Tribunal Criminal Tribunal for the Former Yugoslavia

Page 419

1 Monday, 11 October 2004

2 [Open session]

3 --- Upon commencing at 9.02 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: So, Mr. Registrar, good morning to you. Could you

6 call the case, please.

7 THE REGISTRAR: Your Honours, good morning. Case Number

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: I thank you, Mr. Registrar.

10 Mr. Oric, good morning to you.

11 THE ACCUSED: [Interpretation] Yes, Your Honour.

12 JUDGE AGIUS: Can you follow the proceedings in a language you can

13 understand?

14 THE ACCUSED: [Interpretation] I didn't understand anything.

15 JUDGE AGIUS: I will repeat the question just in case there is

16 something wrong going on with the interpretation. Mechanical I would

17 imagine. It's okay.

18 Can you follow -- can you hear me in the first place and can you

19 follow the proceedings in a language that you can understand?

20 THE ACCUSED: [Interpretation] Your Honour, yes. I can follow and

21 I hear you well. Thank you.

22 JUDGE AGIUS: I thank you. Please take a chair.

23 Appearances for the Prosecution.

24 MR. WUBBEN: Good morning, Your Honour. My name is Jan Wubben

25 senior trial attorney together with co-counsel Ms. Patricia Sellers,

Page 420

1 Mr. Gramsci Di Fazio, and case manager Ms. Donnica Henry-Frijlink.

2 JUDGE AGIUS: I thank you and your team.

3 Appearances for the Defence.

4 MS. VIDOVIC: [Interpretation] Good morning, Your Honour. My name

5 is Vasvija Vidovic, and together with my colleague John Jones I am Defence

6 counsel for Naser Oric. Our case manager Mr. Geoff Roberts is with us and

7 Miss Jasmina Cosic our legal assistant.

8 JUDGE AGIUS: I thank you, and good morning to you and your team.

9 Before we proceed with the normal business that we have on our

10 agenda, this morning at about 8.00 or whatever time it was I came to my

11 Chambers only to find my secretary, my assistant and the assistant of

12 Judge Eser and Judge Brydensholt already there trying to sort out all the

13 documents that were indicated as needed for today's sitting. And they

14 were complaining, very rightly so I must say, because the list of the

15 documents that were needed for this morning's sittings was only handed to

16 them after 5.50 last Friday.

17 Fortunately I have not had to deal with such inconveniences more

18 than twice or three times in the last three years. So I have every reason

19 to believe this will not happen again. But please do try when it's a

20 weekend approaching that the list indicating the documents, the documents,

21 if I said witnesses before I correct myself, I don't know what I did, but

22 the list indicating the documents be given in good time to our staff

23 otherwise they will either have to stay here overtime, or else, like

24 happened over the weekend, come here before everyone else on a Monday

25 morning to sort out the problem. I hope it will not repeat itself and I'm

Page 421

1 sure you will deal your utmost. At the moment we are dealing with the

2 Prosecution case. Later on the same thing will be applied to the Defence

3 when they come to their case.

4 But this, the list of the documents, I take it, was handed to them

5 after 5.30 on Friday. Yes, Mr. Wubben.

6 MR. WUBBEN: Your Honour, I duly apply for any inconvenience

7 caused. I took it as information that it was handed over earlier and I

8 take it that it was at that time and, if so, we will try to do our best at

9 the utmost that this will be --

10 JUDGE AGIUS: I'm sure you will. I don't doubt it in the least

11 for a moment, but please make sure that you will.

12 Yes, Mr. Jones.

13 MR. JONES: Yes, Your Honour, I'm not sure we have the documents

14 you referred to which are for today's sitting --

15 JUDGE AGIUS: I don't really -- received the list myself, it never

16 comes to us. What usually happens, Mr. Jones, is the -- our staff

17 receives a list like this which basically says: Trial number P whatever

18 and then the ERN number and then the description of the exhibit. For

19 example, the first one is P100, decisions of the staff of Srebrenica,

20 armed forces.

21 MR. JONES: We haven't received that at all.

22 JUDGE AGIUS: That's even worse. That's even worse because you

23 should be prepared well before, that is in good time, to know which

24 documents the witness is going to be examined upon.

25 MR. JONES: We had to go through a very elaborate process of

Page 422

1 locating through ERN numbers, documents, printing off them ourselves to

2 try and understand how the reports will be presented today.

3 If I may touch on another matter, although perhaps we should come

4 to it later but you will also-- seen our urgent motion.

5 JUDGE AGIUS: Yes, yes, but we talked -- let's stick to this

6 first. Is Mr. Jones correct in saying that he did not receive a similar

7 document?

8 [Trial Chamber and registrar confer]

9 MR. WUBBEN: Your Honour, the Prosecution team believes that --

10 JUDGE AGIUS: Yes, one moment. Perhaps before you speak you can

11 verify this. The information that I am getting now that usually it is

12 sent to the e-mail address of the case manager.

13 MR. WUBBEN: That's correct.

14 JUDGE AGIUS: So perhaps you can check. I mean in the other --

15 all the other cases that I have been dealing with, this problem has never

16 arisen. So I don't see why it should arise in this case.

17 MR. JONES: Yes, well our case manager and CaseMap manager

18 informed me that they checked their e-mail at the weekend and they hadn't

19 received it.

20 MR. WUBBEN: Your Honour, at the same time as Chambers and the

21 registrar in my administration -- verification of the case manager we sent

22 it to their case manager.

23 JUDGE AGIUS: We have the problem of the case manager saying that

24 he has not received them, which puts me on the defensive because I don't

25 know what to say. In anything, if necessary, and if you think you ought

Page 423

1 to -- you need the time, I will let you have a copy of this, Mr. Jones, or

2 the registrar will and give you sufficient time to identify these

3 documents and to have them ready.

4 MR. JONES: Thank you, Your Honour. We are -- as I say, we did go

5 through an exercise of printing off the documents so we are ready

6 nonetheless. But --

7 JUDGE AGIUS: If you require time we will give you time.

8 MR. JONES: Our manager will check his e-mail at the break and see

9 if he received it. We checked at the weekend and it's not there.

10 JUDGE AGIUS: In the past I have had complaints from the Defence

11 of this arriving at the eleventh hour, not allowing much time, et cetera,

12 but not that it was not received. So please check into this and let's

13 hope these are just teething troubles that we are having in this case as

14 we try to start. I say as we try to start because last Friday then after

15 5.30 or whatever time it was, I don't remember what time it was, I was

16 informed by my legal officer that she had been informed in turn by the

17 Prosecution, by Ms. Sellers in particular, that the Prosecution had

18 decided to withdraw Professor Gow from the list of witnesses. This was

19 soon followed by another phone call informing me that the Defence had

20 filed an urgent motion, which we will be returning very, very, very soon.

21 In any case, we decided to postpone the matter until this morning and we

22 will discuss it now.

23 MR. JONES: I'm on my feet, Your Honour, because it's our motion

24 and I can elaborate on the motion.

25 JUDGE AGIUS: Before you speak on your motion, however, I just

Page 424

1 want to make it clear that we did not view very positively the idea of

2 withdrawing a witness, an important witness, two days before he is

3 supposed to give evidence. Particularly taking into consideration the

4 fact that as expected, him being an important witness, the Defence must

5 have spent hours reading that report and preparing for the

6 cross-examination, a statement which they confirm in the urgent motion. I

7 have come across this in my life before as a Judge, as you can imagine it

8 has happened before. I am not going to ask you why you have decided to

9 withdraw your witness because it's within your right to decide who to call

10 and who not to call. Certainly you should have given the matter more

11 consideration and definitely not at the time which is very proximate to

12 the day when this person was supposed to be giving evidence. It's lack of

13 consideration in regard to the Defence and lack of consideration in regard

14 to the Trial Chamber that does its utmost to make the best use of the time

15 that we have available. It's very easy for you to come forward and say,

16 yes, but on Wednesday don't worry, Judges, we will bring Ms. Manas. But

17 we were on the pretext that what I heard Mr. Jones say in open court last

18 week that he was -- they needed three days to cross-examine this witness,

19 we were anticipating that the whole week or the rest of the week, starting

20 from Wednesday onwards, will be dedicated to Professor Gow and possibly

21 even Monday, the first day of next week, like this, it's a complete

22 disruption of the whole programme.

23 I mean, I can't look straight in the eyes of Madam Vidovic or Mr.

24 Jones and say: Be patient. Don't worry. Wednesday we'll hear Manas and

25 it's not a big problem because she is not the kind of witness that calls

Page 425

1 for a lot of preparation on the part of the Defence. But if you intend

2 also to bring forward other witnesses who have given statements that the

3 Defence have got to read, et cetera, that is lack of consideration, lack

4 of consideration. So the very first thing I am going to do is to appeal

5 to your good selves and to possibly reconsider your decision to withdraw

6 Professor Gow. I know you are entitled to withdraw Professor Gow because

7 it is in your rights, that much I know. But I also know that the

8 consequence of this is that you will leave out of your case, out of your

9 case the only expert evidence that you tended to bring forward as to the

10 existence of a conflict, character of a conflict and the historical and

11 political background leading to the events that we talk about in this

12 case. It's true that that gap can be filled by the Defence, it's true

13 that that gap can be filled by the Trial Chamber itself. But my

14 suggestion and my exhortation to you is to take time and reconsider your

15 decision. I would have nothing against postponing the evidence of

16 Professor Gow from now until later. I have absolutely nothing, even

17 though this may cause annoyance and inconvenience to the Defence. But I

18 have no objection to that, but I do seriously and the three of us are in

19 agreement on this. We look with concern. I mean, it's -- we are very

20 unhappy with the fact that you have taken your decision when you have

21 taken it and the way you have taken it. Of course you are entitled to

22 take that decision.

23 Yes, who is going to react? You, Mr. Wubben?

24 MR. WUBBEN: Yes, thank you, Your Honour. Well, please be

25 informed that we immediately as a first reaction informed Defence counsel

Page 426

1 by telephone and then wrote them a letter to confirm it and also Chambers

2 to confirm on Friday. And that was right after the decision-making. When

3 it comes to giving consideration, we tried to give it consideration and we

4 took the decision in line of the developments within our own strategy, the

5 indictment, the changes and from the beginning on our approach and also

6 referring to our opening statement. That means, however, that the point

7 is and the request is well-taken. And I will get back to you, if you

8 allow me, Your Honour, after the break.

9 JUDGE AGIUS: I thank you and we will discuss the motion after the

10 break then.

11 MR. JONES: Yes, Your Honour, may I add --

12 JUDGE AGIUS: Yes. If it's the case, remark. Yes, Mr. Jones.

13 MR. JONES: Firstly, Mr. Wubben said that they immediately

14 informed the Defence. As you have seen in our motion we received a phone

15 call at 5 to 5.00 on Friday afternoon --

16 JUDGE AGIUS: Mr. Jones it would have infuriated me if I were in

17 your shoes. It would have infuriated me.

18 MR. JONES: That's one point obviously, and the inconvenience.

19 But there's another point and that's why I make it now which is to do with

20 truth and reconciliation which Your Honours referred to. Your Honours

21 referred to the importance of the trial as a discovery of the truth and

22 the importance of these trials to achieve reconciliation in the region.

23 And we just wonder what message it sends about discovery of the truth that

24 the Prosecution want to drop the one witness who could start this trial by

25 giving a complete picture of the political, historical, military

Page 427

1 background and instead they want to start with a labourer, I believe it

2 is, from a town called Jezestica, which Your Honours won't know.

3 JUDGE AGIUS: But that's their choice. I -- as you know,

4 Mr. Jones, this is an adversarial system predominantly or preeminently an

5 adversarial system and the Trial Chamber interferes as little as it can or

6 tries not to interfere at all with the way each party decides to present

7 its case. But on the other hand there are ways and means and --

8 MR. JONES: Yes, indeed, Your Honour. I make that point --

9 JUDGE AGIUS: Try to start the concept of having trials being

10 conducted by means of surprises and hidden cards et cetera is long gone.

11 It's finished. That was the last century, or the beginning of this

12 century. Nowadays it's no longer like that.

13 MR. JONES: That's our concern, the tactics that are being used,

14 tactics allowing us to waste time on the witness when the Prosecution in

15 all possibility knew they were going to drop the witness. And in that

16 regard I was wondering if Your Honours received the report of Dr. Gow.

17 JUDGE AGIUS: Well, we received-- that is another matter that

18 obviously we will deal with. I understand. I haven't seen it but I

19 understand that the report of Dr. Gow was amongst the documents that were

20 tendered in the last sitting.

21 MR. JONES: If Your Honours didn't receive it, I would indicate an

22 earlier decision --

23 JUDGE AGIUS: I don't know if we have received it or not, to be

24 honest with you. But in any case if this witness is going to be

25 withdrawn, that document will also be sent back to the Prosecution because

Page 428

1 we will not keep it in our file unless we decide otherwise. But --

2 MR. JONES: I'm obliged, Your Honour. I'll reserve my remarks

3 to --

4 JUDGE AGIUS: I don't think we ought to discuss that for the time

5 being. I still am hopeful that the good sense of the Prosecution will

6 prevail. I mean it's too late in the day to withdraw such an important

7 witness. The end result is we may have to call one ourselves, end result

8 is you may have to call one yourselves. I don't know.

9 MR. WUBBEN: Well, Your Honour, as I stated, I get back to the

10 Bench after the break --


12 MR. WUBBEN: Let me first protest against the insinuations by

13 Mr. Jones with all respect to this counsel. Using the word like

14 "tactics", it isn't right. I pointed out the change of the indictment in

15 my opening statement, and if you look at the indictment from -- the past

16 indictment from July 2003 and the latest indictment from last week, you

17 will notice the difference, and you have of course -- but also that might

18 change the nature and volume of the testimony given. So these are

19 important changes and there is no way of tactics or abuse. And the tone

20 of it, I'm really disappointed. That's not constructive.

21 MR. JONES: Your Honour, I do have to respond to that --

22 JUDGE AGIUS: No, I think we can leave it at that, Mr. Jones.

23 Come on, let's not create a chain of incidents.

24 MR. JONES: It's simply that this is a --

25 JUDGE AGIUS: Leave it, Mr. Jones, leave it.

Page 429

1 MR. JONES: It's simply in -- the indictment was amended two weeks

2 ago. The Prosecution has had two weeks to consider that and they still

3 had Dr. Gow on the list, so that's not an explanation.

4 JUDGE AGIUS: The -- incidentally I'm informed by my LO that the

5 Gow report was filed. I don't know about it because it was filed when the

6 case was not yet assigned to this Trial Chamber. So it was filed with

7 Trial Chamber III which was then presided by Judge Robinson. However, I

8 can assure you that none of us have read this expert report and I actually

9 thought it was much bigger than this. But anyway, it's -- I'm being --

10 yes ...

11 So we'll come to this later and, Prosecution, try to heed our

12 advice.

13 First witness is Professor -- is it professor or Dr.?

14 Doctorandus W.F.P. Fagel.

15 MR. WUBBEN: Your Honour, he is Doctorandus. That's a kind of --

16 JUDGE AGIUS: How should I address him? How should I address?

17 Dr.?

18 MR. WUBBEN: Doctorandus.

19 JUDGE AGIUS: Doctorandus?

20 MR. WUBBEN: Doctorandus.

21 JUDGE AGIUS: Doctorandus.

22 [Trial Chamber confers]

23 MR. WUBBEN: Your Honour, before we start with the witness is it

24 possible at this very moment to tender the declarations of -- and

25 attachments of Stephen Tedder and Barney Kelly has announced already and

Page 430

1 accepted by the Defence.

2 JUDGE AGIUS: Any objection on your part, Mr. Jones?

3 MR. JONES: No.

4 JUDGE AGIUS: Yes, go ahead, Mr. Wubben.

5 MR. WUBBEN: Please call the witness.

6 [Trial Chamber confers]

7 [The witness entered court]

8 JUDGE AGIUS: Mr. Wubben, I suppose the witness is

9 English-speaking, isn't he?

10 MR. WUBBEN: Yes, he is English-speaking.

11 JUDGE AGIUS: Good morning to you, sir.

12 THE WITNESS: Morning.

13 JUDGE AGIUS: Welcome to this Tribunal. You are about to start

14 giving evidence in this case, instituted by the Prosecution against Naser

15 Oric. And our rules require that before you do so you enter a solemn

16 declaration equivalent to an oath that in the course of your testimony you

17 will be speaking the truth, the whole truth, and nothing but the truth.

18 Our usher will hand you the solemn declaration. Please read it out loud,

19 and that will be your solemn undertaking with us. Thank you.


21 THE WITNESS: I solemnly declare that I will speak the truth, the

22 whole truth, and nothing but the truth.

23 JUDGE AGIUS: Thank you. Please take a seat.

24 You are first going to be asked a series of questions that we

25 refer to as the examination-in-chief by Mr. Wubben. He will ask you to

Page 431

1 tell us who you are and what your qualifications and experience are and

2 then the reason for your presence here and the rest of the information

3 that will be asked from you. And then later on you will be cross-examined

4 by -- who is going to cross-examine --

5 MR. JONES: I will be, Your Honour.

6 JUDGE AGIUS: -- by Mr. Jones on behalf of the Defence team.

7 Yes, Mr. Wubben, he is all yours.

8 MR. WUBBEN: Thank you, Your Honour.

9 Examined by Mr. Wubben:

10 Q. Witness, may I have your name, please?

11 A. My name is Wilhelmus Petrus Franciscus Fagel.

12 Q. And what's your age?

13 A. Age is 45.

14 Q. And what's your occupation?

15 A. I am a forensic handwriting examiner.

16 Q. You are a forensic -- in an institute?

17 A. I am working for the Netherlands Forensics Institute in The Hague.

18 Q. Thank you. Is that in a laboratory?

19 A. The Netherlands Forensic Institute is part of the Dutch Ministry

20 of Justice as a relatively autonomous service.

21 Q. And I take it that it is independent more or less?

22 A. Yes. We are not a police laboratory and it's not part of the

23 Prosecution division.

24 Q. How long are you employed as such?

25 A. 21 years and a couple of months more.

Page 432

1 Q. What are your present duties?

2 A. I'm still working as a handwriting examiner full time.

3 Q. Tell me about your formal education.

4 A. I have studied psychology at the University of Amsterdam and

5 specialised in psycholinguistics, and graduated with a subsidiary in

6 general linguistics in 1978. Then I've been working for a few years for

7 the University of Amsterdam before I joined the Netherlands Forensic

8 Institute in 1983.

9 Q. What other training do you have related to this job?

10 A. I got my training fully at the Netherlands Forensic Institute by

11 so-called training on the job and literature studies.

12 Q. Did you or are you a member of an international network of

13 colleagues, forensic experts?

14 A. I'm a member of a European organisation called GFS which stands

15 for Gesselschaft fuer Forensische Schrift, schrift [sic] expertise and I

16 am also a member of the steering committee of the European network of

17 forensic handwriting examiners. Actually, I'm at the moment the chairman

18 of this steering committee. This is one of the expert working groups of

19 the European Network Forensic Science Institute.

20 Q. Is this part of a kind of network also of institutes for

21 laboratories?

22 A. It's a network, an organisation of police and government forensic

23 institutes in Europe.

24 Q. And how do you maintain or do you know the quality of your work,

25 is that also shared or not?

Page 433

1 A. Yes, we have regular meetings where we try to describe or

2 harmonise our methods among other things and exchange other information.

3 If we have some special cases we might show it to other people and we

4 organise conferences, et cetera.

5 Q. Is this just a few countries who have to cooperate on this or is

6 it more --

7 A. Most European countries have one or more institutes which are part

8 of this organisation.

9 Q. Did you publish also articles or books or whatsoever from your

10 profession?

11 A. Yes, I did.

12 Q. Can you tell me something about it.

13 A. Well, before I joined the Netherlands Forensic Institute, I

14 published some articles on forensic -- not on forensic, but on speaker

15 identification, et cetera, but it's not very relevant, so I will limit

16 myself to the relevant articles on handwriting examination. Well, I think

17 I published some -- among others an article on the method -- our method,

18 methodological aspects of handwriting identification in the Journal of

19 Document Examination and, well, a few other articles. I don't know if you

20 want me to --

21 Q. No, no thank you, but is it throughout the years or only recent

22 or ...

23 A. I think I published the first article in 1986 and, well, it's

24 about -- the last one in 2003. It's, I think, about one article a year,

25 maybe some more, maybe some less.

Page 434

1 Q. How many handwriting examinations do you apply in a given year?

2 A. On the average I've done about 100 examinations in a year in the

3 last 21 years.

4 Q. Can you give as an estimation of the total number?

5 A. Must be more than 2.000, I think.

6 Q. Do you make such analysis as a regular part of your duties?

7 A. Yes, I do.

8 Q. Did you ever testify in a Tribunal or in court before?

9 A. I did, but only in Dutch court.

10 MR. WUBBEN: Your Honours, I need some guidance by the Trial

11 Chamber. I intended to request if you accept the qualifications as an

12 expert, but I also recall that you have a specific policy on dealing with

13 matters like that. So if it is not now the appropriate time but further

14 later on in this trial, then I will postpone that request.

15 JUDGE AGIUS: Do you have anything to say from Mr. Jones.

16 MR. JONES: We didn't challenge the qualifications of the expert.

17 JUDGE AGIUS: I don't think so. It's not my recollection that you

18 did.

19 MR. WUBBEN: No, I didn't do so, but it is --

20 JUDGE AGIUS: No, no. It's -- the Defence did not challenge the

21 qualifications of your expert.

22 MR. WUBBEN: So there is a moment when I showed to you through

23 this witness his background, his training, allocation, his work, how long

24 he worked, that whenever the Defence do not challenge the expert witness's

25 qualifications, I would like to request this Trial Chamber to accept his

Page 435

1 qualifications as an expert.

2 JUDGE AGIUS: The way we go about it is you still have the onus of

3 proving that he is an expert. Now, how you prove it is your business. If

4 you can prove it by his own testimony, if you can prove it by a proper CV

5 confirmed by him in evidence, or during his evidence. It's up to you.

6 And then it's up to us to decide whether that evidence is enough to

7 qualify him as an expert.

8 MR. WUBBEN: Okay.

9 JUDGE AGIUS: But we obviously will take it into consideration the

10 fact that his qualifications are not being contested by the Defence. The

11 fact that you in your good judgement chose him as your expert, the renown

12 of the Netherlands Forensic Institute, which is no joke. I mean, it's --

13 we are not dealing with an institute that is embarking on forensic

14 expertise. We are dealing with a very experienced institute. We will

15 take everything into consideration. But I cannot tell you here and now,

16 yes, we are happy with the qualifications of your expert. I don't know.

17 MR. WUBBEN: Thank you, Your Honour, you have answered my

18 question. I was --

19 JUDGE AGIUS: This is the first time I have seen him in my life,

20 so ...

21 MR. WUBBEN: This is not the time to put the qualifications --

22 JUDGE AGIUS: I don't think so.

23 MR. WUBBEN: Thank you. I will proceed with my questions.

24 Q. Please, witness, will you give the Judges a short introductions of

25 the phases in comparative handwriting examinations in general as practiced

Page 436

1 by this forensic institute and adopted by you.

2 A. Okay. I'll try. The method I -- that is used by the -- in the

3 Netherlands Forensic Institute is explained in annex 1 to the report.

4 This method is accredited by the Dutch accreditation board with its

5 associated systems of quality assurance. Basically, it -- in a

6 comparative handwriting examination there are four stages, these include

7 handwriting analysis, analysis of the features of the handwriting,

8 comparison of the similarities and differences -- sorry, comparison of the

9 observed handwriting characteristics, then the assessment of the

10 similarities and differences found. And finally, drawing the conclusion.

11 Now, each of these stages can be broken down in more phases. I'm not sure

12 whether you want me to go into that amount of detail.

13 Q. As a kind of introduction, general introduction, it will be

14 helpful to assist the Trial Chamber.

15 A. Well, the method of the Netherlands Forensic Institute

16 distinguishes the main categories of handwriting characteristics, the

17 general or overall characteristics, which include things like -- I mean,

18 this is not only for signatures but handwriting in general, this includes

19 the style of writing, the size of the handwriting, the slope of the

20 writing, the degrees of -- the degree of connectivity, the pressure

21 variation, et cetera. Then we have the surface layout characteristics, the

22 width of the left and right margins, the distance between words and lines,

23 but these are more -- apply more to written text than to signatures. And

24 finally, most important, what we call the microcharacteristics. These are

25 the shape, the proportions of the -- the visual element, the segmental

Page 437

1 parts of the handwriting, in most cases the letters and numbers and other

2 characteristics.

3 These are all -- each of these characteristics in the writing is

4 evaluated and then compared, after which we -- based on these similarities

5 or differences that we found we draw a conclusion as to the probability

6 that a handwriting -- a questioned handwriting has been written by the

7 person who gave the sample -- the known writing, the reference samples.

8 And each handwriting examination is done by two examiners in our lab and

9 they draw their conclusion independently and then it is compared to each

10 other and it's -- according to our methods, both examiners must reach a

11 unanimous conclusion.

12 Is this enough for you?

13 Q. Yes. Will you please address the -- more about the issue of the

14 comparison and the weighing when it comes to the factors of similarities

15 and the outcome of it, including the dissimilarities.

16 A. Well, as I said, most important are the microcharacteristics, the

17 shape and proportions and individual elements within the handwriting or

18 the signature. These are compared to each other. We try to -- when we

19 compare them, we use the principle of visual equivalence. It's -- it

20 takes too much time to really measure all the -- quantify all the

21 characteristics that we -- that we evaluate. So we do it by -- actually

22 breaking down the handwriting into separate elements, compare each of the

23 elements. And if it fits into the variations within the reference

24 material, we judge it as a similarity. And the more it fits, the better

25 the similarity could -- the better the quality of the similarity. If it's

Page 438

1 a difference -- if they are not the same, then we say it is a

2 dissimilarity or a difference. So for each of all the -- each of the

3 elements we have partial evaluation of its similarity or difference and

4 then we look at the overall results and base our conclusion on whether the

5 handwriting has been written by the same person or not. And some of

6 the -- especially when it's written elements, some of the elements, some

7 of the shape forms, construction of letters may be more rare than others

8 so these have a larger weight in our evaluation.

9 Q. Can you clarify more about the finalisation, meaning drawing the

10 conclusions and the probability scale.

11 A. Yeah. The results of a comparative handwriting examination can be

12 presented in the form of a conclusion indicating to what extent the

13 examiner considers it likely that the questioned writing was produced by

14 the writer of the known samples, and this can be done on a scale which is

15 a continuum between the writing was definitely written by this person and

16 the writing was definitely not written by this person. But at the

17 Netherlands Forensic Institute, we don't give categorical opinions, no

18 certainty opinions, instead we use the wording -- the questioned writing

19 was or was produced by the writer of the note samples with probability

20 reaching on certainty. This is our strongest opinion. So at the positive

21 side as well as at the negative side.

22 The number of intermediary steps is rather arbitrary. The

23 Netherlands Forensic Institute now uses highly probable -- probably --

24 probably not -- highly probable not as steps with inconsistent or, as we

25 say, no opinion in between, in between the positive and negative

Page 439

1 conclusions. In some cases where we have problem applying one of these

2 wordings, you may use the wordings possibly written by, or we might even

3 say that the results of the examination do not support the proposition

4 that the questioned signature was written by the person in question.

5 Q. When can one say that, for example -- you might give an example

6 there is a kind of 100 per cent certainty?

7 A. When there is enough writing and it's written fluently and we find

8 very good similarities between the questioned writing and the reference

9 samples, then we might say that the writing is written by this person with

10 probability reaching on certainty. So this will be -- might be with about

11 two or three lines of written text or a signature which is complicated

12 enough to be difficult to copy.

13 Q. And highly probably?

14 A. Highly probably, highly probably in that -- well, it's less than

15 probable -- that may be because there are -- if in case of signatures

16 because a signature is not that complex that a very good forger might be

17 able to copy the signature in such a way that it's hard to distinguish

18 from a real signature, but it's still very unprobable, highly unprobably

19 that it can be done.

20 Q. And when it comes to probably, the difference.

21 A. In probably the information can even be less, it will even be more

22 easy to copy a signature without being able -- we being able to

23 distinguish it from a real signature.

24 Q. Can you further clarify the -- when it comes to signatures whether

25 it's -- sorry.

Page 440

1 JUDGE AGIUS: Could you ask the witness if maybe the institute

2 itself has got some kind of a video presentation of the process that maybe

3 they use in conferences or maybe they use in their business enterprises, I

4 don't know, which he could make available, if it exists.

5 MR. WUBBEN: Of course, Your Honour.

6 JUDGE AGIUS: Thank you.

7 MR. WUBBEN: We will accommodate you and we take up contact with

8 this witness but he might even confirm now.

9 Q. Can you confirm that there is kind of information material on

10 behalf of the police institute or judiciary that confirms the work and the

11 method that you explained?

12 A. You mean that for handwriting examination specifically? We had a

13 very old video which we have been using for police officers. I think it

14 needs an update now, but we have one, yes.

15 Q. And it is -- describes the method as clarified by you, confirmed

16 by you?

17 A. Among other things, yes.

18 Q. Will you please make that available --

19 A. I will try to find it.

20 JUDGE AGIUS: Thank you.


22 Q. I would like to proceed with the signatures. There are, I guess,

23 various signatures possible. Do you make a distinction also in genuine

24 signatures or imitations or pictures or forgery. What can you tell us

25 about that?

Page 441

1 A. The signatures, there are various possibilities. A signature may

2 be written by the owner and can be in his normal signature. And a

3 signature can also be made by -- in the owner's name by someone else, so

4 in that case it may be a forgery. But even we discern so-called bona

5 fide - I don't know the English pronunciation - bona fide and mala fide

6 signatures. A bona fide signature is, for example, a genuine signature

7 written by the owner which does note deviate from its overall design.

8 There are no signs of copying. It might be also -- the owner might have

9 another signature, used another signature which deviates from the overall

10 design which doesn't show any copying. So this is not a signature which

11 has been written for -- to fool someone but it's just another signature

12 someone uses. And the mala fide signatures, we have four types. This

13 might be a clear -- a normal imitation of someone's signature which does

14 not deviate in overall design but normally it shows signs of copying. It

15 might be a pseudo-imitation signature. The owner of the signature might

16 try to produce a signature which looks like an imitation, so he might even

17 trace his own signature.

18 Then there's a fictitious signature if someone wants to make a

19 signature for a person but he doesn't know how this signature looks like,

20 he can just make a fantasy signature in the name of this person. And then

21 there may also be a pseudo-fictitious signature, for example, if I

22 don't -- I want to -- I have to make -- put down a signature somewhere and

23 later I want to say, well, that's not my signature. I might -- might just

24 produce some kind of -- of doodle or some signature which doesn't look

25 like my normal signature at all. These are the several kinds of

Page 442

1 possibilities we distinguish.

2 Q. Thank you. The validation or conclusion. Is there any

3 validation? Can you tell us about this issue.

4 A. In the first place, as I told before, the method is accredited by

5 the Dutch accreditation board, a board with an associated system of

6 quality assurance. Secondly, as I also said, each comparative handwriting

7 examination according to our method must be checked by a second examiner

8 and both examiners must reach a unanimous conclusion. And finally the

9 handwriting examiners of the Netherlands Forensics Institute are

10 participating in European, American, and Australian proficiency tests,

11 so-called collaborative exercises or skill validation trials.

12 MR. WUBBEN: Now, I would like to turn, Your Honour, to the

13 reports, both reports, first and additional reports. And I request to

14 tender those two reports. The first, Prosecution number 263 and the E,

15 the English version. And the additional report --

16 THE REGISTRAR: May I interrupt.

17 JUDGE AGIUS: 263 we have already.


19 MR. WUBBEN: I learned that it will be 264, P264.

20 JUDGE AGIUS: The English -- The ERN number is 03523852,

21 Mr. Wubben, is it?

22 MR. WUBBEN: Yes, that's correct.

23 JUDGE AGIUS: Up to?

24 MR. WUBBEN: Up to 3891.

25 [Trial Chamber and registrar confer]

Page 443

1 JUDGE AGIUS: So it's from P264 will be from page 03523852 to

2 0359 -- 03523891. Correct?

3 MR. WUBBEN: Yes, Your Honour.

4 JUDGE AGIUS: And the other one?

5 MR. WUBBEN: The other one is the additional report, 19th of July,

6 P270. And of course the English version the E. ERN 0359-4719.

7 JUDGE AGIUS: Yes. And that is -- this will be P -- because he

8 said 270.

9 THE REGISTRAR: It will be P265 -- it will be 265.

10 JUDGE AGIUS: Why did Mr. Wubben say 270?

11 MR. WUBBEN: We accept. This is not in my information but we

12 accept and we will confirm in our subsequent --

13 JUDGE AGIUS: And this goes right through and includes page

14 03594756. Correct?

15 MR. WUBBEN: Yes, Your Honour.

16 JUDGE AGIUS: Okay. Yes, please proceed.

17 MR. WUBBEN: Yes. Thank you, Your Honour. Please allow us to

18 hand over the two reports of the Dutch Forensic Institute to the witness.

19 JUDGE AGIUS: I take it that these have been made available to

20 you, Mr. Jones?

21 MR. JONES: The reports, yes.

22 JUDGE AGIUS: Thank you.

23 MR. JONES: The reports, yes.

24 [Trial Chamber confers]

25 MR. WUBBEN: Your Honour, I give the witness time to go through

Page 444

1 it.


3 THE WITNESS: I'm ready.


5 Q. Mr. Fagel, you have now been handed over two reports of the Dutch

6 Forensic Institute. I will go through these reports with you one by one,

7 and I will start with the first report of the 25th of February, 2004, and

8 that's P264.

9 THE INTERPRETER: The interpreters note that they do not have

10 copies of these reports.

11 JUDGE AGIUS: Yes, can we remedy this in any way?

12 MR. WUBBEN: Yes, of course.

13 JUDGE AGIUS: Usher, would you be kind enough. Thank you. These

14 are for the interpreters.

15 Yes, Mr. Wubben, I think you can proceed.

16 MR. WUBBEN: Thank you, Your Honour.

17 Q. Doctorandus Fagel, do you recognise this first report, meaning the

18 report from the 25th of February, 2004, P264?

19 A. Yes, I do.

20 Q. Who signed for this report?

21 A. It's a combined report. Part is written by me and signed by me

22 and the last part is written by my colleague, Jan de Koeijer, a document

23 examiner.

24 Q. Who is --

25 A. Sorry.

Page 445

1 Q. Who is Doctorandus de Koeijer?

2 A. He is my colleague working at the same institute with me in the

3 documents department.

4 Q. Why is this report made up by two examiners, you and

5 Doctorandus de Koeijer?

6 A. It's the usual procedure in our institute that when we make

7 examinations on the same documents or the same exhibits, that we put them

8 together in one report.

9 Q. When did you receive the request for handwriting and document

10 examination?

11 A. It was on January the 14th, 2004.

12 Q. I notice at page 1 of your report that January the 14th is the

13 date of application.

14 A. Yes.

15 Q. The question was: When did you receive the request as such?

16 That's the date?

17 A. Yes, by fax.

18 Q. And who gave you this request?

19 A. I think it was from the from -- I think it was from the evidence

20 unit of -- by -- or Mr. Nasir. I don't -- have to check the request

21 itself, but ...

22 Q. How did you receive the request for examination?

23 A. By fax.

24 Q. Who brought the documents to you?

25 A. Mr. Nasir.

Page 446

1 Q. When was that?

2 A. That was on January the 19th, 2004.

3 Q. How were the documents received by you from this person?

4 A. The -- they were handed over to me one by one and I have to sign a

5 registration form for each of these documents.

6 Q. Did you start working then on the examination of these documents?

7 A. Not the same day but I think the next day or a few days later.

8 Q. And you prepared a report?

9 A. Yes.

10 Q. When did you sign it?

11 A. The report was signed on February the 25th of 2004.

12 Q. When did you send this report?

13 A. The same day, so that's February the 25th.

14 Q. And to whom?

15 A. The report was sent to the International Criminal Tribunal to the

16 attention of to Mr. Ron Turnbull of the head -- the head of the evidence

17 unit.

18 Q. And when did you return the documents to the OTP?

19 A. That was February the 16th, 2004.

20 Q. Is this report shown to you the same report that you sent?

21 A. It is.

22 MR. WUBBEN: Your Honours, I request for allowance to show

23 Doctorandus Fagel the documents which form part of preparing this first

24 report.

25 JUDGE AGIUS: Any objection, Madam Vidovic?

Page 447

1 MR. JONES: Well, Your Honour, there are some difficulties. I'm

2 not sure if Your Honours have the original documents yourselves --

3 questioned documents. They are actually Prosecution exhibits, but it

4 would surely be helpful for all of us to have the original documents. In

5 his report there are only extracts.

6 JUDGE AGIUS: I don't -- I can't tell you whether we have them all

7 or not because, as I said, the list of documents to be used this morning

8 by Mr. Fagel was tendered at the eleventh hour. The other point is that I

9 very much doubt that this morning we will -- the Prosecution will have the

10 originals. They will have copies of the originals I suppose. Perhaps

11 that is another question that you ought to ask the witness, whether he

12 received photocopies of originals for the purpose of examination or

13 whether he received from Mr. Nasir or whoever it was the originals

14 themselves.

15 MR. WUBBEN: Your Honour, we have the originals available and the

16 witness can answer the question that you posed to me.

17 Q. Please confirm to the Judges --

18 A. For each of the documents indicated in the report whether we

19 received a photocopy or the original documents.

20 MR. WUBBEN: So, Your Honour, may I proceed?

21 JUDGE AGIUS: Yes, go ahead.


23 Q. Doctorandus Fagel, first I would like to show you the reference

24 documents with regard to the handwriting examination you did and for the

25 information of this Trial Chamber. Your Honours, these are the documents

Page 448

1 referred to in the evidence declarations and attachments by Barney Kelly

2 and Steve Tedder. These declarations and attestments have been accepted

3 by Defence. The declarations, the ERN numbers of the reference documents

4 for the forensic examinations to be discussed, verified by witness, have

5 been referred to. They have been tendered into evidence by me this

6 morning. I request the usher to hand over the documents K1 up to K8.

7 That's exhibit number P100. Yes.

8 A. You want me to go through all these documents?

9 Q. I request you to look at these documents one by one and refer to

10 the ERN numbers given to these documents.

11 A. Yes. This is the -- here I've got a document with known signature

12 K1. It's ERN number 0206 -- sorry.

13 JUDGE AGIUS: One moment. Can we have it on the ELMO so that we

14 can follow better, please. Yes, it is.

15 THE WITNESS: So this is the document containing the signature K1

16 in the top. It's the -- the original signature on the document I've got

17 here. Then the signature with the -- the document with the signature K2,

18 that's ERN number --


20 Q. Excuse me, Doctorandus Fagel, can you also confirm that you

21 recognise this first document of the set shown to you as the document K1

22 that you used and referred to in your examination report.

23 A. I do.

24 Q. Okay. Please proceed.

25 A. Next is document 02066401. And it contains in the top the known

Page 449












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 450

1 signature K -- I marked K2. And I confirmed that this is the document

2 that I have used in my examination.

3 Q. I didn't get the transcript but you confirmed the ERN number? And

4 the next one, K3, please, including ERN number and the recognition.

5 A. Yes. The next document has ERN number 02066402 and it contains in

6 the top known signature K3 and I recognise it as the -- one of the

7 signatures I have been using as known signatures.

8 Q. And subsequent, K4.

9 A. Document 4 has ERN number 02066403 and in top it has a signature

10 which is -- has been used by me as signature K4.

11 Q. And you recognise it?

12 A. I do recognise it.

13 Q. K5?

14 A. The next document has ERN number 02066404. And it has a signature

15 in the top that I recognise as the signature being used by me as K5.

16 JUDGE AGIUS: One moment because this is all becoming very

17 confusing. Let's start with the first one again because I have what I

18 consider to be a justified remark from the registrar. We need to be able

19 to follow properly in relation to the exhibit numbers that we have -- that

20 have been communicated to us. So let's start with the first one, what you

21 referred to as K1, because we don't have any documents numbered K1. So we

22 need to have a cross-reference to the exhibit number if it's already been

23 tendered as an exhibit.

24 MR. WUBBEN: P100, Your Honour.

25 JUDGE AGIUS: But P100, I have another one. Yeah, let me see,

Page 451

1 because what I have as P100 here. What I have as P100 does not include

2 that document, Mr. Wubben.

3 MR. WUBBEN: As P100, Your Honour, I have the ERN numbers

4 0206-6400 up to 0206-6407. And I note, Your Honour, that there are -- on

5 the documents there are two ERN numbers --

6 [Trial Chamber and registrar confer]

7 JUDGE AGIUS: One moment. Mr. Wubben, if you look at the

8 photocopy of this original, at the top left-hand corner you have the

9 following: 23/05/2001 at 11.15 hours and a signature, I don't know whose

10 signature. Do you know what that is?

11 MR. WUBBEN: That's the signature referred to by Stephen Tedder as

12 the signature placed by Naser Oric placed in his presence, and because

13 there is a signature added to a document, that document will receive a new

14 ERN number.

15 JUDGE AGIUS: So in other words the writing in blue on the top

16 left corner you're saying is the signature of Naser Oric?

17 MR. WUBBEN: I'm not the expert to tell so --

18 JUDGE AGIUS: But you are alleging that it is?

19 MR. WUBBEN: Yes, I'll allege that it is and it is referred by the

20 documents provided by Steve Tedder in his declarations and annexes and

21 that's why I stated in the beginning why I tender the declarations and

22 annexes prior to this statement.

23 JUDGE AGIUS: All right. And I see that in the following

24 documents, following originals, ERN number 6401, 6402, 6403, 6404, 6405,

25 6406, 6407, there is a repetition more or less of the date and signature

Page 452

1 of what, according to you, is the accused?

2 MR. WUBBEN: According to me it is the accused and it is clarified

3 and confirmed in the attachments and declaration by Steve Tedder.

4 JUDGE AGIUS: All right. Okay.

5 JUDGE ESER: I presume I still have a question. On the first

6 document ending with 400, within the text you have a signature which seems

7 to be the signature of Naser Oric. And does the signature -- and this

8 document of course is older I guess than the date of 23 of May 2001. Now,

9 what was the purpose of having Oric's signature at the head of this sheet?

10 Was it for comparison, both the signature within the document and the

11 signature given on the 23rd of May, given by Naser Oric?

12 MR. WUBBEN: No, it was during interview of Naser Oric by Steve

13 Tedder and others, as referred to in his declaration. Naser Oric was also

14 confronted -- had been confronted by several documents in order to take

15 part, participate, in that interview, to confront him and ask his comments

16 about these kind of documents, and this referred to authenticate the fact

17 that that document has been shown to him.

18 JUDGE ESER: Thank you.

19 JUDGE AGIUS: Yes. You may proceed, but we want to make sure,

20 Mr. Wubben, that we have got the correct cross-reference in our files. So

21 obviously you are handing the accused the originals --

22 MR. WUBBEN: Yes --

23 JUDGE AGIUS: -- which we have never seen before and we have got

24 photocopies plus a reference number. I understand there may be some

25 confusion. So let's go through them one by one before he proceeds with

Page 453

1 the substance of his testimony. The second one I understand is -- or

2 should be P72. Is that correct? The first one was P100.

3 MR. WUBBEN: But P100, Your Honour, that consists of a group of

4 documents. So all these eight documents are included in --


6 MR. WUBBEN: And I really appreciate that Your Honour takes the

7 time to check and to clarify and to confirm, because as this is a

8 document-driven case it is important.

9 JUDGE AGIUS: Yes, absolutely. So let's go through all the

10 documents -- all the pages that we have under P100.

11 MR. WUBBEN: Yes.

12 JUDGE AGIUS: So that we make sure that we have exactly the same

13 documents.

14 MR. WUBBEN: Fine, Your Honour.

15 JUDGE AGIUS: The first page is what we saw before and it has ERN

16 02066400. Is that correct?


18 Q. Witness, please.

19 A. Yes, correct.

20 JUDGE AGIUS: The second page of that document of P100 is ERN

21 number 02066401.

22 THE WITNESS: Yes, I do recognise it.

23 JUDGE AGIUS: Can Madam Registrar -- usher, could you put it on

24 the ELMO so that we verify that indeed it is the same one that we have.

25 Yes, it seems to be.

Page 454

1 The next document is 02066402.

2 THE WITNESS: Yes, I do recognise this document.

3 JUDGE AGIUS: Yes, and I recognise it as well.


5 Q. What document, witness?

6 A. K3.

7 JUDGE AGIUS: This is K3. Okay. This would be K3.

8 And the next -- this document has two pages. Correct? Yes. The

9 next page is 0206640 -- I would imagine it's 4 but the last number is

10 missing from the page that we have. It -- you should move to the next

11 page, Madam Usher, please. Yes, on the -- yes, this is 4, yes. Seems to

12 be. I think it corresponds to 02066404. All right.


14 Q. Witness, can you please confirm.

15 A. Yes, I recognise the signature as K5.

16 JUDGE AGIUS: And then we move to the next document which has ERN

17 number 02066405.

18 THE WITNESS: Yes, I recognise this signature as K6.

19 JUDGE AGIUS: All right. Then we have document with ERN number

20 02066406.

21 THE WITNESS: Yes, it contains the signature used by me as K7.

22 JUDGE AGIUS: And this document consists of -- does it continue on

23 the next page or is the next page a separate document? It seems to --

24 this document --

25 THE WITNESS: This is a separate document. It contains signature

Page 455

1 K7 -- sorry, K8.

2 JUDGE AGIUS: All right. So we next have 02066407, which will be

3 K8.

4 MR. WUBBEN: And that completes the group, Your Honour, the group

5 of P100.

6 JUDGE AGIUS: And can you explain to me what this is, because I

7 also have as P100, 03006196, is decisions of the territorial --

8 MR. WUBBEN: If it has an E added to it, that's the English

9 translation, Your Honour.

10 JUDGE AGIUS: Yes -- oh, I see, that's the English translation.

11 Okay. I think we have enough to put us in a position where we can proceed

12 with the examination of the witness now.

13 MR. WUBBEN: Your Honour, it's almost break time. Do you want to

14 decide upon that now or ...

15 JUDGE AGIUS: Decide on what? I think we still have another seven

16 minutes to go. Let's proceed and then we'll have the break.

17 MR. WUBBEN: Then I ask the usher to tender documents ERN number

18 02066408, that's a reference number K9, K10. And I have to ask for a P

19 number, if it is available.

20 [Trial Chamber and registrar confer]

21 JUDGE AGIUS: Did you tender them yesterday, or last Friday,

22 Mr. Wubben?

23 MR. WUBBEN: Yes -- no, we didn't tender that one, and that's the

24 reason why I asked for a P number, Your Honour.

25 JUDGE AGIUS: I expect that he will be giving you the copies of

Page 456

1 those originals. He's certainly -- is not going to tender the originals

2 themselves.

3 Do you have the copies available?

4 MR. WUBBEN: Okay. Your Honour, I have not the copies --

5 JUDGE AGIUS: I think let's take the break now, Mr. Wubben.

6 Please make sure that you have the copies of all the documents you intend

7 to refer to during today's session -- sitting, especially if you have them

8 available only in the original. We will need the copies and you need to

9 tender them in evidence giving them a proper number, otherwise we will not

10 be even able to follow. For example the ERN number that you mentioned

11 now, at least I can't see it on the list that you made available to us. I

12 can't find it.

13 MR. WUBBEN: Those are the P numbers assigned to -- by last

14 Friday, Your Honour.

15 JUDGE AGIUS: Oh, I see. So this is something new?

16 MR. WUBBEN: Yes.

17 JUDGE AGIUS: All right. I think we do need a full 30 minutes to

18 re-organise ourselves. Try to organise yourselves properly with copies,

19 and in the meantime make sure that the Defence are put on notice which

20 documents -- which other documents are going to be referred to which you

21 were not aware of and the registrar is handed these documents beforehand

22 so he can give them, in agreement with you, an exhibit number. Because we

23 can't work with three different reference numbers. The gentleman,

24 Doctorandus Fagel, obviously had used a specific reference number. We are

25 using another number and we need to get organised better. So we'll have a

Page 457

1 30-minute break starting from now. Thank you.

2 --- Recess taken at 10.27 a.m.

3 --- On resuming at 11.08 a.m.

4 [Trial Chamber confers]

5 JUDGE AGIUS: Before we continue, I notice that we have a new list

6 now.

7 MR. WUBBEN: Yes.

8 JUDGE AGIUS: Regarding Professor Gow, have you had -- did you

9 have time to think it over?

10 MR. WUBBEN: Yes, Your Honour. Thank you. Before I go into that

11 matter, please allow me also to hand over to the usher the e-mails -- the

12 prints of the e-mails sent to Chambers, registry, including Defence

13 counsel. And you will notice that the e-mail reflects on the 8th of

14 October, 2004, around half-past 5.00 that we sent the list of all the

15 exhibits the Prosecution is intending to use on Monday, including the case

16 manager, by -- from the Defence. So whenever they state that it is

17 something later on, that is not based on the print of this e-mail.


19 I suppose Mr. Roberts has had time to check his e-mail.

20 MR. JONES: We have had time to check on the break. Geoff Roberts

21 did check. He received something which he was unable to open the

22 attachment which perhaps might explain the technical difficulty. We note

23 it is 5.30 p.m. on Friday this apparently was sent. We have the

24 attachment, we have some technical difficulties opening the attachment.

25 MR. WUBBEN: Well, Your Honour, I don't take this as a kind of

Page 458

1 argumentation to confirm to this Trial Chamber that they didn't accept --

2 that they didn't receive this e-mail. If it is really true that they

3 couldn't open this attachment, it was clear that the text of the

4 attachment was as such that this is important to note as what is in the

5 attachment. And if you don't receive such -- then there is always a

6 possibility from lead counsel -- for lead counsel to make a contact. And

7 I was there and there was no notice of that at all.

8 MR. JONES: Your Honour --

9 MR. WUBBEN: Knowing that you couldn't open it, it's easy for us

10 to assist; they are close by. But what gives me a possibility now to put

11 forward to you is the fact that it was stated earlier this morning that

12 they didn't receive it. And afterwards they have to check and after that

13 they have to confirm that they couldn't open the attachment.

14 MR. JONES: Your Honour, Mr. Wubben is casting aspersions which he

15 can't back up. I said in the morning we would check. We've checked.

16 It's completely unnecessary for him to make these sorts of comments and I

17 simply make that comment.

18 JUDGE AGIUS: Anyway, we have taken note of your submissions in

19 regard to Professor Gow.

20 MR. WUBBEN: Thank you, Your Honour. Relating to Professor Gow I

21 would like to state on the forehand that there had been a change in the

22 past, which is confirmed through several stages of these proceedings,

23 starting the earlier indictment, confirmation of the amended indictment

24 2003 and I quote under paragraph 20: "At all times relevant to this

25 indictment a state of international armed conflict and partial occupation

Page 459

1 exists -- existed on the territory of Bosnia and Herzegovina, only last

2 week confirmed and allowed by your Trial Chamber this has changed and

3 significantly and only focussed on an armed conflict. And I quote: "At

4 all times, new paragraph 20, relevant to this indictment a state of armed

5 conflict existed on the territory of Bosnia and Herzegovina."

6 Well, Your Honour, it is a principle that the Prosecution calls

7 and decides upon the witnesses. When it comes to an important and

8 dramatic change like that, and we first intend to call Gow for five and a

9 half hours to establish that first prior paragraph of the indictment with

10 the important elements of then-international character or armed conflict,

11 apart from the armed conflict itself as a nucleus. So it is the

12 Prosecution's opinion that the principle is and remains that we will call

13 and decide upon our witnesses to establish such a paragraph within our

14 indictment. That can be done through an expert, through witnesses.

15 Already you will have noticed that the expert report was around -- it was

16 limited in size around 10 -- 11, 12 pages as I recall. And after having

17 deciding on the indictment by this Trial Chamber, we have to also

18 reconsider for ourselves in an expeditious trial to be in such a way that

19 we are able to prove our case with the witnesses provided. Thus, we

20 didn't take a decision just like that. It was a shared decision by senior

21 management and we took that decision. I know that I don't have to clarify

22 or confirm this because tactics are the matter of the party that brings

23 the witnesses forward. But I noticed also -- and that point was

24 well-taken, that this Trial Chamber needs this witness or might need this

25 witness for their own purposes. And I know about the powers of this Trial

Page 460

1 Chamber, proprio motu. But with a view to your open information, to your

2 words, the Prosecution team, we are ready to reconsider our opinion in

3 that regard and to accommodate this Trial Chamber to facilitate this Trial

4 Chamber upon this information shared with us this morning.

5 We contacted Victims and Witnesses Unit. We learned from -- over

6 the weekend that --

7 JUDGE AGIUS: From who? Over the weekend. I just moved the

8 headphones for a second and I missed those words and thought you mentioned

9 the name of someone.

10 MR. WUBBEN: We learned that he was ill. He might be recovered

11 yet. And we already put in the mechanism through Victims and Witnesses

12 Unit through our trial support unit to contact him as soon as possible.

13 And we already sent an e-mail. Please accept this clarification of

14 tactics out of respect for your Trial Chamber to show that whatever has

15 been argued by the Defence counsel is really not true and can be clarified

16 and justified by the argumentations I put forward. And I know and I hope

17 that this Trial Chamber still confirms the opinion that it is up to the

18 party to call and decide upon their witnesses.

19 JUDGE AGIUS: I thank you, Mr. Wubben. I don't need you,

20 Mr. Jones, to -- or Madam Vidovic to proceed with this matter any further.

21 I think on behalf of Judge Brydensholt and Judge Eser and of course on my

22 own behalf I wish to thank you and the other members of your team and

23 anybody else from the Office of the Prosecution you may have consulted for

24 your cooperation. Of course - and I make it very clear here - that we

25 recognise the right of each party to decide which witnesses to bring

Page 461

1 forward and which witnesses not to bring forward. But I can imagine what

2 it would be like if Madam Vidovic hands us the list of the witnesses they

3 intend to bring forward later on in their case and then, as happened in

4 many other cases, they decide not to bring forward some of their

5 witnesses, including expert witnesses, I can imagine what the reaction

6 would be if you stood up and said, no, but we insist that that witness be

7 brought over by the Trial Chamber itself or you tried to bring that

8 witness because the Defence is not bringing it. So let's make it very

9 clear on our part. On our part we do of course recognise the principle in

10 the adversarial system that -- which is the system that this Tribunal

11 preeminently has adopted on which every party is able to decide which

12 witnesses to bring forward and which witnesses not to bring forward with

13 the caveat of course of matters, for example, related to relevance and

14 other things.

15 But now that the incident is practically over. The other, I wish

16 you to understand why we put our foot in this and tried to put some

17 pressure -- bring some pressure to bear. In reality you heard Mr. Jones

18 or Madam Vidovic last week say in response to a remark that I myself made

19 relating to the expert report of Mr. Gow, I had not read the expert report

20 of Mr. Gow. I mean, I do not take it a habit of reading the entire case

21 before it starts, the fact -- what I can avoid reading I avoid reading

22 actually. But I was informed by members of my staff that had read the

23 report after it was presented on the 6th of September to the previous

24 Trial Chamber that much of it related to the internationality character of

25 the armed conflict. And I did highlight that to you in all fairness to

Page 462

1 you to consider the time we require when handling this -- the testimony of

2 this document -- of this expert. Certainly it was not my intention to

3 give you a hint, now we don't need him, drop him. Definitely it was not

4 my intention, especially after Mr. Jones stood up and said: Yes, Your

5 Honour, it's true that -- but precisely we contend that for some of the

6 charges, counts, that we have, even with the amendments, you still require

7 the element of internationality of the conflict. Whether he is right or

8 not, that doesn't matter. We are not going to deal with that. But his

9 suggestion was that he would certainly need adequate time to cross-examine

10 this witness on precisely the matter of cross-examination. Obviously we

11 have submissions on whether the internationality of the conflict is

12 relevant or not, but these are pleasures yet to come, and I do not intend

13 to address them now, for sure.

14 Which would have meant that had you stuck to your decision to drop

15 this witness, expert witness, you would have put either us in a situation

16 where we ourselves would have had to call an expert witness to deal with

17 these aspects. This would have involved this Tribunal in unnecessary

18 extra expenses which need not be covered now. This is why we are indeed

19 grateful for the practical and pragmatic approach that you are taking.

20 And depending on the issue, if there is no expert witness on your part and

21 until and unless we produce an expert witness ourselves, then the ball

22 will be in the Defence's court to see whether they need to bring forward a

23 witness themselves. But from past experience, I can tell you that that

24 takes time, it takes time even to locate a witness, an expert witness, and

25 to get him agreed to the terms that usually this Tribunal offers.

Page 463

1 So you have done the Trial Chamber a great favour today and we do

2 indeed want to show our appreciation for it. But for the future, if there

3 is any witness that either you or later on the Defence you intend to drop,

4 please give adequate prior notice to the other party and to the Trial

5 Chamber, because sometimes I get my staff working on this and on that in

6 anticipation of next week's sitting. And I'm sure that the Defence will

7 not be sleeping in between one week and another in anticipation of the

8 witnesses that you intend to produce. So try to make it the pattern and

9 the rule for the future in the course of this trial that any changes,

10 either in the names of witnesses you intend to bring forward or the order

11 in which you intend to bring them forward or dropping of any witnesses you

12 give prior notice of -- to the other party.

13 It's not a question of tactics only; part of it is tactics and I

14 acknowledge that you can resort to tactics. When I was Defence counsel

15 myself I used to resort to tactics. But there is a limit, there is a

16 limit, because over here it is a different kind of trial than what you get

17 in the domestic jurisdiction. Here you have a lot of personnel working,

18 photocopying, working, preparing notes for us, summaries. Defence is

19 obviously reading in preparation of the witnesses to come, preparing

20 cross-examination. So let's try to avoid all this confusion because these

21 are matters that hurt and when they hurt they provoke a reaction. So once

22 more, thank you, Mr. Wubben. And you will let us know what the situation

23 is as we go along.

24 In the meantime what is important if he doesn't come -- doesn't

25 show up on Thursday -- Wednesday, then you get Manas.

Page 464

1 MR. WUBBEN: Yes, Your Honour, we --

2 JUDGE AGIUS: Manas and any other witness that you may agree with

3 the Defence, which does not require them to literally throw their plans in

4 complete disarray. So we are the easiest, the three of us up here,

5 because we don't need to prepare for cross-examinations. But the Defence

6 has to prepare for cross-examination. All right -- yes, Mr. Jones.

7 MR. JONES: Your Honour, we weren't aware that Ms. Manas would be

8 coming back on Wednesday.

9 JUDGE AGIUS: Because I made it clear that one other objection

10 that I have is not knowing what to do if Mr. Gow doesn't -- Professor Gow

11 doesn't come forward. And let's say we decide that your urgent motion

12 saying that, no, Professor Gow is not coming forward, we have got nothing

13 to do with this, we proceed. We have two options, either do nothing

14 Wednesday, Thursday, and Friday, because it would create a lot of

15 difficulties for you, or else see if we could occupy -- make good use of

16 the time available. And apparently the Prosecution with my staff proposed

17 to bring forward Ms. Manas to continue with some of the documentation that

18 she did not have time, et cetera. That would not create a problem because

19 it's not a question of -- of et cetera. But if -- short of that, if we

20 don't have any other witness that we can profitably bring forward without

21 causing you undue problems, we will not be sitting.

22 MR. JONES: I'm obliged, Your Honour. It was just Ms. Manas -- if

23 she were to give more evidence, we would like to receive any statement or

24 material she will be giving as soon as possible.

25 JUDGE AGIUS: Yes, certainly. I -- yes, Mr. Jones, I honestly

Page 465

1 don't even know what is the substance of her further testimony. I don't

2 know. It was just put to me that perhaps if Wednesday we could avoid

3 losing or wasting, then we'll get -- I forgot her name, Ms. Manas anyway.

4 MR. DI FAZIO: It wouldn't be anything to take the Defence by

5 surprise. The bulk of her evidence has gone in already. The methods

6 relating to the iffing and miffing of forms and the requests for

7 assistance. Thereafter you will recall it was just a question of going

8 through the various entries in her spreadsheet. All that I would intend

9 to do upon calling her next would be to fill in the gaps in her

10 spreadsheet and produce more evidence. But the main principle

11 explanations have has gone in into evidence.

12 JUDGE AGIUS: Okay. I thank you. I consider your motion --

13 urgent motion filed on Saturday -- on Friday as moved now, Mr. Jones.

14 MR. JONES: I'm not sure it's entirely moot. It remains on the

15 table. It depends on what --

16 JUDGE AGIUS: Professor Gow comes over.

17 MR. JONES: If he -- of course, if Professor Gow --

18 JUDGE AGIUS: We'll leave it there until he comes over.

19 JUDGE BRYDENSHOLT: I understand it in the way that now it is the

20 health situation of Dr. Gow that could prevent him from coming here on

21 Wednesday or else I take it that he is the witness we are going to hear.

22 MR. WUBBEN: Yes, Your Honour. I can confirm that we will do our

23 utmost to get him over here. It's only that I could accommodate you with

24 the latest information but we tried to check during the break and couldn't

25 get any confirmation either of recovering or --

Page 466

1 JUDGE AGIUS: Take your time, Mr. Wubben. I do not -- we do not

2 expect miracles from anyone. The important thing is that we have cleared

3 the waters and solved the problem. And again, we are thankful.

4 Yes, Doctorandus Fagel, my apologies twice over. First, for

5 having started with you somewhat late this morning. I carried on with

6 this discussion to show you that you came into the courtroom this morning

7 not capriciously but because we had a problem that we had to deal with and

8 we postponed until after the break so that we did not keep you waiting

9 unduly in the room there. So it was a matter of courtesy that we owed

10 you. And again my apologies again to you for having had you sit down and

11 assist to all this which is of absolutely no interest to you. But maybe

12 you will change your profession and decide to become a lawyer or a Judge.

13 Thank you, Mr. Fagel.

14 He is back in your hands, Mr. Wubben.

15 MR. WUBBEN: Thank you, Your Honour.

16 THE INTERPRETER: Microphone, please.


18 Q. I would like to start up again with the reference documents as I

19 put forward my questions related to that documents to Doctorandus Fagel.

20 And it was my impression that you would like to start from the beginning

21 of those -- that exhibit number P100 or is this Trial Chamber -- has this

22 Trial Chamber planned to pick it up from the K9 up to K10 where the

23 problems started with copies available?

24 JUDGE AGIUS: We finished with K8.

25 MR. WUBBEN: Yes, K8, K1 to 8. We provided this Trial Chamber and

Page 467

1 parties with copies of the exhibits we identified that those are without

2 the P number. And -- well, Your Honour, I can't of course guarantee that

3 everything up to 100 per cent is done, but we really tried to do our

4 utmost during the break to cover that all and I would like to start with

5 the document K9, K10.

6 JUDGE AGIUS: What's the ERN number of this?

7 MR. WUBBEN: ERN number is 02066408.


9 MR. WUBBEN: And I ask the usher to hand over this document -- she

10 has already done so. Thank you.

11 [Trial Chamber confers]

12 JUDGE AGIUS: And I take it then that 6409 would be K10. Is that

13 correct, Mr. Wubben?

14 MR. WUBBEN: 9 and 10 are -- is K11 and 12, Your Honour --

15 JUDGE AGIUS: No, no. ERN 6408 is K9. 02066408 is K9.

16 THE WITNESS: Am I allowed to say something?

17 JUDGE AGIUS: Yes, please. If you can help us --

18 THE WITNESS: The K number stands for the individual signatures.

19 So the document, 6408 contains two signatures numbered K9 and K10.

20 JUDGE AGIUS: Oh, I see. All right.

21 MR. WUBBEN: May I ask --

22 JUDGE AGIUS: Thank you, Doctorandus Fagel. That was extremely

23 helpful.

24 MR. WUBBEN: And that's also a kind of confirmation to -- perhaps

25 to my question.

Page 468

1 Q. If you can confirm the -- this document being used as a reference

2 document.

3 A. Yeah, that's right.

4 Q. Under what K number?

5 A. It contains the signatures which I examined on the numbers K9 and

6 K10.

7 Q. And will you please confirm also the ERN number.

8 A. ERN number is correct, yes.

9 Q. I --

10 A. Do you want me to speak it out?

11 Q. Mm-hmm?

12 A. It's 02066408.

13 Q. Next document K11, K12, ERN 02066409 to 02066410. And I ask for a

14 P number as well.

15 JUDGE AGIUS: The previous one has already a K9 -- 8 -- K10 has

16 already got a P number. According to my records it's 66.

17 THE REGISTRAR: Your Honours, I can confirm the other document

18 gets exhibit number P266.

19 JUDGE AGIUS: Yes. Thank you, Mr. Registrar.

20 MR. WUBBEN: And this --

21 THE REGISTRAR: And I may confirm that all the documents are under

22 P266.

23 JUDGE AGIUS: P266. So we don't need to give a number to K11 and

24 K12?

25 MR. WUBBEN: It has already P266.

Page 469

1 JUDGE AGIUS: It's part of 266 like the other ones were part of

2 P100.

3 MR. WUBBEN: Thank you, Your Honour.

4 Q. Please confirm, Doctorandus Fagel, whether you used this K11, K12

5 as a reference document and you recognise it.

6 A. This is -- I think 02066411 is K13.

7 Q. That's K13?

8 A. The document you are seeing now is K -- it has a signature of K12.

9 That's ERN number 02066410.

10 Q. Thank you. Now I move to document K13 also P266 and ask for your

11 comment.

12 A. Yes, this is the document 02066411 containing signature K13.

13 Q. Thank you. We move now to document K14, ERN 02066412 to

14 02066412A.

15 A. I think it's the first side of the document which contained the

16 signature K14. This is the side containing the signature, K14.

17 JUDGE AGIUS: Yes. There is no signature on the first page I take

18 it, no, on 6412?


20 JUDGE AGIUS: All right. So this would be one K and this would be

21 K14, no?



24 Q. Thank you. I move to the next document, K15 up to K33, ERN number

25 02066417 to 024 -- sorry, 02066435 and as I am -- it might be Your Honours

Page 470

1 so that this has already P272. Is that correct?

2 JUDGE AGIUS: No, P267 according to my records -- but I stand to

3 be corrected. Mr. Siller, perhaps you can check for us because you did --

4 THE REGISTRAR: We did not give the exhibit number 267 on the

5 record.

6 MR. WUBBEN: So that's the number, P266. Thank you.

7 [Trial Chamber and registrar confer]

8 JUDGE AGIUS: What number are we going to give this set of --

9 THE INTERPRETER: Microphone, please, Your Honour.

10 JUDGE AGIUS: What number are we going to give to this set of

11 documents which start from ERN 02066417 right up to and inclusive of

12 02066435?

13 THE REGISTRAR: Your Honours, this document gets now the exhibit

14 number P267.


16 MR. WUBBEN: Thank you.

17 JUDGE AGIUS: Thank you.


19 Q. Doctorandus Fagel, I request you now to take a look at this

20 19-page document one by one and to refer to the ERN numbers given to these

21 documents for recognition and comment.

22 A. Looking at the first page, page 02066417, and I recognise it.

23 JUDGE AGIUS: And incidentally I want to make sure,

24 Doctorandus Fagel, before you proceed, can you follow all this or not?

25 Do you know how to -- Mr. Oric, I'm talking to you, can you follow

Page 471

1 all this on your screen -- on your monitor or not?

2 THE ACCUSED: [Interpretation] Your Honour, I can follow, yes.

3 JUDGE AGIUS: Okay. Because we're talking about what purportedly

4 are your signatures, so I wanted you to be able to see them on the screen,

5 on your monitor.

6 THE ACCUSED: [Interpretation] I am following this. Thank you,

7 Your Honour.

8 JUDGE AGIUS: Thank you. You may sit down.

9 Yes, first page 6417 would be now K15?

10 MR. WUBBEN: K15.


12 MR. WUBBEN: If the witness can confirm.

13 THE WITNESS: That's right.

14 MR. WUBBEN: And then we move to K16.

15 A. It's page 2 of ERN number 02066418 that contains one signature

16 K16.

17 Q. Thank you. K17 Doctorandus Fagel.

18 A. Looking at ERN number 02066419 containing signature K17.

19 Q. Again the ERN number, please.

20 A. 02066420 --

21 Q. Is that subsequent to ERN number ending with 18 or shouldn't it be

22 19?

23 A. I think there should be a 19 here.

24 JUDGE AGIUS: 19, 6419 is K17. 6420 should be K18. Correct?

25 THE WITNESS: Also, this should be -- this is 19 I am looking now

Page 472

1 at. It's K -- just a moment. That's K17.


3 Q. Thank you very much. K18.

4 A. You already had it.

5 JUDGE AGIUS: Is it --

6 THE WITNESS: K18. It's 02066420 and it's signature K18.

7 JUDGE AGIUS: Correct.


9 Q. K19?

10 A. ERN number 02066421 containing signature K19.

11 Q. Thank you. K20.

12 A. ERN number 02066422 containing signature K20.

13 Q. K21.

14 JUDGE AGIUS: You can actually refer to the last four numbers

15 instead of the --

16 THE WITNESS: Thank you, Your Honour.


18 THE WITNESS: ERN number 6423 containing signature K21.


20 Q. K22.

21 A. ERN number 6424 containing signature K22.

22 Q. K23.

23 A. Number 6425 containing signature K23.

24 Q. K24.

25 A. Number 6426 containing signature K24.

Page 473

1 Q. K25.

2 A. Number 6427 containing signature K25.

3 Q. K26.

4 A. ERN number 6428 containing signature K26.

5 Q. 27. K27 to be precise.

6 A. Number 6429 containing signature K27.

7 Q. K28.

8 A. Number 6430 containing signature K28.

9 Q. K29, please.

10 A. Number 6431 containing signature K29.

11 Q. K30.

12 A. Number 6432 containing signature K30.

13 Q. K31.

14 A. Number 6433 containing signature K31.

15 Q. 32. K32.

16 A. Number 6434 containing signature K32.

17 Q. K33.

18 A. Number 6435 containing signature K33.

19 Q. K34 --

20 A. I think this is the last page of this document.

21 JUDGE AGIUS: That was the last page. So if there is another one,

22 I don't see it.

23 MR. WUBBEN: Is this a P number 268, Your Honour, also looking at

24 the court manager? K34, K35, Your Honours, is an 11-page document bearing

25 two signatures on the ninth page.

Page 474

1 [Trial Chamber confers]

2 JUDGE AGIUS: Yes. Can you -- Mr. Wubben, could you kindly please

3 give us the ERN number.

4 MR. WUBBEN: ERN number is 02917591 to 02917601.

5 [Trial Chamber and registrar confer]

6 JUDGE AGIUS: Let's proceed.

7 THE REGISTRAR: This document gets the exhibit number P268.

8 MR. WUBBEN: And, Your Honour, I take it that this is assigned to

9 the P number of 268, 268.

10 JUDGE AGIUS: Correct.

11 MR. WUBBEN: Thank you for this confirmation.

12 Then I ask the -- I request the usher to hand over this 11-page

13 document when available, the originals.

14 Q. Please, Doctorandus Fagel, do you recognise this 11-page document

15 as a reference showing documents, known documents you referred to in your

16 report as K34, K35?

17 A. For your information, I only used one page of this document, as

18 indicated in the report. It's in the page with the ERN number ending with

19 7599 containing the two signatures. I don't know if you want me to go

20 through all the pages, but I only used one.

21 Q. On what page did you recognise the originals or at least the

22 signatures as identified in your report?

23 A. The page numbered 02917599.

24 Q. Okay. Thank you.

25 MR. WUBBEN: That's for the -- Your Honour, that's for the

Page 475

1 reference documents.


3 MR. WUBBEN: That make that complete.

4 THE WITNESS: This is the document, yes.

5 MR. WUBBEN: May I proceed, Your Honour?

6 JUDGE AGIUS: Yes, certainly.

7 MR. WUBBEN: I would like to show Doctorandus Fagel the expert --

8 the other group of documents, the so-called questioned documents one by

9 one and request the expert to give his opinion of recognition of each of

10 them. And I will refer Doctorandus Fagel to the ERN and questioned

11 document number as used for examination and confirmed in his report.

12 JUDGE AGIUS: Yes. Go ahead, Mr. Wubben.

13 MR. WUBBEN: Thank you.

14 I request the usher to tender document Q1, that's exhibit number

15 P72 under ERN 02075805.

16 Q. Doctorandus Fagel, do you recognise this document? Can you tell

17 us whether -- oh, sorry.

18 MR. WUBBEN: I'll wait for a moment, Your Honour.

19 [Trial Chamber and registrar confer]

20 JUDGE AGIUS: Yes, Mr. Wubben.

21 MR. WUBBEN: Thank you, Your Honour.

22 THE INTERPRETER: Microphone for the counsel. Microphone.

23 JUDGE AGIUS: Microphone.


25 Q. Doctorandus Fagel, do you recognise this document? Can you tell

Page 476

1 us whether this document relates to the document referred to in your

2 report as Q1 and how did you number it.

3 A. I think so but I only used -- of this three-page document I only

4 used the last page.

5 Q. Please confirm.

6 A. This is the document 02065805, I think, containing no signature.

7 Q. And you recognised this as the questioned number one?

8 A. Yes.

9 Q. And --

10 A. No, not questioned one because the Q1 is a signature and it's not

11 on this page.

12 Q. Yes, the signature.

13 A. Yeah.

14 Q. And now the document P269, please -- and I would like to request

15 Doctorandus Fagel to do the same as the questioned signature Q2.

16 A. Excuse me, you don't want me to confirm the signature on the third

17 page of this document?

18 Q. Yes, I did ask and you did --

19 A. I didn't see it.

20 JUDGE AGIUS: Let's make this clear, because again this is getting

21 confused. In document P72, which in the B/C/S version consists of three

22 pages, what did you make use of for the purpose of your comparative

23 analysis?

24 THE WITNESS: The third page numbered 02075807.

25 JUDGE AGIUS: And did you give -- which one did you use? The

Page 477

1 stamp and the signature on the right or the signature on the left?

2 THE WITNESS: The one on the right side but this is a copy. I had

3 the original.

4 JUDGE AGIUS: Yes. And what number for your purposes did you give

5 it? What reference number.


7 JUDGE AGIUS: Q for queen?

8 THE WITNESS: And for question.

9 MR. WUBBEN: Thank you for this confirmation.

10 Q. Then I would like to move to document P269 for questioned

11 signature --

12 JUDGE AGIUS: This -- we don't have it yet, no?

13 Yes, ERN number is 02075809.

14 MR. WUBBEN: Yes, Your Honour.

15 JUDGE AGIUS: I have 5808 but I don't have 5809. It is P74.

16 The reference -- the ERN number 02075809 which you indicated in --

17 look at me, Mr. Wubben, in this updated list you gave us against P269 you

18 have ERN or description of exhibit 02075809. The 02075809 that I find in

19 my records at least, and I'm not using computers, is what is given exhibit

20 number P74. So it seems to me that it already has an exhibit number.

21 MR. WUBBEN: I'll look in my list as well, Your Honour, to -- for

22 P74. I can't confirm, so far, another older list. 75 is -- no --

23 JUDGE AGIUS: 75 is another one. 75 is another one.

24 MR. WUBBEN: It is another one. I have no 74 so far assigned

25 and -- as referring to this questioned signature document.

Page 478

1 MR. JONES: We can confirm we see that as P74 as well.

2 JUDGE AGIUS: According to my records, but again I stand to be

3 corrected because this is still very early in the case and these problems

4 do occur. We want to make sure, especially since we are dealing with

5 matters of authenticity and alleged forgeries, that we are dealing with

6 the same documents throughout, especially also since I would imagine later

7 on the Defence would need to have these documents examined also by their

8 own expert witness.

9 MR. WUBBEN: Your Honour, to accommodate you further we, according

10 to our overview of it, it is that P73 is assigned to 02075808, same

11 number. And --

12 JUDGE AGIUS: Yes, that's correct.

13 MR. WUBBEN: And P74 is assigned to 02075809.

14 JUDGE AGIUS: That's correct as well. That's what I have in my

15 records here. But in that case, we won't need P269 and 270 because those

16 are the two documents you referred. But I also want to make sure that in

17 the records of the registry P74 and P73 are precisely the -- what's P74 in

18 your records?

19 MR. WUBBEN: Your Honour --

20 THE REGISTRAR: Your Honours according to the registry record the

21 P74 has the following exhibit number: 02075809.

22 JUDGE AGIUS: That's correct. And P73 should have 5808. 5808

23 THE REGISTRAR: Yes, I can confirm that, Your Honours.

24 JUDGE AGIUS: So basically these two documents that we are going

25 to make use of will not be referred to as P269 and 270 as shown in the

Page 479

1 list that was handed to us, but as P74 and P73 respectively.

2 The moment you are finding problems, let me know, please,

3 Madam Usher and Mr. Registrar, because this is a very important exercise.

4 So let's go to P74. Again, there are two -- one stamp and what

5 seems to be two signatures. I want -- I would like the witness to confirm

6 to us which of those two signatures he used for the purposes of his

7 analysis and what is the reference number he gave to that signature and/or

8 stamp.

9 THE WITNESS: I'm now looking at 02075809 and the right-hand

10 signature below is the signature I examined as Q2. Again, I had the

11 original one so I could see more than you can see in this copy.



14 Q. Thank you.

15 MR. WUBBEN: May I move now, Your Honour, to document assigned a P

16 number 73, that's ERN 02075808 with questioned signature Q3.

17 Q. Mr. Fagel, may I have your comment please.

18 A. I'm looking at a copy of the original document I had numbered

19 02075808 and again the right-hand signature below is a signature I

20 examined as -- I have to check this. Just a moment. Yes, that's Q3.

21 Yes.

22 Q. Next document assigned number P99 with questioned signature Q4,

23 please. ERN number 00926395.

24 A. Yes, this is document 00926395 containing signature Q4.

25 Q. Next document, please, that is assigned document P4, ERN 01239504,

Page 480












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 481

1 questioned signature Q5. Q5

2 A. Yes, this is a copy of the original document 01239504 containing

3 questioned signature Q5.

4 Q. Next document, please, ERN 01801582 up to 1585, P269.

5 MR. WUBBEN: Please confirm, court manager --

6 JUDGE AGIUS: Let's see if we can locate this.

7 Mr. Roberts, perhaps if you have this catalogued under the ERN

8 numbers, does it refer you to anything 01801582?

9 MR. JONES: We did have it as P271, but maybe it's shuttled down

10 the list because a couple of the dropped -- exhibits have dropped out.

11 We're not sure but that's what we have it as.

12 JUDGE AGIUS: 271 hasn't been tendered as yet.

13 MR. JONES: This morning it was dropped.

14 MR. WUBBEN: Your Honour, the court manager might have it on a

15 small binder as P271 when my learned friend confirmed that that was the

16 prior-assigned.

17 JUDGE AGIUS: So if it's -- is it -- yes, Mr. Registrar.

18 THE REGISTRAR: I'd like to announce that this document gets now

19 the exhibit number 269.

20 MR. WUBBEN: Thank you. May I have --

21 [Trial Chamber and registrar confer]

22 JUDGE AGIUS: So for the record the document with ERN number

23 01801582 is being assigned -- being tendered into evidence as exhibit

24 P269.


Page 482

1 Q. Doctorandus Fagel, do you recognise this and please give me your

2 comment with a view to questioned signature Q6.

3 A. I think because this -- yeah, that's the one, but maybe a copy of

4 the same original. Can I have it? Yes, as you can read in my report,

5 this document seems to consist of two copies of the same original and the

6 signature is on -- which I used is on page -- the page numbered 01801583,

7 which you can see now. And this is signature Q6.

8 Q. And on the pages 1 -- no, 01801582, Doctorandus Fagel --

9 A. I didn't use any signatures on this page.

10 Q. And 1 -- excuse me 01801583.

11 A. Yes, that's the one I used containing signature Q6.

12 Q. Thank you for this confirmation --

13 MR. JONES: Your Honours we have that in the bundle we were

14 provided at -- 1585, we don't seem to have 1583 for Q6. So perhaps we

15 could be provided with that.

16 JUDGE AGIUS: Thank you, Mr. Jones.

17 Yes, Mr. Wubben or your case manager. I take it they will --

18 please proceed and deal with this later.

19 MR. WUBBEN: Yes.

20 JUDGE AGIUS: Thank you.


22 Q. Next document that is document Q8, ERN 01808 -- excuse me, 1586

23 and I would like to have a P number.

24 THE REGISTRAR: Your Honours, the document gets an exhibit number

25 P270.

Page 483

1 JUDGE AGIUS: Thank you.

2 [Trial Chamber and registrar confer]


4 Q. Doctorandus Fagel, you're now shown P270 as a document number with

5 questioned signature Q7. Will you please give me your comments and

6 observations.

7 A. That's right. It's questioned Q7 on document 1586.

8 Q. And the ERN number.

9 A. Full ERN number 01801586.

10 Q. Thank you. And I request as the next page to tender document

11 exhibit number page P6, and P6 is related to questioned signature Q8 and

12 has a number 01239515.

13 Please confirm, Doctorandus Fagel.

14 A. This is -- yeah, a copy of the original document 01239515

15 containing questioned signature Q8.

16 Q. Followed by document 01239519 to 9520, questioned document Q9.

17 I'd like to have a P number, please, unless it's ...

18 Can it be P270, former P272?

19 [Trial Chamber confers]

20 MR. WUBBEN: It might be -- and that is addressed to the court

21 manager under P267. That's information from my case manager. No? Okay.

22 THE REGISTRAR: I got this morning a binder with a document

23 indicating P267, but the ERN number over there is 01839519.

24 [Trial Chamber and registrar confer]

25 [Prosecution and registrar confer]

Page 484

1 THE REGISTRAR: Your Honours, the document bearing the ERN number

2 01239519 has exhibit number P9.

3 MR. WUBBEN: Thank you.

4 Q. Doctorandus Fagel, will you please confirm P9 is --

5 A. Yes, document number 01239519 is the first page of the document of

6 which the signature is on the second page. The second page is 01239520.

7 This is a copy of the original document containing signature Q9.

8 Q. Thank you.

9 MR. WUBBEN: May I move then to -- the following document is the

10 exhibit with ERN number 00926461 and should have exhibit number P3. I

11 hope I'm now correct.

12 Q. Doctorandus Fagel, can you please confirm and clarify?

13 A. Yes, this is document 00926461 containing questioned signature

14 Q10.

15 Q. I will move to the following document, exhibit number P10, ERN

16 01239521, questioned signature Q11.

17 A. Yes, this is page numbered 01239521 containing questioned

18 signature Q11.

19 Q. Next document, exhibit number P5 -- sorry, ERN 01239512 with the

20 questioned signature Q12, please. Doctorandus Fagel, will you please

21 confirm.

22 A. Yes, this is again a copy of the original document numbered 1 --

23 sorry, 01239512 containing questioned signature Q12.

24 Q. Following document exhibit number P7, ERN 01239517, questioned

25 signature Q13. Doctorandus Fagel, again do you recognise this document as

Page 485

1 referred to in your report as signature Q13?

2 A. Yes. This is a photocopy of the original document numbered

3 01239517 containing questioned signature Q13.

4 Q. Following document P39, ERN number 01839615 with a questioned

5 signature Q14.

6 A. This is a copy of document number 01839615 containing questioned

7 signature Q14.

8 Q. Following document, please, the exhibit number P13, ERN 01239528,

9 questioned signature Q15.

10 A. Yes, this is a copy of document number 01239528 containing

11 questioned signature Q15.

12 Q. Following document exhibit number P2, ERN 00926396, document

13 questioned signature number 16.

14 A. This is document number 00926396 containing questioned signature

15 Q16.

16 Q. Thank you. Following document -- exhibit number 37, ERN 01839608,

17 questioned signature Q17.

18 A. This is a copy of the original document 01839608 containing

19 questioned signature Q17.

20 Q. Thank you. Following document exhibit number P14, ERN number

21 01239544, questioned signature Q18.

22 A. Yes, this is a copy of document number 01239544 containing

23 questioned signature Q18.

24 Q. Following document Q19, exhibit number P20, ERN 01239623. The

25 document is of course related to questioned signature number 19.

Page 486

1 A. This is a copy of the original document numbered 01239623

2 containing questioned signature Q19.

3 Q. And the following document, next document, is exhibit number P36,

4 P36 related to questioned document -- signature Q20, ERN 01838180.

5 THE REGISTRAR: Your Honours, may I clarify. This is only the ERN

6 number of the last page of the document. The document starts with

7 01838178 and the last page is 01838180.


9 Q. Doctorandus Fagel, will you please confirm and clarify as prior.

10 A. Yes, this is a copy of the original document 01838180 containing

11 questioned signature Q20, the right-hand side.

12 Q. Thank you. Next document is the so-called war diary, exhibit

13 number P84, and I will ask Doctorandus Fagel to confirm whether he

14 received it for examination by himself or his colleague.

15 JUDGE AGIUS: Yes, Mr. Jones, is this --

16 MR. JONES: We don't seem to have that in front of us. We're just

17 checking.

18 JUDGE AGIUS: Okay. If you have a problem, let me know please.

19 Thank you.

20 MR. JONES: We've received the war diary before obviously but we

21 haven't received it again in the context of this report, so we can

22 probably proceed.

23 JUDGE AGIUS: I don't even see it listed in this list.

24 MR. WUBBEN: Your Honour, this is a part of the instructions

25 received for handwriting examination and document examination. The war

Page 487

1 diary is a document examination, and of course the following witness will

2 address it. That's why, as it came first, confirmed by Doctorandus Fagel

3 he received the materials and that's why he might confirm either he

4 processed it or not.

5 THE WITNESS: Well, of course I received the original. This does

6 look like copies of the original, but in a quick glance of course I cannot

7 say whether all pages are there.


9 Q. Did you hand it over or not, can you give any comment, of

10 transferring --

11 A. This is the original diary from Mr. Nasir.

12 Q. And what did you do with it?

13 A. I handed it over to my colleague, Jan Koeijer.

14 MR. WUBBEN: It is only the confirmation of receiving it and then

15 process it to Doctorandus de Koeijer. Thank you.

16 JUDGE AGIUS: I take it he did not make use of the war diary for

17 the purposes of his own analysis?

18 MR. WUBBEN: No. He was the first to receive all the materials

19 including that on behalf of Doctorandus de Koeijer.

20 JUDGE AGIUS: That explains why we don't have it. Yes.

21 MR. WUBBEN: Thank you.

22 Q. I come now to the next chapter of the analysis.

23 Doctorandus Fagel --

24 JUDGE AGIUS: One moment, Mr. Wubben, because -- Mr. Siller, we

25 break-in two minutes, no? Am I right or not? We should have a break --

Page 488

1 that clock is not working properly. In two minutes. So I suppose we can

2 have the break now and you start immediately after. Can I ask for your

3 indulgence and we try to limit the break to 25 minutes instead of 30. All

4 right? Thank you. We'll try to recover a little bit of the lost ground.

5 Thanks.

6 --- Recess taken at 12.30 p.m.

7 --- On resuming at 1.02 p.m.

8 JUDGE AGIUS: Yes, Mr. Wubben, you may proceed.

9 MR. WUBBEN: Thank you, Your Honour. I would like to proceed with

10 the analysis of this first report, and I will address the witness some

11 questions in that regard as an introduction to the analysis.

12 Q. My first question, Doctorandus Fagel, is what procedure method did

13 you adopt to examine these documents?

14 A. What you first do is to look at the -- all the inferior questioned

15 signatures to see if there are any special features, like whether there

16 are any indications of forgery, of copying or tracing, or whether they are

17 written fluently or not. Then we are -- take a look at the comparison,

18 the known -- the reference samples to see if the assumption that they are

19 all from the one person as they were represented can be taken to be

20 true -- I mean whether it's -- they are really consistent. We check if

21 they are -- there are enough samples, whether they are representative

22 enough. And after that we are comparing each of the questioned signatures

23 with the reference samples on the number of characteristic features.

24 Q. As part of your examination, do you also enlarge signatures, to

25 what extent and why?

Page 489

1 A. If necessary to see some details, we can have a look at parts of

2 the signature with a stereomicroscope.

3 Q. Can you tell me whether a signature can change by passage of time.

4 A. I think the most changes occur during adolescence -- until early

5 adolescence, late adolescence early adulthood. In general signatures do

6 not change much until people are getting aged -- old-aged because there

7 may be some tremors because the motoric functions are not as good as usual

8 or if they get ill before they may change. But over the years in general

9 until -- unless people intentionally change their signature, they do not

10 change much.

11 Q. Can you indicate any other factors that influence the signatures.

12 A. There are a lot of factors that may -- might influence the general

13 appearance of signatures like -- external factors like if a signature was

14 written in a moving car or on unstable ground. But there may be other

15 internal factors like the use of alcohol or drugs or even things like

16 having cold hands might influence the signature.

17 MR. WUBBEN: Your Honours, I would like to turn now to the

18 evaluation of the reference known documents and the questioned documents,

19 the Q documents and signatures as done by the expert, Doctorandus Fagel.

20 Again, these are the signatures included in the documents of the

21 declarations by Steve Tedder and Barney Kelly as accepted into evidence

22 and tendered as exhibits.

23 Q. Doctorandus Fagel, let's turn to your first report, P264, that's

24 the report with appendix number 3 with the ERN 03523870 up to 03523874.

25 So the evaluation of the reference known documents and signature focussed

Page 490

1 on the included signatures as examined by you.

2 My first question for you is -- I will wait for a moment.

3 Doctorandus Fagel --

4 MR. WUBBEN: Can I proceed, Your Honour?

5 JUDGE AGIUS: Yes. Thank you.


7 Q. Doctorandus Fagel, in your professional opinion, how did you

8 evaluate the reference signature in document K1?

9 A. You mean just the document K1? It's -- judging from the line

10 quality and the natural writing pressure variation, the signature was

11 written fluently.

12 Q. Can you please recognise the ERN number.

13 A. Yes. It's right --

14 Q. It's 02066400.

15 A. Sorry, I didn't know you wanted me to read it out.

16 Q. Can you confirm?

17 A. That's right, yes.

18 Q. Thank you very much. The -- how did you evaluate the reference

19 signature in document as K2?

20 A. The same as for K1. It's ERN number 02066401.

21 Q. And K3?

22 A. The same as for the previous signatures, and the ERN number is

23 02066402.

24 Q. So the same observations as the previous two ones are done. Thank

25 you. And please give me your observation on signature K4 and ERN number.

Page 491

1 A. The same observations apply to all signatures -- also to this one,

2 K4, on ERN reference number 02066403.

3 Q. And if you confirm in those four signatures so far the same

4 observations, can you confirm also the same person?

5 A. Well, these signatures are given to me as reference samples from

6 one person. So I take -- I do the investigation under the assumption that

7 these are indeed from the same person. And of course I do a check whether

8 this assumption is valid or -- at least whether there are no

9 inconsistencies about this.

10 Q. Thank you very much. K5, please.

11 A. The same as for the other signatures. Until now it's ERN number

12 02066404.

13 Q. K6.

14 A. Same as for the other signatures. 02066405.

15 Q. K7.

16 A. Same as for the other signatures. 02066406.

17 Q. Q8 -- K8, I'm sorry.

18 A. K8, yes, same as for the other known signatures. 02066407.

19 Q. K9.

20 A. Same as for the other signatures. 02066408.

21 Q. K10, starting page 2 of 5, ERN 03523871, please.

22 A. K10, it's the same -- as larger than the other signatures but

23 probably because there was more space for signing here. The ERN number I

24 got is 0206408.

25 Q. And K11.

Page 492

1 A. The same as for K1 until K9. The ERN number is 02066409.

2 Q. K12.

3 A. Came as for the other signatures. 02066410.

4 Q. K13.

5 A. Same as for the other signatures, 02066411.

6 Q. K14.

7 A. Same as for the other signatures. ERN number 02066412A.

8 Q. K15, meaning that we start with the subsequent page 3 of 5, ERN

9 3523872. Please, your observations, and can you not now repeat but again

10 start your observation and clarify.

11 A. Yeah. Well, again, judging from the good line quality and the

12 natural writing pressure variation, the signature was written fluently.

13 Q. And the ERN number, please.

14 A. 02066417.

15 Q. K16.

16 A. Same as for the other signature we mentioned before. ERN number

17 02066418.

18 Q. K17.

19 A. Same as for the previous signatures. ERN number 02066419.

20 Q. K18.

21 A. Same as for the signatures before. It's ERN number 02066420.

22 Q. K19, do you also recognise that one.

23 A. Same as for the previous signatures, number 02066421.

24 Q. K20.

25 A. Same as for the signatures before. ERN number 02066422.

Page 493

1 Q. We move now to the following page 4 out of 5, ERN number 03523873.

2 May I have your observations regarding K21.

3 A. Judging from the good line quality and the natural writing

4 pressure variation the signatures were -- this signature was written

5 fluently. And the ERN number is 02066423.

6 Q. K22.

7 A. The same as for the previous signature, 02066424.

8 Q. K23.

9 A. Again, the same as for the previous signature. ERN number

10 02066425.

11 Q. K24, please.

12 A. Same as for the previous signature. 02066426.

13 Q. K25.

14 A. Again, the same as for the previous signature. 02066427.

15 Q. Finally K26 for that page.

16 A. Same as for the previous signature, 02066428.

17 Q. Let us move now to page 5 of 5 from your report starting with K27.

18 And please have your observations and again confirm.

19 A. Judging from the good line quality and the natural writing

20 pressure variation, this signature was written fluently. And the ERN

21 number is 02066429.

22 Q. And K28.

23 A. Same as for the previous signature, 02066430.

24 Q. K29.

25 A. Same as for the previous signature. ERN number 02066431.

Page 494

1 Q. K30.

2 A. Same as for the previous signature. ERN number 02066432.

3 Q. And after K30, K31.

4 A. Same as for the previous signature. ERN number 02066433.

5 Q. And K32.

6 A. Same as for the previous signature. ERN number 02066434.

7 Q. K33.

8 A. Same as for the previous signature. ERN number 02066435.

9 Q. K34.

10 A. Same as for the previous signature. 02917599.

11 Q. K35.

12 A. Same as the previous signature on the same document. 020917590.

13 Q. When you look at the observations done confirmed by you as an

14 expert, what -- as a general observation checking out, what is your

15 observation regarding consistency in these reference signatures?

16 A. The reference signatures are quite consistent and show a natural

17 variation.

18 Q. So that will finalise that part of the analysis and to have

19 questions regarding this --

20 MR. WUBBEN: I would like to refer now, Your Honour, to appendix

21 number 2 of the report, ERN starting -- ERN 0352387867 up to 0352387870.

22 This regards the evaluation of the questioned signatures --

23 JUDGE AGIUS: One moment. One moment. According to what I have

24 here, Mr. Wubben, correct me if I'm wrong, appendix 2 consists of three

25 pages.

Page 495

1 MR. WUBBEN: Correct.

2 JUDGE AGIUS: Starting with 03523867 and finishing at 03523869.

3 MR. WUBBEN: That's correct.


5 MR. WUBBEN: So thank you for putting me on notice. I will start

6 with the --

7 JUDGE AGIUS: Incidentally, before you start because my attention

8 was drawn before we reconvened -- my attention was drawn to the fact that

9 what was admitted earlier on as Exhibit P270 indeed exists already as

10 P109. In order not to disrupt the order of documents as tendered, I'm

11 going to leave both of them -- this is how we used to do it in Brdjanin.

12 It happens all the time. This is not the first and only time we're

13 discovering that we've got two versions of the same document. We'll leave

14 it there, but for the record, please remember that 109 is also 270. Thank

15 you. Sorry for having interrupted you, Mr. Wubben, and you can proceed.

16 MR. WUBBEN: Well, Your Honour, I'm glad to hear that you confirm

17 as an experienced Judge that it happened all the time.

18 JUDGE AGIUS: Yes, of course.

19 MR. WUBBEN: I would like to now address of this appendix number 2

20 of this first report the evaluation of the witness of questioned document

21 signature Q1 in the same way and manner as I addressed the -- prior to

22 this the known signatures.

23 Q. To start with questioned signature Q1 and please refer also to the

24 ERN number given to this signature as shown. What characteristics did you

25 identify in this document for comparison with the reference document or

Page 496

1 other signatures?

2 A. The signature on document 02075807 was available for the

3 examination in the original. And judging from the good line quality and

4 the natural writing pressure variation, this signature was written

5 fluently. I didn't find any indications of copying or tracing within this

6 signature.

7 Q. With regard to questioned document signature Q2.

8 A. Here applies the same as for Q1. This signature was on document

9 number 02075809.

10 Q. The same characteristics or --

11 A. Same characteristics, yes.

12 Q. Questioned signature document Q3 and ERN number, please.

13 A. ERN number 02075208. This was available in the original and again

14 showed good line quality and natural writing pressure variation, so it

15 looks written fluently and there were no indications of copying or tracing

16 found by me.

17 Q. And how did you evaluate the questioned signature Q4?

18 A. I -- this signature on document number 00926395, let me see, I

19 only had a copy available of this signature and the quality of this copy

20 is too poor to allow detailed examination of the writing course and line

21 quality. As far as can be judged from the available copy -- no, that's --

22 no, sorry. That's all for this signature.

23 Q. Q5.

24 A. Q5, this signature on 01239504 was available in the original, and

25 judging from the good line quality and the natural writing pressure

Page 497

1 variation it was written fluently. I found no indications of copying or

2 tracing within this signature.

3 Q. Q6.

4 A. This signature was only available as a copy, photocopy, probably a

5 fax copy. And it was -- the quality of this copy was too poor -- too poor

6 to allow detailed examination of the writing course line quality.

7 Q. Q7 -- sorry, I will -- did you address the ERN number?

8 A. I'm not sure. But it was 1 -- sorry. 01801583.

9 Q. Q7.

10 A. Q7 is on document 01801586 and this copy was also too poor to

11 allow detailed examination of the writing course and line quality.

12 Q. Q8.

13 A. This signature was on documents 01239519. It was available in the

14 original, and judging from the good line quality and natural writing

15 pressure variation this signature was written fluently. I found no

16 indications of copying or tracing within this signature.

17 Q. That was the confirmation for -- again, what questioned signature

18 the latest -- Doctorandus Fagel --

19 A. Yes.

20 Q. The latest signature you confirmed was Q8?

21 A. Yes, that's right.

22 Q. Q9, please?

23 A. It is on document number 01239520, and it was available in the

24 original, and again judging from the good line quality and the natural

25 writing pressure variation this signature was written fluently and I found

Page 498

1 no indications of copying or tracing within the signature.

2 Q. Q10, please.

3 A. Q10 was on document number 00926416.

4 Q. Sorry. Again, please.

5 A. On document number 00926461. It was only available as a copy,

6 photocopy, and the copy was too poor to allow detailed examination of the

7 writing course and line quality.

8 Q. Q11.

9 A. Q11 was on document number 01239521. It was only available as a

10 copy. In this case the copy was good enough to observe some of the

11 detailed -- details -- line quality.

12 Q. Q12.

13 A. Q12 is on document number 01239512. It was available in the

14 original and judging from the good line quality and the natural writing

15 pressure variation the signature was written fluently. I found no

16 indications of copying or tracing within the signature.

17 Q. Q13.

18 A. Same applies here as to the previous signature and it was on

19 document 01239517.

20 Q. Q14.

21 A. Again the same applies as to the previous signature. It was on

22 document number 01839615.

23 Q. Q15.

24 A. Same applies as to the previous signature. Document number

25 01239528.

Page 499

1 Q. Thank you. Q16.

2 A. Q16 was -- is on document number 00926396. It was only available

3 in -- as a copy and this copy is too poor to allow detailed examination of

4 the writing course and line quality.

5 Q. Q17?

6 A. Q17 which is on document number 01839608 was available in the

7 original. Judging from the good line quality and the natural writing

8 pressure variation the signature was written fluently and I found to

9 indications of copying or tracing within the signature.

10 Q. Q18?

11 A. The same applies to this signature as for the previous signature

12 01239544.

13 Q. Q19?

14 A. The same applies as for the previous signature document number

15 01239623.

16 Q. Q20?

17 A. Q20 was also available in the original on document number

18 01838180. And also this is -- judging from the good line quality and the

19 natural writing pressure variation this signature was written fluently and

20 I found no indications of copying or tracing within this signature.

21 Q. Doctorandus Fagel, so in general you recognised these questioned

22 signatures as examined by you in this appendix?

23 A. I do so.

24 Q. As a general observation monitoring the outcome, can I take it or

25 not - and please can you comment on it - that in whole, partly, or

Page 500

1 non-observation is possible to confirm that it is the same person who

2 wrote all these signatures?

3 A. I didn't assume this. I checked each signature separately but of

4 course I made an inter-comparison between the signatures, and the least I

5 can say is that except for one they all have the same general design. It

6 looks like a part that can be interpreted as "Oric" in Cyrillic script

7 with two slash strokes in the "O" and a long horizontal stroke through

8 these slashes and the rest of the signature, possibly representing the

9 initial letter of the first name, "Naser," in Cyrillic script, which looks

10 like an "H" in our script. In signature Q6 this element is the slashes,

11 plus horizontal stroke is missing, but an extra part is added at the end

12 of the "Oric" part, probably representing the full first name Naser. But

13 I compared each of these questioned signatures individually with the

14 reference signatures.

15 Q. How did you arrive to the conclusions about the documents in

16 question?

17 A. I compared each of these signatures with respect to the overall

18 characteristics as far as possible, of course, because in the copies I

19 couldn't observe all characteristics. And I compared them with respect to

20 the overall design. And then I looked into all the separate elements.

21 What I actually do is -- when I compare the microcharacteristics, the

22 segmental features so to speak of these signatures or any other piece of

23 writing for that matter with another piece of writing, I actually tried to

24 break down this writing in consecutive elements and then we compare the

25 shape of these elements, the proportions of each other, and the order in

Page 501

1 which they are written to see if that is in agreement with the reference

2 signatures.

3 Q. Can you clarify to the Judges why some documents can be classified

4 as highly probable, probable, possible, or no opinion.

5 A. Yes, the documents where I could come to the conclusion that they

6 were highly probably written by the author of the reference samples were

7 all signatures which were available in the original. So in these

8 signatures I could see the most detailed -- could get the most detailed

9 information out of these signatures to compare them with the reference

10 samples. There was one -- one of the copies was relatively good, the copy

11 of signature Q11, and I could see some more detail than in the other

12 copies. So in this case I could reach the conclusion that this signature

13 was probably written by the author of the reference samples.

14 For all the other signatures which were only available in a

15 copy -- in quite a poor copy, I could only conclude that they were the

16 same as with respect to the general design. And as far as I could assess,

17 I couldn't find any traces of copying or tracing. So all I can say about

18 these signatures is they are possibly written by this person, except for

19 the signature Q6 which has a different design. And I would need reference

20 samples in the same version, in the same form, to compare this signature.

21 But again, this signature is rather -- has a rather poor quality, at least

22 the copy is a rather poor quality. So with this original or with this

23 copy I wouldn't expect to come to any further -- higher conclusion than

24 possible.

25 Q. What can you tell about the difference between possible and highly

Page 502

1 possible?

2 A. If you want -- if you mean by that whether I can quantify it, no,

3 I can't. But of course, possible. So, you said between probable and

4 highly probable?

5 Q. Possible and high -- I mean -- I meant probable and highly

6 probable as a kind of scale used in your conclusions.

7 A. Yes, as you know the strongest opinion is with probability

8 bordering on certainty, the next conclusion is highly probable, and the

9 next conclusion below that is probable. So the lower the conclusion, the

10 less information we have to come to this conclusion of identity or not.

11 Q. I will now move to your conclusions and ask you specific questions

12 for each signature as examined by you, as also shown on page 6 out of 10

13 of your report to P264 with the ERN number 03523857. And that ERN number

14 is the number of the page.

15 What was your final conclusion, Doctorandus Fagel, as an expert

16 regarding document -- signature Q1?

17 A. The conclusion was that it was highly probable that this

18 questioned signature was written by the author of the reference

19 signatures, Q1 to Q35.

20 Q. And what was your final conclusion regarding signature on Q2?

21 A. The same conclusion.

22 Q. Signature Q3?

23 A. Same conclusion.

24 Q. Signature Q4?

25 A. I could only conclude that this signature was possibly written by

Page 503

1 the author of the questioned -- reference signatures K1 to K35.

2 Q. And what was your professional opinion about the questioned

3 signature Q5 in your conclusion?

4 A. That signature was high probability written by the author of the

5 reference signatures K1 to K35.

6 Q. And Q6?

7 A. Q6, I could give -- Q6, I could give no opinion on this signature.

8 Q. And why could you give no opinion?

9 A. Because in the first place it's a very poor copy and in the second

10 place it has a different design from the other signatures.

11 Q. Was there a sign of forgery or can you comment on copying or

12 tracing in regard to this signature?

13 A. As far as I could observe, but that was not too much, there were

14 no signs of copying or tracing.

15 Q. And may I have your final conclusion regarding questioned

16 signature Q7.

17 A. Q7, for this signature I came to the conclusion that it's possibly

18 written by the author of the reference signatures.

19 Q. Q8.

20 A. For this I came to the conclusion that it was highly probable that

21 this signature was written by the author of the reference signatures.

22 Q. Q9, the signature questioned.

23 A. Also for this signature I came to the conclusion that this was

24 highly probably written by the author of the reference signatures.

25 Q. Q10.

Page 504

1 A. For Q10 I came to the conclusion that this was possibly written by

2 the author of the reference signatures.

3 Q. Q11.

4 A. For Q11 I came to the conclusion that this signature was probably

5 written by the author of the reference signatures.

6 Q. Q12 signature.

7 A. For signature Q12 I came to the conclusion that this was highly

8 probably written by the author of the reference signatures.

9 Q. Q13?

10 A. Same as for the previous signature.

11 Q. Q14.

12 A. Same as for the previous signature.

13 Q. You mean that both of them are highly probable?

14 A. Yes, that's right.

15 Q. And Q15.

16 A. Also for this signature I came to the conclusion that it was

17 highly probably written by the author of the reference samples --

18 signatures.

19 Q. Following Q16 signature.

20 A. For signatures Q16, I came to the conclusion that this was -- this

21 one was possibly written by the author of the reference signatures.

22 Q. Q17.

23 A. For Q17, I came to the conclusion that this one was highly

24 probably written by the author of the reference samples.

25 Q. Q18.

Page 505

1 A. This signature I came to the conclusion this was highly probably

2 written by the author of the reference signatures.

3 Q. Q19.

4 A. This signature I came to the conclusion that it was highly

5 probably written by the author of the reference signatures.

6 Q. Q20.

7 A. Also for this signature I came to the conclusion that this was

8 highly probably written by the author of the reference signatures.

9 Q. What was your overall opinion of the probability that the same

10 author -- the same signature applied here with comparison to the known

11 documents and their signatures?

12 A. I don't quite understand this.

13 JUDGE AGIUS: And I sympathise with you. I suppose you could put

14 the question again because I don't understand it either. It's too vague,

15 actually. I mean, what are you referring to?

16 MR. WUBBEN: I withdraw the question, Your Honour.

17 I finalise now this report. Is there anything you want to add to

18 what you said and clarify it, confirmed to the Judges with regard to this

19 report as an expert?

20 A. Well, maybe as I wrote in my report also that it's important to

21 note that the opinions concerning non-original signatures, reproductions,

22 are expressed on the assumption that the non-originals examined are true

23 and accurate representation of the original documents. And furthermore I

24 expect that if the original documents were available for examination, this

25 might result in stronger opinions for the signatures involved.

Page 506

1 MR. WUBBEN: Your Honour, this finalised the first report. I

2 would like to move on now to the additional report, that's report E265,

3 report of the 19th of July, 2004, ERN number 03594710 up to 56.

4 JUDGE AGIUS: Shall we start now? We've got four minutes left.

5 It's up to you. If you want the witness to introduce this report while we

6 have an additional report, he can cover this in four minutes or five

7 minutes, we can do it.

8 MR. WUBBEN: He can't cover this in the four minutes or five

9 minutes, Your Honour. So I will leave the subsequent order up to this

10 Trial Chamber.

11 JUDGE AGIUS: All right. Now, I do appreciate that today we lost

12 an amount of time dealing with other procedural matters, problems that

13 arose. We have the second report now. How long do you anticipate to be

14 dealing with that -- have this witness deal with this second report?

15 MR. WUBBEN: That should be limited compared to this morning,

16 because this morning we started with the processing.

17 JUDGE AGIUS: Yes, I would imagine.

18 MR. WUBBEN: So in my estimation one hour and a half.

19 JUDGE AGIUS: Hour and a half. And then, Mr. Nichols or Madam

20 Vidovic, take it that we will devote the first session of tomorrow's

21 sitting to finish with the examination-in-chief.

22 MR. JONES: Yes, Your Honour -- I must remind Your Honour of a

23 Mr. Nichols because you -- that's the second time you actually --

24 JUDGE AGIUS: Okay, Mr. Jones.

25 MR. JONES: We will need two or three hours, I imagine. Probably

Page 507

1 a bit more on the side of two hours. It should be short.

2 JUDGE AGIUS: Should we risk bringing over the other expert

3 tomorrow? Ms. -- Doctorandus Koeijer.

4 MR. WUBBEN: Your Honour --

5 JUDGE AGIUS: Because if you have the first session and Mr. Jones

6 has two to three hours, that takes us beyond the sitting of tomorrow.

7 MR. WUBBEN: Yes, Your Honour, that's true. Or perhaps some --

8 yeah, some ten minutes or half an hour and that's not really productive

9 when it comes to bringing over a witness.

10 JUDGE AGIUS: And Dr. Koeijer has to come from where? From

11 Rijswijk?

12 MR. WUBBEN: I don't know where he lives, but he has his office in

13 Rijswijk. I also know, happen to know that the office will be removed, so

14 they are in the process of removal as well, so ...

15 JUDGE AGIUS: Because if it is practical to ask him to come for

16 the last session, the last three-quarters of an hour, but not before that.

17 Otherwise, we'll leave him for the day after. But only -- I want to show

18 courtesy to the gentleman and not have him come from wherever in the

19 Netherlands, I don't know where he resides, only to find out that he's

20 still got to go back and come the day after.

21 MR. WUBBEN: Yes, Your Honour, when I look at the time, perhaps

22 it's more productive if he will be called not tomorrow but on Wednesday

23 morning to start. And it's also for him just a fresh start from the

24 beginning.

25 JUDGE AGIUS: All right. Perhaps the only other thing you can

Page 508

1 check is whether he by any chance will be here in The Hague, because if he

2 is here in The Hague in any case tomorrow, he could accept to remain --

3 stand-by wherever he will be and if necessary he will come over. But

4 that's only if he is in The Hague. If he is not in The Hague there's no

5 point in bringing him over and then telling him, very sorry, Doctorandus.

6 Koeijer, please go again and come tomorrow.

7 MR. WUBBEN: We will inform him is he is available from 1.00, then

8 that will be a good opportunity, if not in The Hague, then he start right

9 away on Wednesday morning.

10 JUDGE AGIUS: All right. Thank you.

11 Now, for the second report, please Mr. Wubben, your case manager,

12 and our registrar, please make sure that we don't have -- we don't take

13 out the same problems tomorrow. Make sure that all the documents are

14 available, marked, and identified beforehand so that when we start we know

15 exactly where to find them and which documents we are referring to.

16 Okay?

17 MR. WUBBEN: Yes, Your Honour.

18 JUDGE AGIUS: Yes, Mr. Jones.

19 MR. JONES: Just one matter. Just for the record, our case

20 manager is Ms. Jasmina Cosic, our CaseMap manager is Mr. Roberts. This

21 morning when the Prosecution was speaking of sending e-mails to our case

22 manager, I naturally conferred with our case manager, Mr. Roberts is our

23 CaseMap manager. That might explain some of the confusion. In any event,

24 I thought's important to put that on the record.

25 JUDGE AGIUS: All right. Okay. Thanks a lot. I thank you for

Page 509

1 your cooperation once more. And we will resume tomorrow at 9.00 in the

2 morning in this same courtroom.

3 Doctorandus Fagel, I thank you very much. You have been extremely

4 helpful. Unfortunately, you need to come back tomorrow. Tomorrow we will

5 try to start on time if there are no problems like we encountered today.

6 I also thank the interpreters, the machine operators and the technicians,

7 and the rest of the staff. Thank you.

8 --- Whereupon the hearing adjourned at 1.48 p.m.,

9 to be reconvened on Tuesday, the 12th day of

10 October, 2004, at 9.00 a.m.