Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16877

1 Thursday, 20 March 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 [The accused Martinovic not present]

6 --- Upon commencing at 4.49 p.m.

7 JUDGE LIU: Good afternoon, ladies and gentlemen.

8 Madam Registrar, would you please call the case.

9 THE REGISTRAR: Good afternoon, Your Honours. This is case number

10 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.

11 JUDGE LIU: Thank you. For the sake of the record, could we have

12 the appearances, please, for the Prosecution.

13 MR. SCOTT: Good afternoon, Mr. President, Judge Clark, Your

14 Honour, Judge Diarra. Kenneth Scott for the Office of the Prosecutor

15 together with Mr. Poriouvaev, Mr. Bos, and Ms. Fleming.

16 JUDGE LIU: Thank you. For the Defence.

17 MR. KRSNIK: [Interpretation] Good day, Your Honours. Kresimir

18 Krsnik and I'm accompanied by Christopher Meek as co-counsel. Thank you.

19 JUDGE LIU: Thank you very much.

20 Mr. Naletilic, can you hear the proceedings in a language you

21 understand?

22 THE ACCUSED NALETILIC: [Interpretation] Yes, I can.

23 JUDGE LIU: We haven't seen each other for almost five months.

24 How are you feeling? I mean, how about your health?

25 THE ACCUSED NALETILIC: [Interpretation] Thank you for asking.

Page 16878

1 It's fine.

2 JUDGE LIU: Do you have anything to complain during that period?

3 THE ACCUSED NALETILIC: [Interpretation] No, I haven't.

4 JUDGE LIU: Thank you very much. You may sit down, please.

5 This is a special hearing based on the schedule order rendered by

6 this Trial Chamber on the 18th March 2003. This Trial Chamber received

7 the motion for stay of further deliberation of the evidence on an

8 expedited request for the taking of further evidence in light of newly

9 disclosed material provided by the OTP filed by Defence counsel of

10 Mr. Naletilic on March 12th, 2003. In this motion, the Defence believes

11 that this material would have been helpful, if not essential, to the

12 Defence. And had it been available during the trial, it would have

13 impacted on the preparation of the case, as well as in cross-examination

14 of certain witness.

15 On March 14th, 2003 this Trial Chamber got the Prosecutor's

16 response, in which the Prosecutor claimed the document was reviewed and

17 found not fall within Rule 68. The Prosecution nevertheless decided to

18 provide the document to the Defence out of abundant caution and good

19 faith.

20 Yesterday we received the Prosecutor's further response, stating

21 that part of the document was disclosed to Defence on May 28th, 2002 as a

22 Prosecution Exhibit P424.1 and used in the testimony of Defence Witness NW

23 on September 3rd, 2002 and used again with Prosecution Witness Idrizovic.

24 As a general rule, evidence other than exculpatory material may not be

25 tendered after the final closure of the trial proceedings in court. Rule

Page 16879

1 68 establishes a continuing obligation on the Prosecution to disclose to

2 the Defence without any specific time limit but as soon as practicable the

3 existence of any exculpatory material known to the Prosecution.

4 The purpose of this hearing is to ascertain the positions of the

5 parties as to the possible exculpatory nature of the document, including

6 for the Prosecution to clarify its reason for submitting the document if

7 it did not think it was exculpatory, and for the Defence to establish

8 prima facie that the document fall under Rule 68 of the Rules by showing

9 just where and how it contains exculpatory information.

10 Since the Defence counsel filed this motion, we would like to hear

11 Mr. Krsnik on this matter first. Mr. Krsnik.

12 [Defence counsel confer]

13 MR. KRSNIK: [Interpretation] Your Honours, as you have started,

14 with respect to disclosure of evidence of an exculpatory nature, I must

15 admit that perhaps my English was not quite correct because we wrote this

16 motion very rapidly, because on the 5th of March I received these

17 documents in my office in the Croatian language, and unfortunately there

18 is no translation at the moment. I think we're all handicapped because of

19 this. I will try to read out the main parts of some of the documents

20 slowly so that you too, Your Honours, might gain insight into the

21 character of these documents. And these documents shed new light on the

22 events in Sovici and Doljani, these events that we have discussed at

23 length over a two-year period here.

24 First of all, Your Honours, I would like to say that this

25 collection of records from the Mijat Tomic Battalion was positioned in

Page 16880

1 Sovici and Doljani. And so that these could be visually portrayed to you,

2 it has to do with a book in which minutes were taken from the 9th of

3 February, 1993 up until the 25th of July, 1993. What concerns Defence

4 counsel is the fact that certain dates are missing. If someone has this

5 notebook, then that person has all the minutes too. And what the

6 Prosecutor refers to when he said that one of these documents from this

7 collection was disclosed to us, that is correct, but that also shows that

8 he had all the other documents at the time because they're all contained

9 in one notebook. We found this document here too, but Mr. Meek will

10 address this issue.

11 Our position, Your Honours, is that these documents exist -- all

12 of the documents exist, and our learned colleagues from the Prosecution

13 have had them since 1996. Otherwise, they wouldn't have been in a

14 position to have these -- this document that they gave to Witness NV [As

15 interpreted], as they said in their response to your submission. These

16 documents confirm everything that the Defence counsel has been saying for

17 two years. These are documents that are in accordance with the indictment

18 that was issued in the court in Konjic and we had great difficulty in

19 getting them -- obtaining them from the Prosecution and we didn't obtain

20 all of them. These documents point to what we have been claiming was the

21 case all the time, all along. They show that part of the 4th Corps of the

22 BH army was in Sovici, they were armed, they dug trenches. But I'm going

23 to read out certain parts to you.

24 Who took the civilians, the captured civilians away? Who fed

25 them? It's all stated here. But naturally, my client doesn't appear

Page 16881

1 anywhere. Likewise -- he doesn't appear anywhere in the indictment in

2 Konjic -- likewise the indictment in Konjic doesn't appear anywhere.

3 What is also interesting is hat it is not at all in accordance

4 with parts of the famous, of the notorious Alojz Rados diary. And it

5 would appear, at least according to the signature here, that he took these

6 minutes of the meetings and according to the signature it seems that the

7 same man took these minutes, that is to say, Alojz Rados.

8 We're a little tired now. I think we're all here for the sake of

9 justice and especially the Prosecution is here for the sake of justice.

10 This isn't an institution that persecutes. It's an institution that wants

11 to render justice. They're in a different position than that of the

12 Defence. And it is not our intention to attack the Prosecution. This

13 wouldn't even cross my mind. I've already expressed my position with

14 regard to the Prosecution before this Trial Chamber, and I'm not going to

15 repeat what my position is. I think it's quite clear.

16 I have often repeated that the Prosecution in this Tribunal isn't

17 acting in good faith and this is proved from day to day. But as I said,

18 my intention is not to attack them, but we would like to hear why these

19 minutes weren't disclosed to the Defence during the proceedings. On

20 several occasions Defence counsel asked the Prosecution to provide them

21 with material that related to the indictment and especially to Sovici and

22 Doljani. This is what we did throughout the proceedings, as you are well

23 aware, Your Honours. And I cannot agree with the claim of my learned

24 colleagues according to which these minutes that I have just received now,

25 these minutes from the meetings of the Mijat Tomic Battalion correspond in

Page 16882

1 full to other documents, conform fully to other documents which Rados, a

2 certain Rados prepared, as the Prosecution says. And this also shows that

3 these minutes aren't consistent according to the thesis of the Prosecution

4 and this is why we wanted to inform this Trial Chamber of these matters,

5 for the sake of justice. The Prosecution accepts these documents. They

6 say that there was someone called Rados. The Prosecution relies on these

7 documents. The Defence does not have to do that. But this contradicts

8 the Prosecution's basic and main thesis that there were unarmed civilians

9 in Sovici, that the attack was imagined, the attack to expel Muslims, et

10 cetera, et cetera. And these are documents quite clearly states what is

11 the case, what happened throughout the relevant period.

12 JUDGE CLARK: Mr. Krsnik.

13 MR. KRSNIK: Yes, please.

14 JUDGE CLARK: I think the President asked you to be more concise

15 in your address to us in that you have to tell us specifically what in

16 these documents is exculpatory material and not confirmatory of a state of

17 affairs which existed in Sovici and Doljani before the 16th or 17th of

18 April. Can you address yourself very specifically to what information is

19 in those documents which would -- very good. Well, if you'd come to that

20 instead of the other things that you've been addressing us in relation to.

21 MR. KRSNIK: [Interpretation] Thank you, Your Honour, for your

22 comment. You know, there are a lot of documents, and I had to make a few

23 introductory comments, but I hope that we are all familiar with the

24 subject matter now. But as you can see, there are a lot of documents that

25 I have prepared and I also wanted to respond to the Prosecutor's last

Page 16883

1 motion, and I didn't have the opportunity to do so before. You know, we

2 received these documents at the eleventh hour as they say in my country,

3 and I don't think this is really fair. And the Prosecution does admit

4 that they had them in January, although we can also see that the

5 Prosecution had these documents in 1996. Your Honour, I had to write this

6 in my -- using my knowledge of English and submit it immediately, not just

7 to inform you but perhaps because of appeals. And there are 153 Pages

8 here. And I'll be more specific, now, why are these documents more

9 important? I've got it all written down and I'll read it out to you.

10 The documents are important because contrary to what the

11 Prosecution claims and the witness who claimed with regard to Sovici and

12 Doljani that the BH army was in Sovici, who claimed that in Sovici and

13 around Sovici the BH army dug trenches before April. On the 9th of

14 February, 1993 they used heavy machines to dig trenches. And on the 10th

15 of February, 1993 there was a meeting of the BH HVO -- of the BH army and

16 the HVO in Jablanica and this meeting was attended by Zajko Sahiljic,

17 Dzemal Ovnovic, and Dino Senad they represented the BH army, and Marko

18 Zelenika, Stipo Pole, and Alojz Rados were present and they discussed the

19 relation and the conflict between the people and the units of the BH army

20 and the HVO in the area of Doljani and Sovici.

21 Your Honour, there is a lot of material here. I don't want to

22 skip things. I wanted to inform you of everything. This is the order in

23 which I have marked everything that I can read out, because unfortunately

24 you don't have these documents in English, so you are handicapped. If

25 you'd been able to familiarise yourself with them before, then I would be

Page 16884

1 able to discuss this matter in a different manner. But now you have to

2 wait to see what I'm going to inform you of because you haven't had the

3 opportunity of reading these documents.

4 So Dzemal Ovnovic admits with regard to these trenches, he admits

5 that hey belonged to the 4th Corps of the BH army. This appears in this

6 document. That contradicts the claim that the people were unarmed. It

7 says that the BH army had a checkpoint in Sovici on the 25th of March,

8 1993. And then there is an entire list of other things. I'll try to be

9 brief and refer to concrete events. And this shows, without a doubt, Your

10 Honours, that in Sovici and Doljani there were armed forces that were

11 involved in a conflict. It wasn't a matter of the civilian population.

12 And this was a conflict between the HVO and the BH army. If we had had

13 this when the Prosecution witnesses appeared - and I'm not going to repeat

14 what their testimony was with regard to Sovici and Doljani - if we had

15 been able to ask questions about this and if we had been aware of contents

16 of these documents, I think that our cross-examination would have been

17 quite different.

18 And now, as far as the documents are concerned which appear after

19 the 16th of April, these documents quite clearly mention the fact that the

20 Mijat Tomic Battalion took care of supplying and feeding the people and

21 prisoners. Likewise, that civilians were placed in Junuzovici, were

22 accommodated in Junuzovici, that they looked after cattle, et cetera, how

23 they're going to accommodate civilians who are captured, how they're going

24 to treat them, et cetera, these decisions are decisions that were taken

25 and implemented by the Mijat Tomic Battalion and not -- this was not

Page 16885












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Page 16886

1 something done by Mr. Naletilic, as the indictment states.

2 A series of documents also talks about how food for civilians,

3 captured civilians, was organised, about how supplies were provided, not

4 just of food but also medical provisions, toiletries, et cetera. They

5 mention how cattle -- how livestock was looked after, who looked after

6 livestock. They emphasise the problems of looting property, et cetera,

7 and they apologise about this. And what is most important, it talks about

8 how the departure of civilians from Sovici and Doljani was organised, who

9 organised it, who escorted them, et cetera. And my client doesn't appear

10 in this respect at any point.

11 And now, the Prosecution says that our arguments aren't justified.

12 We can't inform you of all the important details apart from the ones that

13 I have mentioned. I'm just going to try and read out two or three of

14 these details. But in the opinion of the Defence counsel, the fact, Your

15 Honours, that in Sovici and Doljani parts of the 4th Corps of the BH army

16 were present - so it wasn't a matter of civilian population - we consider

17 this fact to be of such importance that we would have used it in the

18 course of our cross-examination without a doubt. The Defence counsel

19 hasn't changed its opinion about Rados's diary. The Defence counsel

20 claimed that this diary was modified in order to justify a thesis, and

21 this is what was shown. What happened to the diary? What happened with

22 the diary? You witnessed this as I did. The Defence counsel received a

23 typed version, and afterwards we received a photocopy of the alleged

24 original. And when the Prosecution's last witness appeared, we received

25 the original diary for inspection. That was nothing new.

Page 16887

1 Likewise, the Defence counsel can't claim that this material is

2 authentic. We cannot claim this, and we can't deny it either. We simply

3 have to investigate the matter. But the information contained in this

4 document point to the fact that they contradict the claims made by the

5 witnesses presented by the Prosecution. Similarly we think that the

6 Prosecution is wrong when the subsequently provided material -- when they

7 compare the subsequently provided material to the diary. We had the

8 possibility of examining, investigating the diary, whereas this document,

9 we've only had a cursory glance at it. We read through it very rapidly.

10 We had to do this rapidly in order to carry out all -- take all the

11 relevant steps in order to inform the Trial Chamber. We claimed certain

12 things for a year and a half and this document was somewhere on the

13 Prosecution's shelves throughout this period, and we were provided with

14 the document at the eleventh hour, as I said.

15 And finally, I would just like to say that Mladen Naletilic has

16 the right for the Trial Chamber to be informed about all the events and

17 circumstances for which -- or with which he's being charged and he has the

18 right of being provided with these documents in the course of the

19 proceedings that have been instituted against him. And these documents

20 have been in the hands of the Prosecution since 1996. The indictment was

21 issued in 1998. So is it possible to argue that the Prosecution has so

22 many documents, is it possible to make such an argument before this

23 International Tribunal and that for this reason we are not in a position

24 to be provided with this document? Is that an argument, to say that we

25 have too many documents, we've been inundated with documents and these are

Page 16888

1 documents that the Defence was not able to use?

2 I'll just read out a few items which I consider to be the most

3 important ones. For example, at a meeting held on the 30th of March, 1993

4 all the commanders were present, all the commanders of the battalion were

5 present, and it says that the entire territory of Jablanica was blocked,

6 that there were additional checkpoints which were used, and then they

7 mention the checkpoints that were set up by the BH army and Doljani and

8 Sovici were surrounded, then they discuss the measures that should be

9 taken in order to come to an agreement with the BH army and then the

10 suggestion was made that discussions should be held with the BH army, with

11 the Muslims, and they said that they should try to get rid of the

12 checkpoints, and especially the checkpoint in Sovici. You know that all

13 the witnesses, the Prosecution also claimed that there were never any --

14 there was never any such checkpoint.

15 Furthermore, it states that this has to be presented in the

16 command of the army and of the command of the HVO and similarly these

17 documents quite clearly state who the commander is and what the high

18 command post of Sovici and Doljani is. It quite clearly states here that

19 it's in the Tomislavgrad area and that the commander is Mr. Siljeg, he

20 should be informed of everything. This all contradicts the claims of the

21 Prosecution according to which it is my client who is concerned. My

22 client does not appear in these documents. Everything is stated here

23 quite clearly.

24 On the 10th of April, six days before the conflict broke out,

25 singularly there was a meeting which was held and these are the problems

Page 16889

1 that they emphasise, if there is a conflict, if a conflict breaks out.

2 The military targets which the Mijat Tomic Battalion should deal with is

3 combat the activity of the Muslims in Sovici and Doljani, to prevent the

4 joining up of the forces from Jablanica with Doljani and Sovici. Three,

5 to protect our features in Sovici and Doljani. And this contradicts the

6 claim that someone came on the 16th of April in order to attack unarmed

7 civilians and to expel them. There is a chronological order -- I won't

8 bother you any more. I'll give the Prosecution the opportunity to have

9 addressing you. But I just want to read out these most important things.

10 "On the 21st of April, there was a meeting after the conflict --"

11 that is to say, it mentions organising food for prisoners in Sovici, the

12 transportation of food. And then there's another interesting thing,

13 that's the terrain. It's in Sovici, contrary to what the Prosecution said

14 according to which the Convicts Battalion was involved. Here it quite

15 clearly says who was involved in mopping up the terrain, combing the

16 terrain. So on that meeting in April the tasks are to comb the terrain,

17 continue with combing the terrain. All those who are dead and wounded

18 should be recorded, the dead should be buried, et cetera, et cetera. It's

19 very clear who was involved in mopping up and combing the terrain. I

20 think this information is very important and it contradicts what the

21 Prosecution has been claiming to date.

22 Minutes taken on the 6th of May, 1993, Your Honours: "The other

23 captured civilians shall be transferred to a certain location. This shall

24 be done and coordinated by Ivan Rajic, it does not say Mladen Naletilic.

25 It says Ivan Rajic. Transport shall be provided with military vehicles,

Page 16890

1 lorries with tarpaulins, and escort will be provided by the command of the

2 military police and that is what the command of the military police

3 testified about before you. But the Prosecution -- what does the

4 Prosecution say? They say that the Convicts Battalion did that, and some

5 witnesses testified about this.

6 Furthermore, the military police is also given the task of

7 preventing looting, stealing, et cetera.

8 About this document which is of particular interest, you will hear

9 from my colleague, Mr. Meek. This is the document that I was given by the

10 Prosecution when the Prosecution witness NW was on the stand.

11 Your Honours, I tried to be very brief and concise and specific,

12 pointing out only to certain things. Of course all events up to the 10th

13 of April are covered, just as -- just for instance, there is a meeting of

14 the 10th of February. All this needs to be translated. Dzemal Ovnovic

15 head of the BH army said this -- do you think I had this when he was on

16 the stand? He says: "The trenches that are being dug, let them be dug."

17 He is now talking about Sovici. It is noted that machinery is being used

18 in digging trenches in Sovici.

19 I am looking for this place because I want to be as specific as

20 possible. He notes and explains what trenches these are. He says, "The

21 problem of trenches would be resolved if your people would be -- could be

22 in Borovnik because nobody has anything against you from Donji Mahala but

23 I don't believe people from outside. I don't trust people from outside,"

24 says Stipo Pole commander from the HVO. "I agree. But how can we explain

25 this to our people if even in the army units we have representatives from

Page 16891

1 outside." He means members from outside who are not from Sovici and

2 Doljani. "How can we explain this if these outsiders even man the

3 checkpoint?" Then follows a discussion. They discussed all these

4 problems at many meetings, clearly stating their position in military

5 terms. And Marko Zelenika says, "All these problems have been presented

6 by us to the higher command, namely Commander Siljeg." I don't want to

7 take any more of your time, Your Honour. I just singled out some examples

8 in the brief time I have at my disposal, and I believe these examples

9 corroborate the argument of the Defence that this material is not only

10 contrary to the case of the Prosecution and the claims of its witnesses

11 but also that if the Defence had had this document in time, we would have

12 conducted our cross-examination completely differently. This type of

13 document should not be handed to us at the eleventh hour.

14 My colleague, Mr. Meek, will continue. Thank you for your

15 understanding and thank you for holding this hearing today.

16 MR. MEEK: Mr. President, Your Honours, greetings from Kansas.

17 It's good to be back in The Hague. I won't take very much of your time,

18 not as much, I don't believe, as I probably should.

19 I noticed, Your Honours, and I just had a chance to look at this

20 and I'm a little hampered because this is all in Serbo-Croatian, and I'm

21 relying on the discussions I've had with Mr. Krsnik and Ms. Pinter in

22 regards to what this document actually says, and I believe Mr. Krsnik

23 succinctly gave you several examples of how these documents, this 153-page

24 document, allegedly authored by Rados, contradicts the Prosecution theory

25 in this case in regards to Sovici and Doljani.

Page 16892

1 Exculpatory evidence, Your Honours, as I understand it - and I

2 don't have the definition in front of me - is any evidence which would

3 tend to demonstrate the innocence of the accused or would tend to mitigate

4 punishment of the accused. If you look at the indictment against

5 Mr. Naletilic, you see that the Prosecution has charged him in three

6 areas, basically, Sovici-Doljani in April, Mostar, and also Rastane.

7 Certainly, Your Honours, I don't see how the Prosecution can argue that if

8 Mr. Naletilic could have been shown to have no active role or even a role

9 as active as alleged by the Prosecution in Sovici and Doljani and could be

10 cut out of that conflict that that in itself would not have been -- would

11 not mitigate his punishment if he were convicted in this case. So to say

12 that this evidence, these documents, which as I've said before and I may

13 repeat again - I don't understand them. I don't read this language. They

14 have not been translated into English. Apparently there have been 33

15 excerpts that the Prosecution has deemed relevant enough to translate in

16 English with the hopes of use of cross-examination of Defence witnesses

17 but they did not use but one, 424.1, I think.

18 In looking at these documents, Your Honour, I see that in the

19 original -- a copy of the original 152 pages the two pages which were

20 translated and became Prosecution Exhibit 424.1 have this bate stamp of

21 02181733 and 734. However, if you look at the Bates stamp on the same two

22 items, which would have been the minutes of the meeting of 30th of May

23 1993, they are Bates stamp numbers of 01174655 and 56. The Bates stamp

24 numbers don't match, which indicates to me, and I'm sure that Mr. Scott

25 can enlighten this Trial Chamber and enlighten Defence counsel why that

Page 16893












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Page 16894

1 might be, but it would appear that there were obviously two copies, at

2 least two copies in the Office of the Prosecutor of this 153-page

3 document, otherwise it would be a factual impossibility to have different

4 Bates numbers on these two pages to 30 May 1993 minutes from the meeting

5 as I've set forth. In the filing of the Prosecutor yesterday 19 March

6 2003 attached is the B/C/S version handwritten of the two pages, again

7 last three numbers 733, 734. Those will match identically with 655, and

8 656 in the 153-page document that has been sent to Defence counsel very

9 recently.

10 Frankly, Your Honours, I find this to be disheartening and I am

11 concerned about several issues. The Prosecutor frankly and fairly admits

12 in paragraph 2 that they did in fact receive the 153-page compilation of

13 the Mijat Tomic Brigade minutes. When did they receive it? Mr. Krsnik

14 alleges approximately 1996, when this case began to be investigated.

15 Perhaps Mr. Scott or someone from the Prosecution can enlighten us how

16 long they have had these documents.

17 Paragraph 3 of their motion yesterday, the further response, they

18 talk about April 2002, approximately one year ago, that a hard copy of

19 these minutes were reviewed by some members of the Prosecution

20 investigation team. And then they go on to state that four parts were

21 selected for possible cross-examination. Which members of the

22 Prosecution/investigation team reviewed this 153-page document back in

23 April of 2002, decided to have four excerpts translated into English to

24 present to Defence witnesses on cross-examination? We would like to know

25 who they were.

Page 16895

1 Eventually under paragraph 5 they indicate that only two pages

2 P424.1 were actually disclosed to the Defence. Again, made -- a call made

3 by the Prosecution. But to revert back to paragraph 4 of their motion

4 yesterday, the Prosecution states, "Those who reviewed the document at the

5 time --" again, we'd like to know who it was that reviewed the documents.

6 These are very, very capable qualified attorneys representing the

7 Prosecution in this case. They also state in paragraph 4 that they

8 determined this material was not covered by Rule 68, that it was not

9 exculpatory, and therefore they did not have a duty to give it to us.

10 Your Honours, this has been a continuing problem in this Trial

11 Chamber and I think in this Tribunal, and that is simply that the

12 Prosecution gets to choose and gets to make a determination on what

13 evidence they believe to be exculpatory. We made some requests - I don't

14 recall when; the record will reflect - that we be allowed to look at all

15 documents even if we have to look at them in Prosecutor's office to

16 determine if we believed that they were exculpatory to our client for our

17 theory of the defence. And I believe that the only proper rule in this

18 Tribunal should be that only the Defence counsel can make a decision on

19 what evidence is exculpatory to their theory of the defence, to their

20 theory of the accused. This is an adversary proceeding. As we all know

21 in an adversarial proceeding we can't rely on our adversary to look after

22 our best interest. And this appears to be a situation that the Prosecutor

23 had determined at some point they didn't believe this to be exculpatory

24 until a week before the judgments to be rendered and then they decided

25 whoops, we forgot this document, it's 153 pages, apparently written by the

Page 16896

1 same person that we claim wrote the Rados diary, a man by the name of

2 Alojz Rados, which was hard -- a very hard-fought battle, if you will

3 recall, about that whole diary, whether that was admissible, what the

4 relevance was, was it authentic. We fought tooth and nail about that,

5 Your Honours, and I don't even have to remind you of that. And that's

6 what the Prosecutor says in his further motion, that they just believed

7 that in an abundance of caution and in good faith they would supply us

8 these, even though they didn't believe they needed to.

9 Well, Your Honours, again, I am hampered, as you are. I wish this

10 was in English so I could read this entire thing, this entire 153 pages,

11 and have a right to consult with my client along with my leading counsel,

12 Mr. Krsnik, in a setting that we all know what is being said in this diary

13 or in this 153 pages written by the same person that was supposed to have

14 written the diary that's been admitted over strenuous objection. How good

15 of faith can it be when the Prosecution knew how strenuous and

16 continuously we objected to the admission of the Rados diary and they were

17 sitting on 153 pages encompassing meetings of the HVO, Mijat Tomic

18 Battalion in Sovici, which concerned a period of time predating the April

19 17th, April 18th conflict, into May, and past that time, where our client

20 is not mentioned as a coordinator, as a commander, as being present prior

21 to the 17th of April. If that doesn't contradict the evidence of the

22 Prosecution, Your Honours, I frankly don't know what does. If that does

23 not tend to demonstrate the innocence of Mr. Naletilic, or if you don't

24 believe it goes that far, if that evidence doesn't tend to mitigate the

25 damages or mitigate the possible punishment he might receive if he were

Page 16897

1 cut out of Sovici, I don't know what does. This is exculpatory evidence

2 under either prong of the fork. It either goes to show his innocence,

3 which we submit it does, or it goes to mitigate his punishment, which we

4 submit it would. In either fashion, this is exculpatory evidence. Again,

5 we don't know how long the Prosecutors had it. We don't know which

6 Prosecutors looked at it. We don't know which Prosecutors made the

7 decision that this isn't exculpatory, we don't have to give it to the

8 Defence. But that decision got reversed very recently. And Mr. Krsnik

9 received this document on the 5th day of March. We filed a response as

10 quickly as we could, on the 7th.

11 What the only fair proper thing to do, Your Honours, is to stay

12 the deliberation of the evidence in this case, have this document

13 translated into English, allow us a reasonable time to investigate this

14 matter, allow us the right to call the Prosecution witnesses who we

15 believe we could have cross-examined differently and used this material in

16 the cross-examination of those witnesses. In lieu of that, Your Honours,

17 based on outrageous prosecutorial conduct in this matter by not disclosing

18 this exculpatory evidence to us until a week before judgment, all claims

19 in the indictment relating to Sovici, Doljani should be dismissed.

20 We believe, Your Honour, that you may have more questions -- we

21 can't question the Prosecutors, but I believe their further response filed

22 yesterday raises many more questions than answers. I'm frankly shocked.

23 I'm always shocked and amazed. But this is very relevant, highly

24 relevant, highly exculpatory evidence that we would have put to good use

25 had we had it in a timely fashion, which we did not. Thank you, Your

Page 16898

1 Honours.

2 JUDGE LIU: Now we turn to the Prosecutor. Mr. Scott.

3 MR. SCOTT: May it please the Court. Your Honour, I'm not going

4 to spend a great deal of the Court's time revisiting the facts that we've

5 put before the Chamber in terms of the history of the document itself. I

6 could sit here or stand here and give you exactly the same account that

7 we've given to you in our filings. I hope the Chamber will see that

8 throughout this entire history of events, including the initial

9 disclosures, the sending of the document back in February, and the two

10 responses that we have filed, including the second response to clarify

11 what indeed we felt should be clarified, in every instance the

12 Prosecutor's first instincts has been to be transparent and to disclose

13 all that we could to assist the Chamber.

14 Between the two filings that we have made, Mr. President, we have

15 shown that -- and there is no dispute. There is no dispute -- that the

16 document came into the possession of the Office of the Prosecutor in

17 approximately March 1996. Through human error, which does happen

18 occasionally, the document was not placed into the electronic database of

19 the Office of the Prosecutor and therefore would not be produced as a

20 result of -- in a response to subsequent electronic searches.

21 Nonetheless, a hard copy of the document became known or was known to

22 certain members of the Prosecution investigation team, and I must disagree

23 with counsel that I don't see that there's anything to be gained by going

24 into the names of those persons. We've told the Chamber quite clearly

25 that our office, certain members of our office, did in fact -- were in

Page 16899

1 fact aware of that document at an earlier time. It was reviewed. It was

2 determined not to be Rule 68. There was no 66(B) disclosure request, as

3 this Chamber knows, from the very early days of this trial, we spent a lot

4 of time on those disputes about the documents and the discovery. There

5 was no reason to turn the document over at that time. That was the

6 assessment made by those who were familiar with the document at that time.

7 And my subsequent assessment of the document in January and February

8 agrees with that. It was the right decision then, and it was the right

9 assessment now. Therefore, there was under the practice of the Tribunal

10 no responsibility, no obligation whatsoever, for the Prosecutor to turn it

11 over. It was not selected as a Prosecution exhibit. It was not subject

12 to a Rule 66(B) request. It was not Rule 68. It was like thousands and

13 thousands, millions of other documents possessed by the OTP; it was a

14 document that was not selected for evidence in this case and was simply

15 put aside.

16 There were a few excerpts that were selected for potentially for

17 use in cross-examination. Only one of them ultimately was used in court,

18 as we've indicated, and that is Exhibit P424.1.

19 What happened then is that subsequently, as we've said in our

20 papers, the hard copy -- the hard copy of the document resurfaced, if you

21 will, in January. It was brought to my attention and it was reviewed

22 again, and again it was found not to be Rule 68 -- covered by Rule 68.

23 Now, we've said repeatedly in the letter that I sent to Mr. Krsnik on the

24 17th of February and in our filings out of abundant caution, good faith,

25 it was simply turned over. It was decided for the very reasons -- for the

Page 16900

1 very reasons Mr. Meek just went on about, about the importance of the

2 Rados diary -- we thought with the benefit of hindsight, since the Rados

3 diary was indeed a hotly contested piece of evidence. That this document,

4 though not in our view Rule 68 at all and in fact in our view fully

5 consistent with the Prosecution case, in this particular circumstance it

6 was, if you will, the better part of valour, the better part of discretion

7 simply to make it available to them.

8 And you will forgive me, Your Honour, if I -- what I'm about to

9 say is -- I'm going to explain one thing in order to say what I'm going to

10 say next. The Chamber may know that there is a biblical mandate about if

11 one forces you to go 1 mile, go with them 2 miles, go to second mile. And

12 when my -- if I can be, just give a personal explanation of this. When my

13 wife asked me recently why the judgment had been postponed, I said, "Well,

14 it appears that I'm in trouble for going the second mile," for turning

15 over a document that we had no obligation to turn over but simply chose

16 unbalanced that it was the easiest thing to do given the Rados diary and

17 this document also prepared by Mr. Rados to simply turn it over to the

18 Defence.

19 The Defence has made -- I've listened carefully, and if the

20 Chamber -- perhaps some of the Chamber and the Court staff have seen the

21 movie Chicago, and there's a wonderful scene in the movie where the

22 Defence lawyer does a tap dance scene. And I respectfully submit to the

23 Chamber that's about all we've seen this afternoon. Neither Mr. Krsnik

24 nor Mr. Meek, even after so directed by Her Honour Judge Clark, could ever

25 give any specific answer to the question of how it was that this document

Page 16901

1 is exculpatory, how it was that this document would have affected the

2 cross-examination of a Prosecution witness in any way.

3 Now, it is -- the burden is on the Defence in this situation, as

4 the Chamber recognised in asking the Defence to speak first, to show this

5 Chamber, to convince this Chamber that this document is exculpatory and

6 that they have suffered some material prejudice from its nondisclosure.

7 Before I continue on, I just want to repeat again, Mr. President, in our

8 assessment it is not exculpatory and it is fully consistent with the

9 Prosecution case.

10 Let's just take -- assuming -- I say "assuming" that Mr. Krsnik

11 has accurately characterised some of the entries that he's referred to,

12 simply taking them at face value, how is any of that exculpatory? He

13 talks about the fact that there were armed defenders in the vicinity of

14 Sovici in mid-April 1993. Never contested, never in dispute. The

15 evidence was that there were indeed Muslim men, armed, who put up a

16 limited defence of the village when it was attacked on the 16th of April.

17 There was indeed firing. There was indeed -- there were indeed weapons

18 that -- remember, the weapons were confiscated by the HVO. They were

19 turned in at one of the houses. Never a dispute, never a dispute that

20 there were armed Muslim soldiers in the area. And in terms of something

21 being exculpatory, it must relate to something in at issue in the case.

22 The crimes concerning the attacks on Sovici -- the events in

23 Sovici-Doljani do not charge unlawful attack.

24 We go back to the basics, Mr. President: Look at the indictment.

25 The indictment does not charge an unlawful attack on a civilian

Page 16902












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Page 16903

1 population. What it does charge is forcible transfer after the attack,

2 destruction of property after the attack, destruction of the mosque after

3 the attack. Everything that Mr. Krsnik has said is simply irrelevant and

4 not exculpatory in this slightest.

5 I cite one additional example: Cikota was killed. He was killed

6 in a hostile combat situation. That evidence alone shows that it was

7 never in dispute that there was combat going on between two armed forces.

8 The Defence really can't make up their mind whether they want to

9 accept this document as true or -- or, if I can say, trash it along with

10 the Rados diary. On the one hand they say it completely supports their

11 case. On the one hand, they want to dismiss it out of hand. Even this

12 afternoon, Mr. President, Your Honours, they have not made up their mind

13 what their position is.

14 These are the minutes of actual meetings of the local battalion

15 leadership. They are different than the diary. These are not Mr. Rados's

16 just broad observations. These are minutes of meetings, just simply

17 meetings just as if any of us had been to board meetings, organisational

18 meetings, PTA meetings, and minutes are taken. There's absolutely nothing

19 exculpatory or particularly even interesting or noteworthy in the fact

20 that if Mr. Naletilic wasn't present at a particular meeting of this local

21 Battalion -- this was the local battalion -- that he wasn't involved in

22 their regular meetings from February to July 1993 is not surprising at

23 all, not -- and entirely not inconsistent for the Prosecution case. It's

24 never been the Prosecution case - never- that he was the local kind of

25 on-the-ground commander of the Mijat Tomic Brigade, never an issue, never

Page 16904

1 asserted.

2 The Bates stamp numbering, let me just address that that Mr. Meek

3 raised. A complete answer: When the one -- when the document or the part

4 which became Exhibit 424.1 was selected in approximately April 2002, it

5 was at that time consistent with OTP practice given a Bates number and

6 processed as a stand-alone document and a number was placed on it. When

7 the document -- when the 153-page compilation was found in January, the

8 entire document was processed again as a whole document and a new series

9 of Bates numbers was given for the entire compilation. That's why the

10 numbers are different.

11 There have been various attacks on the diary. But lest there be

12 any confusion, the diary is not in issue here, Mr. President. It's not

13 what was in the diary that's at issue. It's these minutes. And whether

14 these minutes standing and as the counsel have them and have asserted,

15 whether these minutes are in any way exculpatory of the relevant issues in

16 the case. And they have not told you that this afternoon and they cannot,

17 because the Prosecution's assessment in April 2002 and in January 2003 was

18 correct. They're not exculpatory. They're fully consistent with the

19 Prosecution case.

20 Even now, Mr. President, it's unfortunate that even now at this

21 late date of these proceedings Mr. Krsnik says Mr. Tuta is not named in

22 these documents and that makes it -- that in itself is exculpatory.

23 Mr. President, if counsel is going to read parts of the document,

24 he should make the Chamber aware of all parts of the document, including

25 an entry on the 24th of April 1993 at 11.30 in the evening. "Finished.

Page 16905

1 Commander Tuta arrived. Military activities start."

2 Mr. President, there's been no showing. There's simply been no

3 showing of anything exculpatory about this document or how it would have

4 affected the Defence case in any way. Thank you.

5 JUDGE LIU: Any response?

6 MR. MEEK: I'm just going to be very brief. But, you know, I'm

7 really at a disadvantage here, and I don't know how Mr. Scott unless he is

8 now fluent in Serbo-Croatian, can understand this 153-page document,

9 because I certainly can't read it. And how can he sit there and tell Your

10 Honours that I don't know what I'm talking about? I told you I don't know

11 what I'm talking about because they haven't translated this into English

12 for me, so I have to go on what people tell me, just like he has to go on

13 what people tell him. But it gets back to that basic assumption of why is

14 it that the Prosecutor in this Tribunal gets to make the decision on

15 what's exculpatory under Rule 66 and that is the law and that's set in

16 concrete? That's what appears to be going on in this Trial Chamber and in

17 other Trial Chambers.

18 I'll let Mr. Krsnik take it from here, Your Honours. Thank you.

19 JUDGE LIU: Yes, Mr. Krsnik.

20 MR. KRSNIK: [Interpretation] Your Honours, I don't want to take

21 much more of your time. The only thing I understood from the Prosecutor

22 today was that I have to watch the academy award ceremony very carefully

23 because there's a lot to learn from it, and I think everything is assuming

24 film-making proportions and everything is going -- is proceeding as in a

25 strange movie.

Page 16906

1 Your Honours, the minutes from the meeting of the command staff of

2 the battalion of the 6th of May, 1993, starting at 15.15 hours. Stipo

3 Pole, Stipo Kopilas, Ivica Tomovic, Ivan Rajic, Jure Groznica, Ivo

4 Zelenika and others attending. There are more names. The meeting chaired

5 and led by Stipo Pole. Item 3 says "6th of May." That is precisely after

6 -- I'm not going to repeat this, after the agreement between Petkovic and

7 Halilovic about the change of population. Around this date the command of

8 the battalion says, item 3, "The remaining captives, civilians --" I'm

9 quoting from Croatian -- "the remaining captives, civilians, will be

10 transferred to a designated place. This will be conducted and coordinated

11 by Ivan Rajic. The transport shall be carried out by a freight vehicle,

12 namely truck, with a tarpaulin," which means that it's a closed-covered

13 truck, "whereas the escort shall be provided by a commander of the

14 military police."

15 It goes on to say: "Even in our army there are individuals and

16 this is not allowed. That is why the military police will come." What

17 follows is very illegible. I don't want to guess, but I think what it

18 says is, "In order to prevent looting, robberies," this is not written in

19 really learned language. The language is very simple. "Manipulations

20 should not be allowed."

21 And I'm asking you now, what are we claiming here -- what have we

22 been claiming since 1998? What did the Prosecutor say? Who was

23 responsible for the persecution and expelling of civilians? Who did that?

24 And he is standing up here and saying -- he has the gall. Where does he

25 get the gall to say that all this is not important? And he's been telling

Page 16907

1 us all this time that my client is responsible for this. How can I

2 qualify this sort of conduct when he now says that this document doesn't

3 matter? It's just one example out of 153 pages. What was he saying about

4 civilians? Who was persecuting them? Who was putting them in prison? Who

5 put them in Junuzovici houses? What does the Prosecution say together

6 with his witnesses, Mr. Naletilic is the Convicts Battalion. Look what

7 the second document say, another document.

8 Just one more document and I won't go reading any more because

9 it's really not fair. It should have all been in English. "The meeting

10 of the command held on the 21st of April, 1993, beginning at 1700 hours,

11 the following persons attended: Stipo Pole, although it says Stipo S.

12 Pole, Slaven, liaison officer for mortars, Zarinko Daric, A. Milicevic,

13 Blaz Azinovic, Stipe Kopilas, Matan Zaric, Dr. V. Ljuban, Ivo Zelenika,

14 and six more names. Not to waste any more time. Chaired by Stipo Pole."

15 It says, "Accommodation of the troops, kitchen and food, secured

16 through Posusje by Rogic. The pace of distribution of breakfast,

17 dry-lunch," then says, "Hot --" with something illegible -- "and

18 distribution of dry dinner and dry breakfast. Organisation of food for

19 prisoners in Sovici, transport of food," and then it goes on to describe

20 how all this is distributed. And this is just one example, Your Honours,

21 about the organisation, distribution of food, the accommodation of

22 prisoners. And just one more thing before I conclude.

23 What has the Prosecutor, together with his witnesses, been

24 claiming all the time? Who was in Sovici and who mopped up terrain,

25 devastated, destroyed, burnt? The Convicts Battalion. And ipso facto

Page 16908

1 Mr. Naletilic. Whereas here you read about a meeting - I singled this

2 out - 24th April 1993 starting 11.00. Again, participants are listed,

3 about a dozen names, submitting reports from the field. Here is one

4 report: "Sovici. Most of the combing operation carried out and

5 completed." So "combing and mopping up carried out. Continue with

6 combing the terrain." One entry: "All dead and wounded should be

7 recorded (Dr. Ljuban) and buried." And out of all names listed here, you

8 will remember who testified here before you, Your Honours, we could have

9 put some of these questions to them, couldn't we? We could have asked

10 them about the authenticity about this document. Wouldn't that have held

11 the justice and truth? What kind of explanation is this before an

12 international court rendering international justice? Something like this

13 couldn't happen in my village court in Croatia, believe me. That's all I

14 have to say. Thank you.

15 JUDGE LIU: Yes. Questions by --

16 JUDGE CLARK: I don't know whether we've been sitting too long and

17 whether anybody needs a break, because any questions may cause both sides

18 to address us further.

19 Leaving aside for a moment, Mr. Krsnik and Mr. Meek, the

20 misdemeanours or otherwise of the Prosecution and whether Mr. Scott is

21 responsible under 7.1 or 7.3, it is your duty to assist us in relation to

22 the allegations which you are making. Is there anything in that document

23 which you have read which is exculpatory of your client in relation to the

24 destruction of the mosque, the houses, the treatment of the prisoners of

25 the fish farm, or the treatment and the guarding of the civilian prisoners

Page 16909

1 in the Junuzovic -- I always have a problem -- Junuzovic houses and the

2 school? Because as I understand you to say a few minutes ago, that there

3 is something in those documents which indicates that the Mijat Tomic

4 Brigade guarded the civilians in that hamlet. Now, that is capable of

5 providing food for thought. But is there anything exculpatory in relation

6 to the mosque, the burning of the houses, or the prisoners at the fish

7 farm? That's what you have to address yourself to. Because, Mr. Krsnik,

8 can I say one thing: What we don't want to happen or I would hope

9 wouldn't happen is that an examination of these documents can introduce by

10 the back door any strengthening of the Prosecution case, because that

11 simply would not be fair. So be careful. Be careful if the document

12 provides corroboration for anything or is capable of providing

13 corroboration for anything which the Prosecution has alleged, because

14 after all, when you think about it, the Mijat Tomic, when it has meetings

15 in relation to its own business, is hardly likely to be dealing with the

16 instructions which other commanders would give to their battalions. Do

17 you understand me? I mean, there's nothing unusual about the commander of

18 the Mijat Tomic Brigade dealing with the duties for their soldiers. It

19 doesn't prove or disprove anything. It's neither probative nor

20 exculpatory. So will you concentrate your mind on those issues, if you

21 can, having read those documents.

22 MR. KRSNIK: [Interpretation] I am very grateful. I have to say

23 I've been reading these documents since the 5th of March every day.

24 That's about 15 days now. That's what crossed my mind first of all. I

25 didn't want the Prosecutor to laugh at me later on. I didn't want the

Page 16910

1 Prosecutor to get something through the back door. I couldn't understand

2 the reason for which the Prosecutor proceeded in this way, and that's why

3 I examined this.

4 And then, Your Honour, I understood how handicapped we had been

5 and with impudence, if I may say so - and I hope I won't offend anyone by

6 saying this - if I had had these documents, I would have examined the

7 first five witnesses who claimed that they didn't have a single gun quite

8 different. You know that they said that they didn't have any trenches at

9 all. How do you think I would have examined those other witnesses, the

10 witnesses who have been underlined here, my witnesses? That's the first

11 matter.

12 And then as far as exculpatory evidence is concerned, here the

13 commander of the battalion issues an order as to what his subordinates

14 should do, if I understand the Croatian language correctly. This should

15 be viewed as a whole. And Your Honour, I am claiming that there are

16 documents that are missing here. It's not complete. What we have been

17 provided with is a selection, and I am claiming this categorically.

18 Punish me if I am wrong. Why are there dates which are missing? Why does

19 it say the 23rd of March and then it doesn't have the 28th and 29th but

20 meetings were held every day and they're all contained in one notebook?

21 And do you know why we're making this claim? Because of the document that

22 we found. Do you see this one here? It has two different Prosecution

23 numbers but they come from the same notebook. The Prosecutor gave them to

24 me when we were examining the Witness NV [As interpreted] and he has also

25 provided it now as part of this document. It's the same text but two --

Page 16911












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Page 16912

1 they have two different Prosecution numbers. How is this possible? I am

2 claiming this is not complete. Not all the documents are contained here,

3 and I fear that there may be other exculpatory documents from this book of

4 documents and that's why they're not here.

5 And Your Honour, as -- I'm not afraid that the Prosecution's

6 thesis might be supported, and I am surprised by the fact that the

7 Prosecutor managed to read this. It's confirmed here. On the 24th of

8 April, the name of my client is mentioned. It says that he came -- I

9 don't know whether it was Doljani or Sovici. And that's all. Is that

10 forbidden? Or was that on the 16th? Doesn't that prove that he wasn't

11 there when -- during the period for which you claim he was there?

12 Your Honour, that's what I said. I am afraid that the Prosecution

13 views the matters in this way. If I'd been in Sovici on the 16th, what

14 would have happened then? Would I have ended up here as an accused also?

15 So, Your Honour, I think that after all we have been through this can --

16 should all be translated and only then we will have a view of this, but I

17 think that this entire notebook should be provided. You know, I'll never

18 accept the claim that my client should be convicted because the

19 Prosecution had too many documents or their database wasn't functioning.

20 So should my client go to prison because the Prosecution was inundated

21 with documents or because their database wasn't functioning? Are these

22 proper arguments to be presented before an International Tribunal?

23 JUDGE CLARK: Leaving that aside, Mr. Krsnik, address me on this -

24 it seems to be a good point that you're making and you made it a while

25 ago - that there are documents that show that -- or you say that these

Page 16913

1 documents indicate that the prisoners in the hamlet where the civilian

2 women and children were taken was guarded by the Mijat Tomic and not by

3 the Tutici or the Convicts Battalion. Address -- address us on that

4 again.

5 MR. KRSNIK: [Interpretation] I'm looking for the quote. Could you

6 please grant me a minute or two or perhaps we could have a break.

7 Mr. President, I don't know whether we need to have a break.

8 [In English] I don't know really.

9 I would like also to find all these sentences.

10 [Trial Chamber confers]

11 JUDGE LIU: Well, I think this hearing is approaching to its end.

12 Shall we continue sitting here until it's finished?

13 MR. KRSNIK: [Interpretation] Yes, of course but just allow me to

14 find the place, Your Honour, because I've marked all the relevant points

15 here, all the relevant parts.

16 JUDGE CLARK: It seemed to be the fifth point that you made, the

17 fifth or the sixth.

18 MR. KRSNIK: [Interpretation] Your Honour, I'm looking for the

19 quote. I want to find the exact quote.

20 [Defence counsel confer]

21 JUDGE CLARK: You said -- after the 16th of April, Mijat Tomic

22 took care of supplying and feeding persons. And then citizens were placed

23 in Junuzovici houses and cared for them Mijat Tomic and not by

24 Mr. Naletilic.

25 MR. KRSNIK: [Interpretation] Yes, that's quite right, Your Honour.

Page 16914

1 I'm trying to find the meeting where this occurred and where the subject

2 was mentioned because I've mixed up the dates of the meetings. I'll find

3 it in a minute, I hope.

4 [Defence counsel confer]

5 JUDGE LIU: Well, in this case -- in this case, we might have a

6 short break. We'll resume at 6.30.

7 --- Break taken at 6.13 p.m.

8 --- On resuming at 6.32 p.m.

9 JUDGE LIU: Yes, Mr. Krsnik. Have you found it?

10 MR. KRSNIK: Yes, Your Honour. I found two documents. Exactly

11 talking about all of these questions Judge Clark was asking.

12 [Interpretation] Perhaps I should be a little clearer. I am

13 always afraid of the translation, et cetera. So I want to be clear. What

14 are these documents? It's a collection, a collection of minutes of

15 meetings. It has dates from the command of the Mijat Tomic Battalion.

16 Each meeting is a separate document, has a separate document. Obviously

17 it comes from one notebook. We don't have the original, but this is what

18 I am assuming, a big notebook.

19 And now, to answer Judge Clark's question: Immediately, we have

20 two meetings that are specifically mentioned. The first was on the 20th

21 of April, 1993 and it started at 10.00 hours. All the commanders and

22 deputy commanders attended the meeting. I don't know if it's necessary

23 for me to read out all their names, Stipo Pole, Stipe Kopilas, Milicevic,

24 Ivo Zelenika, Ivica Tomic, Dr. Vlatko Ljuban, Darinko Azinovic, V.

25 Antunovic, A. Rados, M. Krtic [phoen], and it says M. Zaric was also

Page 16915

1 present, E. Rogic as well, and Jure Zelenika. Naturally these names are

2 important for us. I should read them out so that we can remember who our

3 witnesses were.

4 JUDGE CLARK: Sorry, is that E. Rogic or I. Rogic?

5 MR. KRSNIK: [Interpretation] Yes. I., I. Rogic.

6 JUDGE CLARK: Be careful.

7 MR. KRSNIK: Sorry, sorry, not E. -- I. I mean E.

8 JUDGE CLARK: I for Ivan.

9 MR. KRSNIK: Ivan, yes.

10 JUDGE CLARK: That's why I'm saying be careful. Remember what

11 that witness said.

12 MR. KRSNIK: Yes. But here, Your Honour, here is E. Rogic.

13 [Interpretation] I don't want to translate the way the other side

14 translated certain things. I want to read out what it says here. [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 And then this is what it says, "Sovici, another 14 soldiers from

19 the BH army surrendered. Get organised for further action, for further

20 action -- for further activities, and to take care of families. Doljani,

21 the guards must be vigilant when performing their duties and they must

22 find accommodation for population in houses." What else is important in

23 this document dated the 20th of April? Well, it mentions other tasks.

24 "Ivo Zelenika, with his men, should visit and search the area from

25 Doljani to Ilijina Gruda, the entire area." That's what's contained on

Page 16916

1 this document. And then on the 21st of April it continues and it mentions

2 everything that you asked me about, Your Honour. The document isn't very

3 long. Perhaps it wouldn't be a bad idea for me to read the entire

4 document out to you. And it wouldn't take long to translate. It could be

5 translated tomorrow it only consists of two pages because it's a separate

6 document.

7 This is what it states: "A meeting of the command held on the

8 21st of April, 1993 at 1700 hours. The following were present: S. Pole,

9 Slaven, liaison, commander, mortar commander Darinko Azinovic, A.

10 Milicevic, Blaz Azinovic, V. Antunov, it's probably Antunovic but it says

11 "Antunov." You can't see the rest. Stijpe Kopilas, Matan Zaric -

12 Zaric - Dr. V. Ljuban, Ivo Zelenika, Jure Groznica, Andjelko Rogic." And

13 I can't read this. And then the next name is "Marko Rozic, Andrija

14 Perkovic, and Jure Zelenika, Stipo Pole was the chairman: Accommodation

15 provided for soldiers. Marko Rozic submitted the report," the canteen and

16 food was secured via Posusje. A. Rogic. The distribution rhythm for

17 breakfast, dry-lunch," and then I can't read what follows. And then it

18 says, "Distribution of a dry-dinner ration too and also of a

19 dry-breakfast, organising food for prisoners in Sovici the following item

20 states transportation of food," and then the next item, "The commander

21 Berkan, Juka, and Ivo each morning submit to the assistant to the

22 commander the exact strength of troops." It says to the assistant

23 commander. I don't know the name. I can see that there is a dot there,

24 but the surname is Antunovic. "The strength of troops of our army should

25 be worked out immediately. M. Rozic. The number of civilian prisoners,

Page 16917

1 Ivica," the surname is illegible "and Blaz Azinovic by morning according

2 to category. Women and children to be provided with accommodation in

3 Memica Kuce, Memic's house, and security for Krkac. Provide food and they

4 themselves should gather livestock and guard prisoners." So it says the

5 tasks that they were given, "Supply food, guard livestock, and after that

6 guard prisoners. All able-bodied men to the home in Doljani. Women and

7 children to Junuzovici houses, the elderly to Sovici, and they are to look

8 after the cattle, the livestock disarming. All arms -- all weapons are to

9 be recorded via the logistics section according to their characteristics.

10 There must not be any abuse. Such cases shall be severely punished.

11 "Civilian authorities, include them in these activities to a

12 greater extent. It's important to be aware of the numbers concerned, and

13 they must be assembled."

14 Then it says -- I'm not sure. I think it says, "Coordination --

15 coordinate to which positions are to be taken up. Medical care for the

16 elderly, mostly for the elderly. A doctor shall be assigned." I think

17 that the second page is missing because I can see that there is a list of

18 items but I can't claim this for a fact because I don't know about this.

19 But, Your Honour, from this record it's quite clear who adopted --

20 who issued the order, who distributed the tasks, ranging from taking care

21 of civilians, feeding civilians, providing civilians with medical care,

22 and guarding them. It's not a Supreme Command. It's not a high command.

23 It's not according to orders from the high command. Here you quite

24 clearly see who was in command and who assigns tasks. This document can

25 be translated by tomorrow morning. It's a separate document. Read it.

Page 16918

1 Similarly, the one dated the 30th of May, on the same meeting they

2 assigned tasks according to which civilians should be taken to certain

3 locations. And you know the kind of testimony we had here and you are

4 aware of the witness who claimed the contrary and even mentioned my

5 client. Here we can see that we have an individual order and we can see

6 who issued the order, who distributed the task, and we can see who the

7 people who were present are. And the date is the 21st of April.

8 If this isn't exculpatory, I really don't know what is. Because

9 if when the Prosecutor was writing the indictment, if he had this, he

10 certainly wouldn't have said that my client -- that the Convicts Battalion

11 was guarding the civilians, that they took them to prison, because that

12 was claimed in the indictment and the Prosecution's witnesses claimed the

13 same.

14 But have a look at what it says here. It's not necessary to

15 translate a lot of documents. We can translate two or three documents.

16 Let's translate the document dated the 20th of April and the document

17 dated the 6th of May, and I'll read it out to you once more. Again, there

18 were ten people present, Stipo Pole, the commander, chaired the meeting

19 and he assigned the following tasks: "The other civilian prisoners shall

20 be transferred to designated locations." Again, it's a separate order.

21 It states with the civilians are to go, and it states who is to guard

22 them. It's the military police. We heard about this in testimony. It

23 wasn't the Convicts Battalion who guarded them. When the unfortunate fate

24 of Cikota was hence mentioned he died about 10 kilometres from this place

25 as the crow flies and this is what we have been claiming all the time we

Page 16919

1 know when he was killed too. And up until the 24th, well, everything that

2 the Prosecution mentioned in the indictment, all those events had been

3 finished, the mosque, et cetera. So these documents are of crucial

4 importance because the unfortunate Cikota died at elevation 402 and it's

5 only 10 kilometres from Sovici as the crow flies. It's up in the hills.

6 And you can see who was assigned tasks and you can see who was engaged in

7 Sovici.

8 And Your Honour, this is why I suggest that at least the minutes

9 of these three meetings, the 20th of April, the 21st of April, and the 6th

10 of May, these three pages which are A4 format should be translated so that

11 you can read them. We can forget about everything else.

12 [Defence counsel confer]

13 MR. KRSNIK: [Interpretation] Naturally, everything should be

14 translated, but we could have at least these three documents rapidly

15 translated, because when you say this is an exculpatory document, well, if

16 this doesn't contradict the indictment, then I don't know what does. And

17 if it doesn't contradict the testimony of witnesses.

18 Your Honour, I have nothing else to say, unless there are any

19 questions you would like to ask. But, Your Honour, I -- there was one

20 thing I forgot: This is all stated in the indictment, which was in the

21 court in Konjic. It's all in the court record, and I asked for this. The

22 same facts are mentioned in the court record according to the indictment

23 against these people who are mentioned here. And when we requested this

24 from the Prosecution, we only received some of the records because again,

25 we were told by the Prosecution that it wasn't important.

Page 16920












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Page 16921

1 JUDGE CLARK: Mr. Krsnik, we could probably be here for a very

2 long time discussing the difference between testimony that might be

3 relevant and testimony that is capable of being exculpatory. Much of what

4 you read out, if not everything, is confirmatory of what we have heard

5 from witnesses, but it doesn't advance your case because the prisoners

6 were detained from the 20th of April allegedly until the 6th of May, and

7 reading something to us on the 21st of April doesn't show that it's

8 exculpatory, although it may have been relevant.

9 But I have a few questions, with the leave of the President, to

10 ask of the Prosecution for the moment.

11 Mr. Scott, can you tell me on what basis the Prosecution decides a

12 document is either relevant or exculpatory if it's not translated. I

13 mean, how can you decide at an early stage?

14 MR. SCOTT: Your Honour, the document was reviewed -- first of

15 all, some of the members of the investigation Prosecution team actually

16 read a fair amount of Serbo-Croatian, number one.

17 Secondly, it is commonplace in the OTP for documents to be

18 reviewed with the assistance of a language assistants, to sit next to the

19 language assistant, go through a document, have the document read out

20 loud. In addition to that, there were indeed, as we said yesterday, some

21 passages that were picked out and parts were translated, and those were

22 also reviewed. So a number of ways, Your Honour, Judge Clark, and it's

23 not unusual. It happens almost every day. The Prosecutor, a lawyer, an

24 investigator, sits down with an untranslated document with an interpreter

25 and goes through the document. That's how it was done.

Page 16922

1 JUDGE CLARK: Very good. And then the next point I want to make

2 is do you have a response to make to Mr. Krsnik's valid assertion, his

3 valid assertion that the contents of this fairly lengthy - it's not a

4 diary, but collection of minutes - will indicate that there is nothing

5 whatever to support the contention, the allegation by the Prosecution that

6 the civilian prisoners, the women and children in the Junuzovici houses

7 were guarded by the KB who played a role in their transfer?

8 MR. SCOTT: I'm sorry, Judge Clark. I'm trying to follow the full

9 gist of the question.

10 Your Honour, we -- it's again our position that the diary that --

11 excuse me, these minutes are fully consistent with the Prosecution case,

12 as Your Honour noted just a moment ago. They were confirmatory. The fact

13 that there were a number of people, clearly in the Sovici-Doljani area,

14 there were different houses and different people being guarded in

15 different places at different times. Now, Mr. Krsnik, he told us that

16 he's been reading these documents every day since the 5th of March. The

17 Chamber has been extremely patient with him this evening, took a break,

18 gave him another 15 minutes. And despite that he's read the documents

19 every day since the 5th of March and despite the fact that he had an

20 additional 15 minutes he comes up with three passages and that's the best

21 he can do, and none of those passages are inconsistent with the

22 Prosecution case. Clearly the -- Mijat Tomic was involved in the area.

23 Of course they were. They were the local battalion. That there were

24 minutes of what they were doing and providing logistics and were helping

25 civilians -- and I note it doesn't say prisoners in many instances it says

Page 16923

1 civilians. There were Croat civilians that had to be cared for as well.

2 Judge Clark, Your Honours, if those three instances are the best that he

3 can do, it further confirms the Prosecution position that indeed nothing

4 in this document is exculpatory.

5 Just one other specific response: On the 6th of May, the Chamber

6 will recall it was on the 4th of May that most of the women and children

7 were in fact put on buses and expelled. There were some residual

8 prisoners. It's on -- for instance, I have -- during the break I pulled

9 out our final brief on Sovici-Doljani and on page 73 of our final brief it

10 talks about on or about the 4th or 5th of May, approximately 470 Muslim

11 women, children, and elderly were gathered from the Junuzovici houses and

12 elsewhere and taken away. The fact that there were some residual

13 civilians still in the area on the 6th of May, which may or may not have

14 been guarded by the Mijat Tomic Battalion, is neither here nor there.

15 JUDGE CLARK: I think you're right about the 4th of May. I was

16 surprised about that, and just assumed that I had made a mistake.

17 Mr. Krsnik seems to be making the point that the documents by

18 inference, because they fail to mention the Convicts Battalion or

19 Mr. Tuta, exonerate him. But my recollection is that a document that you

20 exhibited in your second motion actually was a document we saw in court

21 mentions Mr. Tuta, but it is outside the period of the -- of the charge in

22 the indictment. So it's not -- it's not correct to say that Mr. Tuta's

23 name is never mentioned. But what he is saying, if I understand you

24 correctly, Mr. Krsnik, is that rather like the indictment that's called

25 the Konjic indictment, the absence of mention of the Convicts Battalion in

Page 16924

1 material places and on material dates is capable of being exculpatory. Do

2 I correctly paraphrase your argument?

3 MR. MEEK: [Microphone not activated] I think that's correct, Your

4 Honour, number one, and number two --

5 JUDGE LIU: Your microphone, please.

6 MR. MEEK: Oh, I'm sorry. I thought I had it on.

7 I believe that would be correct. And it also, Your Honour, when

8 we talk about exculpatory evidence, I seem to get a feeling from the Bench

9 and from Your Honour Judge Clark that the exculpatory evidence somehow has

10 to be pure exculpatory evidence. And I note that on page 37 you actually

11 spoke about that.

12 Exculpatory evidence could be pure exculpatory evidence. Because

13 of the burden of proof in this proceeding and the burden of proof is on

14 the Prosecution beyond a reasonable doubt, we have no burden of proof. We

15 may bring up evidence that tends to cloud the evidence that the

16 Prosecution presents, which then becomes exculpatory because it raises a

17 reasonable doubt as to the evidence that's being presented by the

18 Prosecution. So I get the feeling from some of the comments that the

19 burden somehow is on the Defence to prove the innocence, and that's not

20 the case. And we all know that, Your Honour, and I know that, you know

21 that. But there are more forms of exculpatory evidence than the pure

22 exculpatory evidence which I think you're looking for. Other types of

23 exculpatory evidence could be evidence which goes to counter-evidence

24 brought by the party that has the burden of proof, which would thereby

25 raise a reasonable doubt, which would thereby stand for a not guilty

Page 16925

1 finding.

2 JUDGE CLARK: We have to recall what the President said at the

3 beginning of this case is that we were in the very final stages of our

4 deliberation when we were asked to stay our deliberations, and therefore,

5 he said, that the onus was on you at this stage, you the Defence, to prove

6 to us that this particular series of documents that were recently

7 disclosed were capable of being exculpatory and therefore to stop our

8 deliberations. It's quite a different matter from something during a

9 trial and it's quite technical. It's a very unusual situation that we all

10 find ourselves in. But thank you anyway.

11 I just think that Mr. Scott was attempting to respond.

12 MR. SCOTT: Your Honour, I -- during the break I pulled out the --

13 again, the Sovici-Doljani part of the closing brief, and obviously I read

14 it quite quickly. But Your Honour, you know, the problem of course is we

15 can sit here and argue and probably go all day tomorrow rearguing the

16 whole case. Nothing that -- the three documents that Mr. Krsnik just took

17 you to, the three items, which again I submit to you represents the high

18 water mark of his efforts. That's the best he can do. And none of those

19 documents when I reread the brief and what happened on which day and what

20 prisoners were there, none of it is -- none of those things are

21 inconsistent with the Prosecution's case.

22 You know, again, without going through, simply pulling out

23 transcripts of witnesses and rereading every Sovici-Doljani witness and

24 showing you how nothing that's been said has been inconsistent, I just

25 don't know how else to do it. We've reviewed it.

Page 16926

1 Judge Clark, I assure you I meant what I said. When we reviewed

2 the case -- when we found the document again in January and reviewed it,

3 it was seriously considered. We went through it -- we went through the

4 document. It was put against the evidence in the case. It was put

5 against the charges, not all kinds of other things. We could talk about a

6 gillion [phoen] places where Mr. Naletilic wasn't on a given day. He

7 probably wasn't in Sarajevo in a given day either. He probably wasn't in

8 Zagreb on a given day. That's beside the point. There's nothing in this

9 document that is inconsistent with the Prosecution case or exculpates

10 Mr. Naletilic.

11 JUDGE CLARK: What was the purpose, Mr. Scott? What was the

12 purpose of serving them on the other side at this stage then? I mean, if

13 they had -- they were so unimportant that you didn't need to serve them,

14 why did you serve them? If they -- if they weren't exculpatory, why did

15 you serve them? What could Mr. Krsnik reasonably have done with those

16 papers?

17 MR. SCOTT: Well, probably nothing. In fact, he has done nothing

18 with them. That's a separate issue. I've told the Chamber repeatedly in

19 our papers and orally we did it out of an abundance of caution. Mr. Meek

20 himself said to us an hour or so ago that the Rados diary was a hotly

21 contested piece of evidence. When we reviewed the document again in

22 January/February, and it was by Alojz Rados, concerning the same man in

23 the same handwriting and it was a document that clearly does relate --

24 that doesn't makes it exculpatory but it does relate to another document

25 that was hotly contested, and it was simply a judgment call. And as I

Page 16927

1 said before, going the extra mile to say, "Look, we don't think it's

2 exculpatory but let's simply give it to them." Now, they have the

3 opportunity. They have had the opportunity in fact because we went the

4 extra mile -- they've had the opportunity to come into this chamber, make

5 written filings, and take two hours of this Chamber's time trying to argue

6 and trying to convince you that it's exculpatory. They haven't done that.

7 It's not the Prosecution's fault. The Prosecution went above and beyond

8 what we thought we were required to do. The Chamber has given Mr. Krsnik

9 every opportunity to make his case and he hasn't done so. That's our

10 position.

11 Mr. President, I must say that I had no -- I see Mr. Krsnik on his

12 feet again. It's 7.00. I had no -- I have a personal obligation this

13 evening. I had no idea that we were going to go on for hours on this. If

14 you want to reschedule the hearing, Mr. President -- if you want the

15 hearing to go on because Mr. Krsnik, as we know from past experience, will

16 be on his feet as often as the Court will allow.

17 Now, if we're going to continue, Mr. President, I ask the Chamber

18 to recess and reschedule the hearing.

19 JUDGE LIU: Well, Mr. Krsnik, you know we are under a very tight

20 schedule and we heard your case already. Would you please allow me to ask

21 one question, just one question to the -- to Mr. Scott.

22 Yes. The sitting will be over in five minutes, in five minutes.

23 I just have one question to Mr. Scott. I'm very suspicious about that

24 extra mile. I would like to know about on what legal basis did you

25 disclose those materials? I understand on many occasions that if somebody

Page 16928












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Page 16929

1 did something just out of abandoned caution and good faith, it's not good

2 enough, that might be doing that in violation of the Rules of Procedure.

3 MR. SCOTT: Well, Mr. President, let me say that I'm disappointed

4 and saddened to hear that the Chamber would be suspicious. I thought the

5 Prosecution has gone about its business in the last 18 months to try to

6 indicate that we have been reliable and credible in our presentations to

7 the Chamber, and I am deep -- I am saddened, saddened to hear that. I can

8 only give the answer -- maybe it will help if I say it this way: I once

9 had a Federal -- a respected Federal Judge in Denver, where I practiced

10 before, in a case say, "Mr. Scott, you're a person not only who wears a

11 belt but he also wears suspenders." And this is a case in which we simply

12 said for all the reasons I've said -- Mr. President, I can only say what

13 I've said before. We simply said, "Let's just give it to them." Let's

14 avoid any issue about whether we disclosed it or not, length just simply

15 give it over. Now, I've told Mr. -- I have to say I told Mr. Bos as a

16 young lawyer, I said, "Mr. Bos, Roland, I suppose the moral of this story

17 is don't do anything more than what you absolutely have to do." And if

18 that is the moral of the story, that's very unfortunate. That's very

19 unfortunate.

20 JUDGE LIU: Well, did you look into the Rule 66(C) and try to rely

21 on that rule, or did you look into the jurisprudence of this Tribunal,

22 especially on the Furundzija case where Judge Mumba, I believe, made a

23 decision on similar situations?

24 MR. SCOTT: Mr. President, I didn't look at any jurisprudence in

25 the Tribunal. I looked at my heart and I said, "Let's disclose it." And

Page 16930

1 it was disclosed. And now apparently we can only say -- perhaps we regret

2 disclosing it because the Chamber's view seems to be if we were not

3 strictly required to disclose it, then we should not have disclosed it at

4 all.

5 JUDGE LIU: Thank you.

6 I think it's time to close this hearing, and this Trial Chamber

7 will reserve its decision after deliberations on this very point.

8 The hearing is adjourned.

9 --- Whereupon the Motion Hearing

10 adjourned at 7.08 p.m.