 I would like the next page of this document to be shown,
8 please --
9 JUDGE KARIBI-WHYTE: Do you think we need to go through this
10 exercise? Do you think it is necessary? You may if you
11 wish, but I do not think it explains more than has been
12 explained before now.
13 MS. RESIDOVIC: Your Honour, I am talking about the threads
14 pointed to by the Prosecutor and I think that the
15 Prosecutor had enough time to present these threads in
16 the last three days. I am hoping that I will be able to
17 present my arguments very concisely. I would only like
18 to show these two hand-written documents, and I think
19 that I can draw several conclusions and arguments.
20 I will bear in mind your remark not to repeat things,
21 but I would just like to make things more concise and
22 clear. I think that this was the nature of your remark
23 to me now, and I am grateful for it.
24 May I continue, your Honour?
25 JUDGE KARIBI-WHYTE: Yes.
1 MS. RESIDOVIC: The document as we are showing now -- and
2 the argument if a knife or a bullet could be found, and
3 I do not think that this is either a knife or a bullet
4 situation, I think that analysis and expertise would
5 have to be made to authenticate who compiled this
6 document. In connection with the documents that are in
7 the handwriting, I know that my colleague Mr. Niemann
8 knows the geography of the Balkans much better than
9 I know the geography of Australia, but his remark when
10 he tried to compare in this document the mention of
11 Donje Selo, this is compared to the document in Dugo
12 Selo, there was a barracks there. This barracks was in
13 Dugo Selo, it is in Croatia, it is a different country,
14 and Donje Selo is a geographic settlement that was in
15 the Neretva river valley, part of the Konjic
17 So we cannot accept those kinds of arguments as
18 authentic and as credible. I am trying, your Honour, to
19 only point to certain documents and to point out a
20 larger general problem in the entire argumentation, but
21 not to interconnect these documents with other documents
22 and other facts. These are all facts in the transcript
23 and in evidence.
24 The next group of the documents relates to the
25 contention of the Prosecutor that the authenticity and
1 reliability of these documents -- that my client
2 Mr. Zejnil Delalic did recognise some of the documents
3 presented. This is the order of 11th July, because
4 there was a certain lengthy debate that surrounded this
5 document, and it was not shown to my -- the document
6 that my client was shown was not from INDA-BAU but from
7 Munich. It was 1290. This was a fax that came from
8 Munich and it points to the difficulties of
9 communication between Sarajevo and the region where my
10 client was.
11 Another document from the group that was shown to
12 my client have not been offered here to this Trial
13 Chamber, and from the transcript of these questioning in
14 Scheveningen, it shows that I have submitted personally
15 this document on behalf of my client, so I am pointing
16 to this document as -- all this points to the fact that
17 all documents offered in this group have such limited
18 value of authenticity that they cannot be offered in
20 During the seizure of documents, over 12,770
21 documents were seized. Mistakes were made during the
22 seizure and transfer of documents. Some documents were
23 photocopied and taken away without a court's approval,
24 and there are testimonies by Moerbauer, dHooge and
25 other Austrian policemen which were brought to testify
1 here, and the Prosecutor himself does not know the
2 provenance of some of the documents that found their way
3 into the files.
4 I am pointing, your Honours, to the statement of
5 the witness Panzer when he was cross-examined by my
6 colleague with respect to the green file folder. The
7 witness Panzer said:
8 "My colleague Moerbauer and I made this green
9 file folder. We put there different papers and there
10 were a number of them."
11 I remind you, your Honours, that in the
12 Niederschrift from INDA-BAU, where allegedly all these
13 documents were marked, it states that 12 file folders
14 were taken there. There are no loose papers there and
15 the testimony of Panzer before this Tribunal clearly
16 points that there is no reliable way to test reliability
17 of this evidence, of these documents which would have to
18 have a certain amount of relevance.
19 In conclusion, your Honours, I would like to point
20 out some documents which have been tendered here and
21 offered in evidence. The Prosecutor offers as a
22 document that was already recognised by my client a
23 booklet on the Green Berets, and also a letter which he
24 does not know whether it was found in the Prosecution
25 files in the original or not. He says that the
1 organisation was founded in 1994, and the document
2 clearly gives the date of 15th January 1992. So it is
3 clear that this document has no value, without being
4 submitted to the kind of test that my colleagues have
5 talked about.
6 There is another document that my client has
7 allegedly recognised. This is regarding his membership
8 in the SDA, and in the interview in Scheveningen, my
9 client is explaining the situation that the club in
10 Vienna is no political party. Witness Panzer confirmed
11 this, because he said that no foreign political parties
12 can be active in Austria. A copy of this document,
13 dated 18th March, shows again how unreliable this
14 alleged "thread" that the Prosecutor talks about is,
15 because according to the testimony of witness Panzer,
16 who said that he immediately placed these documents
17 under lock, Mr. Moerbauer who copied a few things and
18 Mr. dHooge, they all said that nobody put any markings
19 on it, and there is a date of 18th March on it.
20 Is it possible that another document from Munich,
21 where my client was arrested that day, and where it was
22 possible that this membership card would be, could it be
23 that this document could be placed -- of that date could
24 be placed on a document then? So it is again very
25 obvious that the reliability of this document is very
2 Then we have a copy of a questionnaire, who when
3 asked by my colleague Eugene O'Sullivan was not able to
4 be authenticated. It was not clear whether it was a
5 copy which was attached to another document, and
6 apparently there are a number of facts displayed there
7 that are supposedly true. The Prosecutor had to have --
8 the Prosecutor did not prove any facts from this
9 document, whether that my client was decorated with the
10 fleur-de-lis, whether he spoke Romanian, et cetera
11 et cetera. So this document could have been compiled at
12 any time.
13 Your Honours, I wholly agree with the arguments
14 presented by my colleagues, and I am sure that in the
15 interests of right and justice you will come to the
16 conclusion that the Prosecution was unable to prove the
17 reliability and authenticity of these documents, that
18 the Prosecution, for all these documents, has not proven
19 their relevance and their probative value. All this,
20 based on Rule 89 and Rule 95, I move that these
21 documents as proposed by the Prosecutor not be admitted
22 in evidence.
23 JUDGE KARIBI-WHYTE: Thank you very much, Ms. Residovic.
24 Mr. Moran, have you anything to say?
25 MR. MORAN: Yes, your Honour. If it please the court,
1 I would like to divide the argument into basically four
2 areas. The first thing is I would like to wax a little
3 bit eloquent, like my friends Mr. Ackerman and Mr. Greaves
4 did, about the evidence; then I would like to go to a
5 little bit about the threads that the Prosecutor has
6 talked about, and I will show you why the threads are
7 not there; then there are three or four individual
8 documents, I will discuss why they should not be
9 admitted, at least against my client Mr. Delic, and
10 finally I would like to have about two minutes of the
11 court's time on a personal matter. With that I begin.
12 The Prosecutor has talked about the court being
13 made up of professional judges and that you can sort it
14 through and throw out what you want, and has cited a
15 couple of times the Krupp case, which is one of the
16 post-World War II tribunals under control counsel law
17 10. Given Judge McDonald's plurality decision in
18 Erdemovic, I do not know how much precedential value any
19 of those control counsel 10 cases have, but that is
20 neither here nor there.
21 My discussion is this: all of the post-World War
22 II tribunals, Nuremberg, Tokyo, the control counsel 10
23 cases and the Yomashada case operated under a set of
24 rules of evidence that were imposed upon the judges by
25 an outside source, and they were all fairly identical.
1 Basically, you could look at the rules -- and they are
2 set out, the Yomashada rules are set out in a footnote
3 in that case, the rules of evidence, and basically it
4 said anything the Prosecutor wants to come in can come
5 in. He could use sworn depositions, even though there
6 was no right of cross-examination. The judges were
7 required to admit as substantive evidence any report by
8 a government agency of any government of the then
9 United Nations, which refers to the allies in World War
11 In fact, in the Nuremberg case, that evidence was
12 used to admit a report from the Soviet government into
13 the murder of 10,000 Polish officers which the Germans
14 were charged with doing, and in fact a few months ago
15 President Yeltsin said the Russians had done.
16 Those rules of evidence, which by the way were
17 imposed on the American zonal courts, control counsel 10
18 courts, under Ordinance 7, were strongly criticised,
19 I believe it was the hostages case, it may very well
20 have been the List case, where the court essentially
21 said, "you can admit this stuff, but you cannot make us
22 give it any weight. It is our business how much weight
23 we give it". I would suggest, especially in the light
24 of Yomashada, which was not one of the greater days for
25 the Supreme Court of the United States, that when the
1 Security Council set up this Tribunal, it adopted
2 Article 15 of the Statute, which instead of imposing
3 rules of evidence on the court from an outside source
4 said that the judges should be imposing these rules of
6 The court has adopted, what is it, 11 Rules of
7 Evidence in total, that also say that you can look to
8 the national rules of evidence, which brings me directly
9 to document number 130, which purports to be --
10 Prosecution Exhibit 130 purports to be a statement from
11 Pavo Mucic in which he inculpates my client. I do not
12 know whether that is a statement by Mr. Mucic or whether
13 it is not a statement by Mr. Mucic. As to the general
14 admissibility of it, I will leave that to Mr. Greaves and
15 Mr. Olujic. What I would suggest is this: some weeks and
16 months ago, I filed a memorandum of law with the court
17 citing a case called R v Silcott, a British case, and
18 several cases from the Supreme Court of the
19 United States on the admissibility of co-defendants'
20 statements against those defendants. It was done at the
21 time that the custodial statements were admitted some
22 months ago, and I think the holding of the court was at
23 that point that a defendant's statement is admissible
24 against that defendant and nobody else, and I would ask
25 the court to continue that ruling as it applies to
1 Prosecution Exhibit 130.
2 Moving along to Prosecution exhibit -- my notes
3 have it in Prosecution Exhibit 126. This relates
4 directly to a question Judge Jan asked I believe
5 yesterday, or the day before, about the date of creation
6 of Tactical Group 1. The Prosecution exhibit, I believe
7 it is 118, which is the orders assigning Mr. Delalic to
8 command that, show that he was replacing someone else,
9 so we do not know when TG1 was created, but we know that
10 it was probably before 11th July.
11 However, Prosecution Exhibit 128 refers to an
12 incident which occurred prior -- that is a report
13 involving the murder of a man named Bubalo. All the
14 acts occurred prior to July 11th, as laid out in that
15 report, and gives various positions that people held at
16 the time of the incident. Clearly when it says that
17 Mr. Delalic was not -- was the commander of TG1 in June,
18 we know that that is wrong, so these kinds of threads
19 start falling apart when people start pulling on them,
20 judge, these threads of admissibility the Prosecutor
21 talks about.
22 Prosecution Exhibit 129 seems to be some kind of
23 an investigation report. This, I would submit, would be
24 very similar to the report of that Soviet commission
25 into the deaths of the Polish officers at the Nuremberg
1 case. It is totally lacking in reliability. We do not
2 know who did this report, who they did it for; there are
3 three people that signed it, surely one of them can be
4 found in order to come down and testify to those facts.
5 There is no way to cross-examine them.
6 Prosecution Exhibit 131. That is the "Adventurer"
7 letter. There are two problems I see with that letter,
8 and I will suggest this to the court. I am not
9 suggesting anything sinister on the part of anyone;
10 however, every document that we have seen has what we
11 call in America a BATES stamp. It is a serial number,
12 an 8-digit number that appears on every document that
13 the Prosecutor has handed us. The Bosnian original has
14 a set of BATES numbers on Prosecution Exhibit 131, and
15 when you go to the English translation, it lists down at
16 the bottom -- in fact if the technical people could put
17 it up, the English translation, at the very bottom it
18 says, "end of page number" and lists a 7-digit number on
19 the first page, and then on the second page of the
20 English translation of Exhibit 131, it lists another
21 7-digit number at the end of that page. Those numbers
22 are different from the BATES stamp numbers on the
23 original Bosnian document. I cannot explain it. I do
24 not speak Bosnian, and I am just suggesting that the
25 court ought to take a look at that, of the reliability
1 at least of the translation.
2 Prosecution Exhibit 135, I suggest again the
3 Prosecutor keeps talking about these threads of
4 evidence. Prosecution 135 purports to be a SDA Party
5 card issued in Vienna on May 4th 1992 to Mr. Delalic.
6 Wherever Zejnil Delalic was on May 4th 1992, he was not
7 in Vienna, he was in Bosnia, that is what all the
8 evidence is.
9 Prosecution Exhibit 143. We do not know what that
10 is. It purports to be a press release of some kind, a
11 press statement. We do not know who did it, we do not
12 know where it came from, it is not on any kind of
13 letterhead. Prosecution Exhibit 146, the "Hazim" memo.
14 Again, I do not want to speak to the general
15 admissibility of that, but I would object to it being
16 admitted against my client on the theory that (i) we do
17 not know who Hazim is, and although the Prosecutor
18 asserts it is Hazim Delic, but (ii) there is no way of
19 showing he knew of its existence until he arrived at
20 The Hague as a prisoner. We do know for a good portion
21 of the time after December 1992 Mr. Delic was either
22 being incarcerated in a manhole at Celebici or in some
23 other prison, including the Celebici prison and the
24 Musala sports hall and would probably have no way of
25 contacting anyone to learn about this.
1 With that, I would adopt the statements of my --
2 the objections of my friends, and if the court would
3 indulge me for about a minute or two, there is a --
4 JUDGE KARIBI-WHYTE: Going outside the discussion?
5 MR. MORAN: Yes, your Honour. On more of a personal matter.
6 There is a very, very real possibility that I will not
7 be here on November 24th, and I just did not want to
8 leave, with a 50/50 chance I will not be back I would
9 feel horrible if I did not say goodbye to the court. It
10 is a personal and professional thing, having absolutely
11 nothing to do with anyone who is a member in this room,
12 but over the months we have been here, I have learned to
13 admire the court and learned to like them, as we got to
14 know each other better. I would say if I do not return,
15 I would have felt very bad if I did not say goodbye.
16 JUDGE KARIBI-WHYTE: You mean you are doubting whether you
17 will come back?
18 MR. MORAN: Your Honour, there is a 50/50 chance that I will
19 not be returning, based on various personal and
20 professional reasons.
21 JUDGE KARIBI-WHYTE: At this stage I think that is a little
22 unfortunate, if you have got to this stage.
23 MR. MORAN: I understand that, your Honour.
24 JUDGE KARIBI-WHYTE: We will take note of it, but I do not
25 know. We will take note of that situation.
1 MR. MORAN: Again, in the chance that I do not return, I want
2 to wish you all very well.
3 JUDGE KARIBI-WHYTE: We do hope that you return, I think.
4 We will need you to return.
5 MR. MORAN: Your Honour, that makes me feel very good to hear
6 you say that. Thank you very much.
7 JUDGE KARIBI-WHYTE: Mr. Niemann, have you any few areas to
8 touch on?
9 MR. NIEMANN: If your Honours please, if I may first address
10 the question of the general submissions that were made
11 to you by Mr. Greaves and Mr. Ackerman, Mr. Ackerman urged
12 your Honours to look at this whole question of
13 documentary evidence and to provide this jurisdiction
14 with an opinion which could have application and benefit
15 for future cases that would come before the Chamber. We
16 would urge your Honours to do that too, but we would
17 urge your Honours to do it on the basis of the rules
18 that your Honours have developed in the Rules of
19 Procedure and Evidence, and having regard to the
21 This jurisdiction, your Honours, is not the same
22 as a national jurisdiction. It is not correct to say
23 that you should have regard to the rules of evidence of
24 a national jurisdiction when dealing with questions of
25 admissibility. Your Honours are aware that in national
1 jurisdictions, in some national jurisdictions, they
2 vary, difficulties have arisen in relation to documents,
3 and primarily because you are dealing with documents as
4 hearsay. There is no question, your Honours, that a
5 document is hearsay. It is hearsay evidence. It is not
6 correct to say that documents should not be admitted
7 into evidence because it offends the right that may be
8 given to an accused to cross-examine witnesses under
9 Article 21 of the Statute. Of course the accused has a
10 right to confront the witnesses that testify against
11 him, and has the right to cross-examine, but it is a
12 misconstruction, in my submission, to then say that that
13 guarantee applies across the board to all facets of
14 evidence, including documents themselves.
15 Documents are, and have been always recognised as
16 hearsay. They are an exception to the hearsay rule, and
17 in fact, your Honours, in some common law jurisdictions
18 the evolution of the process of dealing with documentary
19 evidence has come about with an enormous amount of
20 legislation which has attempted to ameliorate the old
21 common law provisions that applied to them.
22 Your Honours, the old common law principle of
23 calling the author of the document, and that being the
24 only basis upon which a document is admitted into
25 evidence practically has no application in any
1 jurisdiction in the world any more. There are enormous
2 legislative steps that have been taken since those days
3 when that was the rule of the common law. There are
4 considerable exceptions that go to tendering documents,
5 such as business records provisions, such as computer
6 records, such as the records of government departments,
7 such as official publications, such as certificates
8 issued, and all of these have been dealt with by way of
10 Your Honours devised a set of rules to deal with
11 the admissibility of evidence, and Rule 89 is in very
12 simple terms. You were taken to it by Mr. Greaves, and
13 he said to you that when looking at that Rule
14 your Honours should -- either Mr. Greaves or
15 Mr. Ackerman -- your Honours should devise a set of rules
16 which properly reflect the necessity for you to
17 determine a fair trial, and we would not quarrel with
18 that for one minute. But in this jurisdiction there is
19 also a balance, and a balance has been introduced
20 because of the necessity to have regard to the interests
21 of victims and witnesses and to have regard to the
22 overall operation of this Tribunal in the jurisdiction
23 in which it functions.
24 Your Honours, the primary consideration is pursuit
25 of the truth. If your Honours have any doubt about
1 documents, if your Honours are uncomfortable about any
2 documents, you should not rely upon them. You should
3 not accept them, you should reject them. You should do
4 so if you feel that that would in any way encroach upon
5 the necessity for you to ensure that a fair trial is had
6 by the accused. But by the same time, the Statute and
7 the Rules require you to have consideration to the
8 broader interests as well, the interests of victims and
10 JUDGE JAN: Mr. Niemann, this raises another principle. Can
11 a document be used against an accused when the purported
12 author of that document is sitting in the court, but the
13 accused cannot cross-examine him, cannot question him
14 about the recitals he has made in that statement? The
15 rule of fairness would not come in in such a situation?
16 MR. NIEMANN: Is your Honour talking about the witness
18 JUDGE JAN: I am talking about the letter purporting to have
19 been written by Mucic. Delalic is not in the position
20 to cross-examine him, to question him about the contents
21 of that document. Is it fair to Mr. Delalic?
22 MR. NIEMANN: It falls into the same category as all
23 documents, your Honour.
24 THE INTERPRETER: Microphone please.
25 JUDGE JAN: Against whom the recitals in the document are to
1 be used cannot question him. I am talking about the
2 principle of fairness.
3 MR. NIEMANN: Indeed, your Honours. In circumstances where
4 you may, for example, have a conspiracy count to be
5 considered, and where the parties get together, a group
6 of co-offenders get together and conspire, and evidence
7 of that conspiracy is presented in the form of
8 documentary evidence, a similar situation may well apply
9 there, that the document -- is it a document to be
10 admitted against one party or admitted against a group?
11 Your Honours may have to make that determination. You
12 may have to do it on the basis of fairness; is it fair
13 that it should apply that way? Your Honours, in our
14 submission, there is no rule that says that your Honours
15 cannot apply it. The principle that guides you all
16 along is the interests of a fair trial, and it can be to
17 do it. It is not necessarily unfair.
18 As a question of principle, your Honours, what we
19 urge you to do is to have regard to it, consider it and
20 make the determination on that basis of a fair trial,
21 and if your Honours believe that the evidence can be
22 admissible against a co-accused in these circumstances
23 and still represent a fair trial, then it should be
24 applied for that purpose, but your Honours, it is not
25 correct to say that simply because cross-examination
1 cannot happen in relation to a document that that is the
2 end of the matter and that a fair trial cannot be had.
3 That is not the case in our submission at all.
4 Your Honours could have numerous documents against
5 people who are dead, people who cannot be brought before
6 the Chamber.
7 THE INTERPRETER: Microphone please.
8 JUDGE JAN: The accused is prevented by law from asking
9 questions from him.
10 MR. NIEMANN: It may be frustrating.
11 JUDGE JAN: I am talking about fairness.
12 MR. NIEMANN: It may be frustrating because the persons sits
13 there and cannot be examined, but it is no different.
14 JUDGE JAN: I am talking about fairness, not any other
16 MR. NIEMANN: It is no different to a document that is
17 admitted against somebody --
18 JUDGE JAN: Because you see we have to ensure a fair trial,
19 and I was just looking at it from that, because maybe it
20 raises the principle.
21 MR. NIEMANN: Your Honours, the other issue that has been
22 raised in the course of the submissions is the reference
23 to the fact that the documents need to be authenticated
24 or proved beyond a reasonable doubt, and numerous times
25 I have questioned this. A document, and we maintain
1 that some of these documents fall into that category,
2 are circumstantial evidence. It is the mass of which
3 must be put together to produce the end result.
4 Your Honours, circumstantial evidence is not, as
5 some people might suggest it is, a link in a chain, so
6 that if one of those links were to be taken, the chain
7 would fall, not at all. Circumstantial evidence is like
8 a thread in a rope. It can be insignificant in terms of
9 its strength, but when put together with all the other
10 threads, it receives its strength and may be used. I am
11 not being original when I give this illustration,
12 because it is an illustration that was given by an
13 eminent jurist from the United Kingdom, Baron Pollock,
14 but your Honours, it is a very appropriate, in my
15 submission, analogy.
16 When your Honours look at each one of these
17 documents and each one of the submissions made,
18 your Honours do not do it on the basis, "is this
19 document the document that is going to determine the
20 case on its own, it stands alone", the Prosecution
21 tenders one document in a case, sits down and that is
22 the end of the matter, because it does that exercise.
23 That is not what we are doing or submitting. We are
24 saying each must be considered.
25 There is a process involved; the process is one of
1 sifting and weighing, and your Honours may well, at the
2 end of the day, reject some of the documents if you feel
3 that either they are not of sufficient weight, or they
4 do not have that reliability.
5 JUDGE KARIBI-WHYTE: Actually, I think the difficulty
6 perhaps arises where it is the contents of the document
7 themselves that is in issue, not the surrounding
8 circumstances that a document has been produced. Those
9 can give credible evidence of circumstantial evidence,
10 that it could be done by such a person, but the truth of
11 whether it was done is a different matter.
12 MR. NIEMANN: Your Honours may well want reassurance when
13 there are things in the documents that point to those
14 conclusions. You may well want reassurance from other
15 pieces of evidence. It may well be the case -- if
16 your Honours were to rely on a document, one particular
17 document as conclusive to a particular element of the
18 offence, we do not quarrel with the fact that that
19 document -- you would have to be satisfied that that
20 document proves the issue beyond a reasonable doubt. We
21 do not for one minute quarrel with that issue.
22 So, your Honours, to address the general
23 submission that is put to you, and having regard to the
24 fact that the Rules of Evidence are what they are, it is
25 our submission that your Honours have that very
1 difficult task, to perform the function of judge and
2 jury. In most jury jurisdictions, you have a situation
3 where the trial judge receives the evidence, receives
4 all of the evidence in the voir dire, determines the
5 issue of admissibility and then proceeds for the matter
6 to go to the jury. Your Honours must proceed to do both
7 of those functions, and I am first to say that I think
8 it is a difficult and complex function, and I sincerely
9 hope that from both sides of the courtroom we have
10 endeavoured to assist your Honours in the performance of
11 that function, and it ultimately falls to your Honours
12 to do so.
13 Your Honours, with respect to the Nuremberg
14 principles, I do not think it is fair to describe it as
15 "any document that the Prosecution wants to be admitted
16 gets admitted". It was not as broad as that at all. In
17 fact, from my memory of the Nuremberg principles which
18 I took your Honours to when I made that long submission
19 about the admissibility of evidence, there was a
20 remarkable similarity between the Rules of Evidence that
21 your Honours have devised, in particular under Rule 89,
22 and what then applied at Nuremberg. Principle
23 objective, your Honours, is to seek out and obtain the
24 truth. There are enough limitations upon your Honours
25 in doing that in terms of the acquisition of physical
1 evidence and the circumstances in any event.
2 The creation of national rules of evidence
3 relating to hearsay and so forth which would preclude
4 your Honours from having access to this evidence cannot
5 assist you in the task at the end of the day and in my
6 submission, your Honours, has led you, as the judges in
7 plenary, to devise Rules of Evidence which would best
8 enable you to arrive at the truth of the matter. In our
9 submission, they are Rule 89 and the other limited Rules
10 of Evidence that are provided for in the rules.
11 Your Honours, if you are to deal with this
12 difficult issue, it is how those rules are best applied
13 when weighing the necessity to ensure a fair trial, but
14 so as to ensure that material comes before you for
15 consideration, which is the hard task that you have to
16 perform. It is not achieved, in our submission,
17 your Honours, by simply picking up and applying the
18 rules of evidence that relate to national jurisdictions,
19 and which vary from jurisdiction to jurisdiction where
20 you have no benefit of a legislature to guide you in
21 what rules of evidence should be applied.
22 Your Honours have the difficult task, and it is a
23 difficult task, of having a great deal more evidence to
24 come before you than might come before a jury in a jury
25 trial. It is a difficult task, but in our submission
1 the rules are specifically designed to enable you to get
2 at the truth and by getting at the truth, in our
3 submission, you should not be hampered or prevented from
4 seeing the evidence as it is.
5 I do not wish to address your Honours specifically
6 on each document, I have done that, but I am anxious to
7 encourage your Honours to look at the rules, having
8 regard to the way they are drafted and the way they
9 should, in our submission, be applied.
10 MR. ACKERMAN: Your Honour, an issue came up just now as
11 a result of Judge Jan's question regarding
12 co-defendants' statements, and then Mr. Niemann threw in
13 the issue of conspiracy. May I have two minutes to
14 address that?
15 JUDGE KARIBI-WHYTE: You may, but I do not think it is
16 really necessary. But you can do so.
17 MR. ACKERMAN: I can do it, I think, very quickly. The
18 jurisdiction that I am from, federal prosecutors
19 primarily are in love with conspiracy, so I have tried a
20 number of conspiracy cases. Just as a general
21 proposition, statements of co-defendants are not
22 admissible against other defendants. That is frequently
23 dealt with by severance, or the statement is not
24 admitted in a situation where a jury or a judge could
25 even begin to use it against another defendant.
1 The exception to that is in a conspiracy case,
2 where the defendants were seen during a certain period
3 of time to have been acting together toward a common
4 purpose, and the theory is that statements made by them
5 during the course of that conspiracy and in furtherance
6 of it are common statements that are attributable to all
7 of them, and so those kind of statements would be
8 admissible against each other.
9 That situation ends when the conspiracy ends, and
10 what frequently happens, when accusations are made
11 against individuals who were alleged to have been acting
12 together toward that common purpose. Once the
13 conspiracy is over, frequently the motive is to
14 exculpate themselves and inculpate the others, so any
15 statement made following, like the Mucic statement in
16 this case, much later, long after Celebici was closed,
17 cannot have any reliability, because it can be seen as a
18 statement designed to exculpate some and inculpate
19 others and not something that was furthering any
20 conspiracy that was going on, so that is the way --
21 I can only tell you how American courts view that.
22 I have tried, I do not know, 100 conspiracy cases. The
23 Mucic statement certainly would not be admissible
24 against any other defendant in the United States, and in
25 its current condition not even admissible against Mucic,
1 because of the lack of authenticity.
2 JUDGE KARIBI-WHYTE: Thank you very much. I think we will
3 have to conclude with one other matter which has been
4 pending. I think that is the admissibility of
5 Exhibit 155. We deferred the ruling on the request for
6 the admissibility. The letter allegedly written by
7 Mucic and for an order compelling him to produce a
8 sample of his handwriting. We just want to give an oral
9 ruling, the full decision will be published soon.
10 The Trial Chamber has considered the two requests
11 made by the Prosecution in connection with Exhibit 155.
12 It is clear that the request called into consideration
13 crucial issues in regard to the construction of various
14 provisions of the Statute, and Rules of the
15 International Tribunal, particularly those relating to
16 the nature and ambit of the right of an accused person
17 before the Tribunal, the standards for admissibility of
18 evidence, and the powers of a Trial Chamber seized of a
20 The Trial Chamber has decided to grant the
21 Prosecution's first request, namely that Exhibit 155
22 should be admitted in evidence. In the opinion of the
23 Trial Chamber, the provisions under admissibility of
24 evidence contained in Section 3 of the Rules are quite
25 clear and unambiguous. The test for admissibility, in
1 accordance with sub-rule 89C is that evidence is
2 relevant and should have probative value.
3 The Trial Chamber accepts that reliability is an
4 inherent and implicit component of each of these
5 elements of admissibility. It is indeed the invisible
6 golden thread that runs through both components.
7 However, it is neither necessary nor desirable to regard
8 it as a separate milestone on the route to admissibility
9 of evidence before the Trial Chamber.
10 The arguments of both parties, admittedly to
11 different ends, on the importance and need for
12 reliability before evidence may be admitted are
13 convincing and the Trial Chamber's written opinion
14 expatiates on its reasons for coming to this conclusion.
15 The letter on its own has sufficient relevance and
16 probative value for admissibility. However, the claim
17 by the Prosecution that the contents of the letter tend
18 to prove certain elements of the indictment, because of
19 its allegations, then the letter was written by Mucic,
20 have not been sufficiently proven. The Prosecution has
21 not established a sufficient nexus between its contents
22 and Mucic. It is therefore admitted only to the extent
23 to which evidence of its existence has been laid before
24 the Trial Chamber. That is as a letter being of
25 relevance to these proceedings, exhibiting probative
1 value, and written to Witness B by an unknown third
3 The question of the content of this letter,
4 governed by proof of signature, is a matter that
5 attaches to the weight to be given to the letter during
6 the deliberations of the Trial Chamber. The Trial
7 Chamber is unable to grant the Prosecution's request for
8 an order compelling the production of a handwriting
9 sample from Mucic. The Trial Chamber is not satisfied
10 that a handwriting sample per se can be regarded as
11 forming material proof against an accused person.
12 It is of the opinion that where the material
13 elements add something to the elements incriminating an
14 accused person, a sample of his handwriting -- to compel
15 him to supply the sample which is the missing element
16 would infringe the provisions of Article 21(4)G of the
17 statute. The Trial Chamber rejects the Prosecution's
18 contention that the handwriting will serve no purpose
19 other than for identification.
20 The reason for requiring the handwriting sample is
21 clearly as admitted by the Prosecution; to ascertain
22 conclusively the authorship of the letter. If
23 authenticated, it will act as sufficient admission of
24 its content in respect of counts on the indictment
25 against the author. The obvious implication is that the
1 accused will be compelled by an order of the Trial
2 Chamber to assist the Prosecution in its investigation,
3 and probably provide evidence to incriminate himself.
4 The fact that a handwriting sample per se is trial
5 evidence is not the issue. If the handwriting sample,
6 taken together with other evidence, will constitute
7 material evidence to prove the charge against the
8 accused, then the order of the Trial Chamber would have
9 compelled the production of self-incriminating
10 evidence. There is no legal or moral duty on the
11 accused to fill a vacuum created by an investigative gap
12 of the Prosecution.
13 Self-preservation is the first principle of life.
14 It is an elementary principle of proof that he who
15 alleges must prove the subject matter of his
16 allegation. The Prosecution having alleged that Mucic
17 authored Exhibit 155, has to discharge the burden of
18 proof on it by the Defence.
19 This is the ruling of the Trial Chamber. A
20 reasoned written decision will follow shortly.
21 Now we have a few difficulties, because we are not
22 likely to sit until Monday, 1st December, because of
23 difficulties in the position of the court itself,
24 because other Trial Chambers will be taking over,
25 sitting here. But when we do sit, we will sit until
1 Friday, 5th December.
2 During this week, we hope we will be able to have
3 the two expert witnesses to testify, and hopefully
4 Professor Economides is to be cross-examined and Dr. Gow
5 is to testify in chief. We are hoping that perhaps we
6 will conclude all those proceedings within the period.
7 After that period, I think we are not likely to
8 recommence until Monday, 12th January. The Trial
9 Chamber will appeal to the Defence to start its
10 preparations for presentation of its case, so that we
11 will not have an undue delay after the conclusion of the
12 case of the Prosecution. They should be able to get
13 their case together in general so we can proceed.
14 I think to a large extent we still need Mr. Niemann to
15 show us when he is closing his case for the Prosecution.
16 MR. NIEMANN: It is our expectation, your Honour, that we
17 will finish on that week, the week of the 1st.
18 JUDGE KARIBI-WHYTE: The first week in December. We expect
19 you to be able to say something. It is just to give
20 notice to the Defence so that they know they have to
21 organise themselves, carry on immediately. We return in
22 January. I think this is all we have for the day.
23 (5.40 pm)
24 (Hearing adjourned until 10.00 am
25 on Monday, 1st December 1997)