Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2099

1 Friday, 26 November 2004

2 [Open session]

3 --- Upon commencing at 9.08 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes, Madam Registrar, could you call the case,

6 please.

7 THE REGISTRAR: Good morning, Your Honours. This is the case, the

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

9 JUDGE AGIUS: I thank you.

10 Mr. Oric, can you follow the proceedings in a language you can

11 understand?

12 THE ACCUSED: [Interpretation] Good morning, Your Honours. Yes, I

13 can follow the proceedings in a language I understand.

14 JUDGE AGIUS: Thank you. Please be seated.

15 Appearances for the Prosecution.

16 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben,

17 lead counsel for the Prosecution team, together with co-counsels,

18 Ms. Patricia Sellers and Mr. Gramsci Di Fazio, and our case manager

19 Ms. Donnica Henry-Frijlink.

20 JUDGE AGIUS: Thank you, Mr. Wubben. Good morning to you and your

21 team.

22 Appearances for Naser Oric.

23 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. I'm

24 Vasvija Vidovic, together with Mr. John Jones, representing Mr. Naser

25 Oric. And we have our legal assistant, Ms. Jasmina Cosic, with us, and

Page 2100

1 our case manager, Mr. Geoff Roberts.

2 JUDGE AGIUS: I thank you, Madam Vidovic. And good morning to you

3 and your team.

4 Any preliminaries before we go straight to business?

5 MR. DI FAZIO: I just wonder if Your Honours could indicate the

6 order of business.

7 JUDGE AGIUS: Well, that's very easy. I intended to start with

8 last point that arose yesterday, and that's the matter of why that

9 document was -- you say it was disclosed together with hundreds of other

10 documents.

11 MR. DI FAZIO: I'd be glad to address you on that.

12 JUDGE AGIUS: Yes. While the Defence maintains that that document

13 was not disclosed properly as one of the documents relating to a witness

14 that you intended to bring forward.

15 Yes, Mr. Jones.

16 MR. JONES: Yes. I don't know if it would assist Your Honour at

17 this point, but we'd prepared a brief chronology relating to that

18 statement and attached correspondence which we can pass up to Your

19 Honours.

20 JUDGE AGIUS: Yes. I think that would be useful.

21 Before we go ahead, just let me alert you to something. I was

22 informed this morning by my staff here, by our staff here, that there is a

23 technical problem today, namely, that the delay transmission apparatus is

24 not working properly, and that basically that means we had to choose

25 either to sit in private session or closed session, which none of us would

Page 2101

1 like to do, or else risk it and go live as we are actually doing. This

2 entails on each and every one of us an extra burden, and this is that we

3 need to pay more attention than usual not to mention names that we usually

4 would easily redact without consequences, because this time there is no

5 possibility of redacting in an effective manner, because the transmission

6 would have already gone on air.

7 So I appeal to you to be extra careful in mentioning names of

8 possible protected witnesses. I don't know if we have any this morning.

9 I doubt it. But one needs to be extra careful, please. Thank you.

10 Yes, Mr. Jones.

11 MR. JONES: Yes, if I could just pass up -- pass up that bundle, I

12 think it might be of assistance. I don't know if it also might assist for

13 me, perhaps, to go first and outline what precisely our objections were,

14 before Mr. Di Fazio responds. It's a matter for Your Honours, obviously.

15 JUDGE AGIUS: Were you given a copy of this before, Mr. Di Fazio,

16 or not?

17 MR. JONES: I'm providing it now.

18 MR. DI FAZIO: No, Your Honours.

19 JUDGE AGIUS: All right. I'll give you two minutes, three minutes

20 to go through it before you say what you have to say.

21 MR. JONES: Should I explain the chronology, if that would be

22 useful.

23 If I might say, our point yesterday is, of course, not that we

24 never received --

25 MR. WUBBEN: Your Honours, I apologise. If you give my learned

Page 2102

1 friend the opportunity to read through it.

2 JUDGE AGIUS: That's what I said. I said I'll --

3 MR. WUBBEN: Then it's perhaps better not to start right away.

4 JUDGE AGIUS: Yes, Mr. Jones, I mean, let Mr. Di Fazio -- give

5 Mr. Di Fazio the opportunity to read -- time to read this.

6 MR. DI FAZIO: I think I get the gist of it, if Your Honours

7 please.

8 JUDGE AGIUS: Yes, are you ready?

9 MR. DI FAZIO: Yes, if Your Honours please.

10 JUDGE AGIUS: Yes, Mr. Di Fazio. The only explanation I want is

11 this: From what I gather, that at a certain point in time, it appears, at

12 least from the 3rd or 4th March of this year onwards, you should have been

13 aware of the existence of this second statement of Svetlana Trifunovic.

14 It's true, there's no question about it, that you made the documents, the

15 rules of the road documents relating to the Naser Oric file, available for

16 inspection, and that inspection, in fact, took place. There's no question

17 about it. But in making those documents available for inspection, and

18 they being inspected is one thing. Handing even -- even handing them over

19 is another thing. But disclosure under Rule 66 for the purpose of that

20 particular rule in relation to a witness that you intend to bring forward

21 is another matter. That is a completely separate and distinct kind of

22 disclosure.

23 MR. DI FAZIO: Yes.

24 JUDGE AGIUS: I know it can be argued that you had nothing to

25 hide, because if you made it available for inspection, you definitely

Page 2103

1 had -- were not attempting to hide it from the Defence. But that's not

2 the point.

3 MR. DI FAZIO: The Defence examined, as you say, inspected,

4 various rules of the road materials on the 19th, 20th, and 21st of July.


6 MR. DI FAZIO: Over a three-day period. On the 28th of July, the

7 Defence wrote to the Prosecution, seeking a large number of documents that

8 had been the result of their inspection, a large number of documents.

9 JUDGE AGIUS: 28th?

10 MR. DI FAZIO: 28th of July.

11 JUDGE AGIUS: 2-8?

12 MR. DI FAZIO: 28th of July. They headed the letter "disclosure

13 of the Oric case following inspections at the OTP."

14 JUDGE AGIUS: Was this in writing? Because We don't have a copy

15 of it.

16 MR. DI FAZIO: It's in writing. I don't know if it's in the

17 bundle handed up to you by Mr. Jones.

18 JUDGE AGIUS: No, I don't see it. After the 28th of July, the

19 next document dates 2nd August 2004.

20 Yes, go ahead.

21 MR. DI FAZIO: After the 28th of July, the Defence wrote to us and

22 sought all sorts of documents that they listed in annexes attached to the

23 letter, including one particular annex, annex 3, which they

24 headed "documents from the Rule 66(B) file pursuant to inspection dated

25 19th of July 2004. Note to OTP: Please provide us with copies of all the

Page 2104

1 documents which we have marked with a VV in the right margin. Where we

2 have written complete doc, comp doc, whole doc, or document in full, then

3 please provide us with the whole document. Note the use of dittos; for

4 example, in the case of documents relating to a certain person, we are

5 asking for whole documents in all cases."

6 And then very helpfully, the Defence proceeded to list the names

7 of various persons, many of whom are witnesses in -- or were witnesses as

8 part of the Prosecution case. It's a long, lengthy document, and provides

9 very detailed instructions from the Defence -- well, requests from the

10 Defence to the Prosecution, specifying the particular documents.

11 You go through them, and eventually it has all sorts of notations

12 on it, in handwriting as well, and eventually you get to Svetlana

13 Trifunovic, and they ask for document RR321758, and they ask for the whole

14 document.

15 JUDGE AGIUS: What's the reference?

16 MR. DI FAZIO: RR321758.

17 JUDGE AGIUS: Do we have the document from yesterday? Madam

18 Registrar, this was D81.

19 MR. JONES: Your Honours, if it helps, on the front of the

20 chronology, we have the RR number --

21 JUDGE AGIUS: This is what I want --

22 MR. JONES: In fact, the document being referred to by my friend

23 is in the bundle where you have Svetlana Trifunovic. Our point is we

24 never receive it until the 27th of September, not that we didn't request

25 it.

Page 2105

1 JUDGE AGIUS: But if you received it, then you received it.

2 MR. JONES: There's never been any dispute that we received it.

3 It's a question of the Rule 66(A)(ii) disclosure.

4 JUDGE AGIUS: But I assume that if you asked specifically for a

5 document relating to Svetlana Trifunovic, you knew that Svetlana

6 Trifunovic was a prospective witness, because in a previous document - as

7 number 21 - you had indicated her name as being witness number 47.

8 MR. JONES: Indeed, Your Honours.

9 JUDGE AGIUS: So I would expect what's good for the goose is good

10 for the gander, and if I am to expect diligence on the part of the

11 Prosecution, equally I am to expect diligence on the part of the Defence.

12 MR. JONES: Absolutely. We've been pursuing these documents and

13 the others, many of which we haven't received disclosure of to this date.

14 You'll see in this bundle, Your Honour, there's a 66(A)(ii)

15 receipt which is what we typically receive from the Prosecution when they

16 disclose a prior statement. There is no such receipt for Svetlana

17 Trifunovic, and we did only receive the document in four boxes of material

18 on the 27th of September.

19 JUDGE AGIUS: And the RR number is not the same.

20 You said, Mr. Di Fazio, 372518. This document that we had

21 yesterday is 321946. It's not because I want to be finicky, but I

22 think these --

23 MR. JONES: It's within the range. That's the point.

24 JUDGE AGIUS: Yes. But it's not the same document. What I mean

25 to say, it's not the same document.

Page 2106

1 MR. DI FAZIO: But it's within that range of documents.

2 JUDGE AGIUS: Yes. But in other words, what Mr. Jones or Madam

3 Vidovic, or whoever, asked you to provide in relation to Ms. Svetlana

4 Trifunovic was not this document, it's another document.

5 MR. DI FAZIO: It was included in a range of documents.

6 JUDGE AGIUS: What's the range that you have then with regard

7 to --

8 MR. DI FAZIO: 321758, 322261.

9 JUDGE AGIUS: Oh, I see, uh-huh. Continuous, in other words.

10 MR. DI FAZIO: Yes, yes. It's within that bundle of documents.

11 JUDGE AGIUS: Yes, okay. Then that solves it, okay.

12 MR. DI FAZIO: Yes, it's within that bundle of documents. My

13 apologies.

14 If I can assist, the numbers are RR321758, RR322261. And I

15 apologise for speaking so fast.

16 If Your Honours please, the point the Prosecution wanted to make

17 has been made already. It's a simple point. This was a focused and

18 specific request.

19 JUDGE AGIUS: Definitely.

20 MR. DI FAZIO: It was a focused and specific request on the part

21 of the Defence that was replied to and accommodated.

22 JUDGE AGIUS: But that doesn't change something which is

23 fundamental, Mr. Di Fazio, that it shouldn't be that the Defence asks the

24 Prosecution to provide it with a particular document relating to a

25 particular witness. It is exactly the opposite, the other way around. It

Page 2107

1 should be the Prosecution, once it identifies that document as relating to

2 a witness, as being a statement of a witness that you intend to bring

3 forward, to disclose it immediately to the Defence.

4 MR. DI FAZIO: Yes, I appreciate that, Your Honour, and I don't

5 shrink from that. And yes, it would have been desirable to hand it over

6 sooner. It would have been. But disclosure continues in this case, it's

7 ongoing as we speak, and it will not stop --

8 JUDGE AGIUS: But we're talking about March 2004.

9 MR. DI FAZIO: Yes.

10 JUDGE AGIUS: We are not talking of a week ago or two weeks ago or

11 one month ago when we started the trial. We're talking of a good nine

12 months ago, basically, eight months ago.

13 MR. DI FAZIO: Yes.

14 JUDGE AGIUS: You had them, presumably, all these documents,

15 between the 3rd and the 4th of March. I grant you, you needed a whole

16 month to catalogue them, to see where each document -- to which pigeon

17 hole it belonged, whether it belonged to particular witnesses. I grant

18 you that. I grant you two months. But we're talking now of September,

19 when you finally end. You gave the impression yesterday, at least, that

20 you came here yesterday with the firm doubt in your mind that it could

21 well be that the Defence were not even aware of the existence of this

22 document.

23 MR. DI FAZIO: If I could --

24 JUDGE AGIUS: And I cannot allow a situation like that.

25 MR. DI FAZIO: If I gave that impression, then it's not the

Page 2108

1 impression that I sought to convey to Your Honour yesterday.

2 Something was said to me yesterday before court started that made

3 me doubt my clear and firm understanding that I had been informed that

4 that particular document, the document that was used in cross-examination

5 yesterday, might not have been disclosed. And that is what caused me --

6 caused my immediate alarm, because I had made specific inquiries in

7 relation to that document, and I'd been satisfied that it had been

8 disclosed. So yesterday a comment was made to me that made me doubt my

9 clear and firm understanding.

10 Accordingly, I walked the distance from here to the Defence table

11 to ensure that that -- what I hoped was not the case was, in fact, not the

12 case, and Mr. Jones confirmed that. That's the impression that I wanted

13 to convey.

14 JUDGE AGIUS: No one is attributing bad faith to you or to your

15 colleagues, Mr. Di Fazio. Please don't read me wrong. But this is not

16 the way things should go, should happen. I mean, it's simply -- well, I

17 expect this disclosure, particularly in a case which is not a big case --

18 this is not a big case, this is a fairly small case, with a fairly small

19 number of witnesses, certainly not with a small amount of documents, I

20 acknowledge that. But to tell me that until the day when the witness is

21 about to give evidence, one has sufficient space to harbour doubts as to

22 whether disclosure has been made properly, as it should, or indirectly

23 because it just happened to happen, it's not fair. It's not done.

24 MR. DI FAZIO: I appreciate that, and I don't try to shrink from

25 that, if Your Honours please.

Page 2109

1 JUDGE AGIUS: And I don't want to make a mountain out of a mole

2 hill, because there's no damage done, basically.

3 MR. DI FAZIO: That is -- I have to make that point, and I know

4 that Your Honour, I know that Your Honour may not want to hear that point,

5 but I must press that point. Yes, you are right, Your Honour is right

6 that it should have been a direct -- it should have been in a letter,

7 saying, here is the previous statement of that witness given to the Serb

8 authorities years ago. That is correct, and I don't shrink from that.

9 That would have been the desirable course, if Your Honours please. But

10 had the events having occurred in the way they did, the Defence has

11 suffered no prejudice at all.

12 JUDGE AGIUS: I acknowledge as well. I acknowledge as well. But

13 it is not -- when these things happen, certainly they are not conducive to

14 the environment that I tried to secure from the beginning, from the very

15 first day of this trial, because at that point in time, I would never

16 blame -- I was a defence lawyer myself before I became a judge, okay,

17 because I come from a system where, like in the United Kingdom, you're

18 selected from the bar. And I don't mean from a place where you drink, I

19 mean from a place where you exercise the profession. And I know that when

20 such things happen, suspicion creeps in. And the last thing I want in

21 this case is to have it flounder on the basis of defective disclosure or

22 anything like that. Let it go either way, this way or that way. None of

23 us really cares. I mean, we just want to make sure that justice prevails.

24 But let's not have a case which becomes a mistrial or flounders precisely

25 because of defective disclosure or non-disclosure.

Page 2110

1 MR. DI FAZIO: Yes, I understand that. I have absolutely no

2 quarrels with what Your Honour has said. Your Honour is, of course,

3 absolutely correct. But if you look at the way the events unfolded

4 yesterday, and if you look at the content of the motions that have been

5 put in by the Defence relating to the issue of disclosure, this is not one

6 of their complaints. This is not one of their complaints --

7 JUDGE AGIUS: But it --

8 MR. DI FAZIO: It became a complaint yesterday, if Your Honours

9 please, because as a matter of courtesy, I wanted to satisfy myself that

10 my understanding had, in fact, been correct, and so I approached the

11 Defence to make sure that I hadn't made a mistake and that the document

12 had been disclosed. The result is a complaint about disclosure. But up

13 until that moment, there had been, as far as I understand, I don't think

14 that document is the subject of any of the motions. I'm sure Mr. Jones

15 will correct me if I'm wrong. But it hadn't been the subject of any

16 specific complaint. It became a complaint following my approach to the

17 Defence.

18 JUDGE AGIUS: It had to become a complaint, Mr. Di Fazio. What do

19 you expect? I mean, you had Mr. Jones who said, I quote his own

20 words, "This document came to light not because it was pointed out to us

21 specifically by the Prosecution but as a result of the diligence of the

22 Defence team." I mean, step number 2 is very obvious. This document

23 should have been disclosed under Rule 66, and it wasn't disclosed. Step

24 number 3, whatever you say, there's always going to be a complaint about

25 non-disclosure. I mean, it's unavoidable.

Page 2111

1 MR. DI FAZIO: Well, with respect, of course, it was disclosed,

2 but it was disclosed --

3 JUDGE AGIUS: It was not disclosed under Rule 66 as a document

4 relating to a prospective witness.

5 MR. DI FAZIO: My understanding, if Your Honours please, is that

6 it was disclosed on the 27th of September, 2004, at the very latest. If

7 Mr. Jones has any quarrel with that issue, perhaps he could let us know if

8 that is so. And it was disclosed by way of a letter dated the 27th of

9 September, 2004, to the Defence.

10 MR. JONES: We should see that letter, if Mr. Di Fazio is going to

11 put forward that that letter specifically refers to prior statement of

12 Svetlana Trifunovic --

13 JUDGE AGIUS: Definitely he's not going to refer to that,

14 Mr. Jones.

15 MR. JONES: There's no quibble.

16 JUDGE AGIUS: Let's not waste time. However, do you want to take

17 the floor on this, Mr. Jones?

18 MR. JONES: I would, Your Honour.

19 JUDGE AGIUS: Very shortly, because I intent to bring this

20 argument to a close.

21 MR. JONES: Indeed, Your Honour. I would simply make four brief

22 points in reply.

23 Firstly, this is the second time this has happened. During the

24 testimony of Dr. Fagel, Mr. Di Fazio provided me with a document during

25 the break, again, a very important document that we'll see today, and so

Page 2112

1 as Your Honours says, you know, once bitten, twice shy, although those

2 weren't Your Honour's words.

3 Secondly, I do want to make clear for the record that this

4 document is from the rules of the road file, which means it was provided

5 by the Serb authorities to the Tribunal in this case. And I mention that

6 as an aside simply because Your Honour Judge Eser was referring to Latin

7 and Cyrillic scripts. This is a document provided by the Serbs to this

8 Tribunal. So I just wanted that to be clear for the record.

9 But I just did want to clarify, my objection to the OTP's conduct

10 was twofold. It wasn't that we hadn't received the document. Obviously,

11 we received it. We had to do some fairly fancy footwork to make sure that

12 the registrar had it with him in translation in Belgrade. But that's

13 another matter.

14 But my point was really this, and I'd like to just pass up the

15 proofing notes for Ms. Trifunovic so that Your Honours can follow me on

16 this point. And it's that her evidence appeared to be certainly that the

17 document was shown to her. That document was taken to Belgrade by

18 Mr. Di Fazio, so he obviously considered it an important document. It was

19 shown to her, and her evidence appeared to be that she even signed it.

20 Now, you'll see from the highlighted section on the second page

21 that essentially Ms. Trifunovic adopted the statement in the sense that,

22 in the proofing notes, she made one or two corrections. She said, well,

23 this appears to be a mistake, it wasn't my aunt's house, it was my house,

24 I don't recall a wounded man. But she implies the rest of the statement

25 was all right, that she was basically adopting that as her statement. And

Page 2113

1 in that context, I consider it inappropriate for Mr. Di Fazio to seek to

2 suggest in re-examination that this was a mere piece of paper which didn't

3 have any probative value, when he knew full well from proofing her that

4 she had essentially adopted this statement, and maybe even signed it.

5 Now, our experience in this case, and Your Honours may have a

6 similar experience, is that often when a witness is shown a document, that

7 they're then asked to sign it. Now, Mr. Di Fazio, who's said that he

8 didn't ask her to sign the document, and so we can't take that matter any

9 further. But obviously if it had been signed by her, then one has a new

10 document, and I was suggesting that that document should have been

11 disclosed to us. But we can leave that to one side.

12 Then there is the matter that it wasn't disclosed to us clearly as

13 a prior statement, under Rule 66(A)(ii) which may seem academic, but it

14 isn't, because it does show a breakdown in the Prosecution's system of

15 disclosure, particularly even with regard to Rule 68. And this is a

16 statement dated the 5th of February, 1993, when the witness was giving

17 evidence that she was in custody until the 18th of February, 1993. She

18 says in that statement that she was only detained for two days as opposed

19 to a month. It's clearly a Rule 68 statement as well and should have been

20 disclosed to us for that reason.

21 As I said, I don't wish to dwell on this. We can come back to

22 some of these matters perhaps over the motions in the afternoon. But I

23 would point out that in the bundle with the chronology which Your Honour

24 has, where there is a list of documents with the initials next to it,

25 which we have asked for that we still have not received, most of those

Page 2114

1 documents, including for Slavoljub Filipovic, who will be giving evidence

2 next week. And indeed there are documents relating to witnesses who have

3 testified already; Stanisa Stevanovic, for example.

4 JUDGE AGIUS: This is not a protected witness, I hope?

5 MR. JONES: No, Your Honour.

6 And as Your Honour points out, there is clearly a separate

7 obligation under Rule 66 --

8 JUDGE AGIUS: Definitely. I mean, especially -- this becomes a

9 very important matter, because as the rules have been changed, and

10 probably will continue to change, to facilitate the disclosure process

11 that the Prosecution is burdened with; on the other hand, or

12 simultaneously, the rights -- the specific rights of disclosure under 66

13 and 68 have to be applied with more rigour. It is so obvious. It is no

14 excuse to say, Now we have a system whereby all our archives are available

15 and come, please, and sit down and you can see whatever you like. That's

16 not disclosure. It is a kind of disclosure, but it is not the disclosure

17 that is required, the particular disclosure that's required under 66

18 and 68.

19 MR. JONES: Thank you, Your Honour. And I would end only by --

20 THE INTERPRETER: Could the speakers please slow down. Thank you.

21 MR. JONES: I would agree, Your Honour, and I would end by simply

22 requesting that the Prosecution review this correspondence again,

23 particularly for witnesses who are going to be testifying, as well as for

24 those who have testified, and provide us with the materials we've

25 requested.

Page 2115

1 JUDGE AGIUS: On the other hand, unless my colleagues would like

2 to raise anything in this regard, I honestly think that we should bring

3 this matter to an end. I think there is agreement amongst us that no

4 damage, no prejudice has been caused, because sort of -- it was a kind of

5 an automatic remedy to the unfortunate occurrence. I don't think that

6 we're talking of a prejudice anyway.

7 [Trial Chamber confers]

8 JUDGE AGIUS: Madam Usher, could you give this back to Mr. Jones,

9 please. Thank you.

10 The thing is this: The worst part of it, as I see it, is that

11 when these incidents arise, they are time-consuming. We have already lost

12 practically an hour between yesterday and today. That's an hour gone.

13 And I think the money and the resources of this Tribunal can be used to

14 much better purposes.

15 Yes, Mr. Di Fazio, please try to be as brief as possible so that

16 we close this.

17 MR. DI FAZIO: I've got nothing further to say on this particular

18 issue.

19 JUDGE AGIUS: All right. About the next witness, that one of next

20 week?

21 MR. DI FAZIO: It's about Your Honours, I understood, wanted to

22 conduct a -- hear submissions on two recent motions provided --

23 JUDGE AGIUS: Yes, but --

24 THE INTERPRETER: Could the speakers please not overlap. Thank

25 you.

Page 2116

1 JUDGE AGIUS: I'm sorry, I apologise.

2 But in the last part of his submission Mr. Jones mentioned a

3 particular witness who is supposed to be coming forward next week to give

4 evidence, and that also in that case, you have failed to furnish the

5 Defence with -- what is, exactly, the position, Mr. Jones?

6 MR. JONES: Your Honour, I'm referring, if you look again at the

7 bundle with the chronology at the front, within that, you have these

8 indices with ERN numbers and initials VV, whole doc, et cetera.


10 MR. JONES: And then you'll find there Filipovic on page -- I'm

11 sorry, the pages aren't numbered, but you'll see his name there. And you

12 will see that we have requested --

13 JUDGE AGIUS: Slavoljub?

14 MR. JONES: Yes. We have requested a lot of documents relating to

15 that witness, and we haven't received all of those documents. If I confer

16 with my colleague, I can see how much, if anything, we have received.

17 JUDGE AGIUS: Okay. Perhaps this you could sort out amongst

18 yourself.

19 MR. JONES: We have received nothing.

20 JUDGE AGIUS: You have received nothing? Why is that?

21 MR. DI FAZIO: I haven't prepared for Slavoljub -- I haven't

22 looked into that, if Your Honours please, and I can answer you without

23 going back, spending time looking at the correspondence and looking at the

24 issue. Your Honours --

25 JUDGE AGIUS: But the case manager, can the case manager find out

Page 2117

1 whether -- because this goes back to --

2 MR. DI FAZIO: She's apparently doing it now --

3 JUDGE AGIUS: Because there are the ERN numbers, and I -- from --

4 at least from what I know is that your record would show when that

5 document was disclosed.

6 MR. DI FAZIO: It should. It should. It should. But that needs

7 time, to look at the correspondence and ...

8 JUDGE AGIUS: I can give her -- usher, please, you can give the

9 case manager this document here. This is the gentleman we're talking

10 about, Filipovic, Slavoljub. And she can check while you talk, or while

11 we discuss this.

12 MR. DI FAZIO: If that can be achieved now, we'll do that for the

13 Trial Chamber.

14 JUDGE AGIUS: All right. Thank you.

15 MR. DI FAZIO: But what I wanted to raise with you, it's not the

16 earlier issue, it's this: One of the motions that was due for discussion

17 today concerns the non-disclosure of a statement.


19 MR. DI FAZIO: I wonder if you want to deal with that now, because

20 I can be very brief there --

21 JUDGE AGIUS: All right. So we're talking of the first supplement

22 to Defence Rule 68 motion; is that correct?

23 MR. DI FAZIO: Yes.

24 JUDGE AGIUS: The one filed on the 18th of November.

25 MR. DI FAZIO: We are. We are. And it strikes me as an

Page 2118

1 appropriate time to deal with that, given --

2 JUDGE AGIUS: I have -- do you have any objection, Judge

3 Brydensholt, to deal with that? No? We can deal with it.

4 However, before you start, before I give you the floor,

5 Mr. Di Fazio, because I think the public ought to know what we're talking

6 about. I mean, because you and us and the Defence know exactly what we're

7 talking about. But members of the public in the gallery, or on the other

8 side, who are following this -- the transmissions, wouldn't even know what

9 we're talking about.

10 On the 10th of September, 2004, there was a Defence motion filed

11 requesting an order for measures to ensure that the Prosecution complies

12 with Rule 68. Rule 68 deals, inter alia, with disclosure of exculpatory

13 material or material that could shed light on the credibility of

14 witnesses; inter alia, I say. At the time, this was at a time prior to

15 the commencement of this trial, we debated this motion briefly. However,

16 this motion was not ruled upon. And more or less, we entrusted ourselves

17 in your hands, particularly in the hands of the Prosecution, making it

18 clear that any serious failure to disclose pursuant to -- material

19 pursuant to Rule 68 would be taken very, very seriously.

20 Then subsequently, on the 18th of November, another motion was

21 filed by the Defence, and this is called the first supplement to Defence

22 Rule 68 motion. The supplement to this motion details general problems

23 with Rule 68 disclosures that, according to the Defence, are being

24 encountered in this case, and also gives one example.

25 Before I proceed any further, I want to make sure that the person

Page 2119

1 mentioned, the Croat mentioned in the motion, is not a protected witness.

2 MR. DI FAZIO: I'm not aware of any protective requirements, and

3 in any event, he's not a witness in the case.

4 JUDGE AGIUS: All right. Okay.

5 The Defence refers to a statement made by a certain Andjelko

6 Makar, a Croat, who allegedly held high-ranking positions in the TO and

7 subsequently in the 2nd Corps of the army of Bosnia and Herzegovina, in a

8 period which is relevant to the indictment. This statement allegedly was

9 taken by -- from that person by an OTP investigator, Mr. Nasir.

10 According to the Defence, the statement was not disclose indeed a

11 timely manner, but almost eight months after it was taken. Furthermore,

12 it was not disclosed pursuant to Rule 68 but under Rule 66(B). According

13 to the Defence, the statement includes portions which are clearly

14 exculpatory, and instances are given in the supplementary motion.

15 This is basically it, except that the Defence also points out that

16 in the event of late Rule 68 disclosures, the Prosecution tends to focus

17 on whether this has caused the Defence any prejudice or not, although this

18 is not one of the requirements for disclosure under Rule 68, rather than

19 addressing the issues causing delayed disclosure.

20 The Defence also stresses that in the case of the individual I

21 mentioned earlier, Makar, there has been prejudice since it contains

22 information which the Defence would have liked to pass on to its military

23 expert in a timely manner and well before the Prosecution military expert

24 testifies.

25 Finally, the Defence requests the Trial Chamber to take

Page 2120

1 appropriate measures to ensure that these instances to precipatorial

2 non-compliance with Rule 68 do not recur, including an order to the

3 Prosecution to report on the steps it is taking to address its repeated

4 failures promptly to disclose exculpatory material to the Defence.

5 So this much not because any of us needed to know this, but

6 because otherwise we would have had a discussion which, for all intents

7 and purposes to outsiders, would have been above their heads and would

8 have not been able to follow properly. That is not the purpose of the

9 element of publicity under which the trials should take place.

10 Yes. Now, Mr. Di Fazio, I saw you were very anxious to address

11 this supplementary motion. And thank God this is Friday, because usually

12 I'm more aggressive on a Monday.

13 MR. DI FAZIO: I wouldn't say anxious, if Your Honours please.

14 JUDGE AGIUS: Go ahead.

15 MR. DI FAZIO: I think I can cut out 50 per cent of the work that

16 the Defence needs to do on this motion, because I -- the Prosecution is

17 going to make certain concessions in regard to this particular document.

18 The Prosecution concedes that there has been late disclosure of this

19 document. The period of time between its taking in March and its

20 disclosure was far too long, and cannot be defended in any temporal sense.

21 The periods of time is just too long.

22 JUDGE AGIUS: Who is responsible?

23 MR. DI FAZIO: I'll try to get to that point, if I can, Your

24 Honours, as best I can. As best I can.

25 And the second issue that I want to concede on is that it does

Page 2121

1 contain Rule 68 material. Whereas undoubtedly it was also disclosable

2 under Rule 66(B), it clearly contained Rule 68 material, in the

3 Prosecution's view.

4 So what you have here is a situation where disclosure has

5 occurred, but it's not occurred within the full ambit of the rule, which

6 requires disclosure as soon as practicable. And that's not happened. So

7 in that sense, if that is a breach of Rule 68, then there has been a

8 breach of Rule 68, although now it's been rectified in the sense that the

9 statement has been handed over.

10 The focus of the previous motion by the Defence concerning their

11 generalised complaints about disclosure of the Prosecution and this motion

12 is that they suppose that there is a systematic problem with the

13 Prosecution, because there are, they say, instances where material has --

14 which should have been disclosed has not been disclosed. And I suppose,

15 therefore, they're asking you to invoke the provisions of Rule 68 bis and

16 use your powers under that Rule to do something. In this particular case,

17 I think they want a report, the Trial Chamber to issue a report.

18 The systematic failure that they focus on in this motion, and in

19 the previous motion, or that they raise in the previous motion, that they

20 highlight at the very least, is that, in their perception or view, the

21 Defence view, there is a problem with investigators alerting the

22 Prosecution team to material that contains disclosable -- that is

23 disclosable. They say that's the systematic failure. The Prosecution

24 submission says that, no, that is not so.

25 The Defence, of course, can have no idea how the Prosecution

Page 2122

1 organises itself, and can have not idea what might or might not cause a

2 failure -- I'm conceding it in this case, I'm not referring to other

3 documents that are the subject of other motions. So the Defence can have

4 no idea how the Prosecution organises itself. And that's illustrated by

5 what I know of the background to this particular document, because in this

6 case, the investigators - in fact, the particular investigator,

7 Mr. Nasir - was scrupulous in bringing it to the attention of the lawyers

8 in the Prosecution team.

9 Your Honour asked me earlier how did this come about, and I am

10 faced with a position of not being able to tell you precisely how it came

11 about, other than the fact that -- well, I can't tell you. It was

12 overlooked, and it may be that the cause of it, again I'm speculating

13 here, it may be that the cause of it was --

14 JUDGE AGIUS: You're a very good lawyer, Mr. Di Fazio.

15 MR. DI FAZIO: The cause of it, if Your Honours please, was the

16 fact that we didn't intend to utilise this person as a witness. I don't

17 know, Your Honour, and I admit from the start that that's my conjecture.

18 But I'm trying to shy away from the fact that it should have been

19 disclosed and it should have been disclosed eight or seven months ago.

20 And I accept that.

21 But to return to my original point: That the Defence focus on a

22 systematic problem is not made out and it is not made out here in this

23 particular case, because you can see that the very fault that they focus

24 on - some problem with investigators - is not the cause of the failure to

25 hand over this particular document as soon as is practicable, within the

Page 2123

1 meaning of Rule 68.

2 So that's what I can say. I wish there was a more specific reason

3 that I could provide to Your Honour as to why it was that it was not

4 disclosed. If there had been, I suppose the problem would have been

5 remedied at a sooner point -- at an earlier point.

6 The Defence also makes clear in its motion to you that the

7 Prosecution -- or submits to you that the Prosecution takes refuge in the

8 issue of prejudice. We're not seeking to take refuge in that issue,

9 because we've admitted our failure to comply with Rule 68. But you cannot

10 say that the question of prejudice is a matter that Your Honours should

11 ignore. And the Appeal Chambers have made that abundantly clear --

12 JUDGE AGIUS: I agree. You're exempted from pursuing this

13 argument. I agree with you. There is not need to explain it any

14 further. I agree also that it is not part of Rule 68, it's not -- Rule 68

15 does not depend on whether non-disclosure would cause prejudice or not.

16 But basically whether prejudice has been caused or not is definitely

17 relevant. So you don't need --

18 MR. DI FAZIO: I accept immediately that the Defence submission --

19 JUDGE AGIUS: Yes, Mr. Di Fazio, if I could kindly ask you either

20 to bring the microphone nearer to you or --

21 MR. DI FAZIO: I'm sorry, am I not speaking loudly enough? I do

22 apologise for that.

23 JUDGE AGIUS: Or raise your voice a little bit. One of the two.

24 MR. DI FAZIO: If Your Honours please, the Prosecution accepts the

25 Defence submission that disclosure exists and continues irrespective of

Page 2124

1 whether prejudice is caused. We don't have any quarrel with that

2 whatsoever. But where you have a situation where there has been a breach

3 of the rule, namely, the document not being disclosed as soon as is

4 practicable, the question of what you do brings into play the question of

5 prejudice.

6 The actual prejudice that the Defence will suffer they have

7 identified at paragraph 12 of their submission -- of their motion. They

8 complained that there has been a serious prejudice in the late disclosure

9 of this statement, and they make clear, as Your Honour has already pointed

10 out, that they will have to provide the material in the statement and the

11 report that's part of the statement to their expert. And in particular,

12 they say: "The Defence now has to react in a very short time period,

13 before the Prosecution's military expert, Dr. Arish Turle, testifies, to

14 re-instruct the Defence expert and to receive further comments and

15 opinions from him based on this newly disclosed material."

16 So they've crystallised it. It's made really clear in their

17 motion what the prejudice is, what they're going to suffer, as a result of

18 this late -- eight-month-late disclosure.

19 The Prosecution's submission is that that prejudice simply cannot

20 be so. Dr. Turle is not scheduled to give evidence before Christmas.

21 This case is going -- the Prosecution part of the case is going to go well

22 into the new year. Dr. Turle can be called, and in fact, I believe it had

23 already been the Prosecution's case to call him at a later point in the

24 presentation of its case, and in fact, can be called towards the end of

25 the Prosecution case. We're talking here of not weeks but months, if Your

Page 2125

1 Honours please.

2 Now, surely the Defence can, in a period of months, provide the

3 statement to their expert and say, What do you say about this and let us

4 know your view before we ask any questions of Dr. Turle.

5 So the prejudice that they refer to, in the Prosecution's

6 submission, is either non-existent, or so minor as to be negligible.

7 That, in essence, is the Prosecution's submission.

8 Can I just return to the issue of the more generalised complaint

9 of systematic failure.

10 This statement in itself is a clear example of why there isn't a

11 systematic failure. It's a -- this was a statement that called for

12 disclosure immediately. And it's obvious. It doesn't take long to read

13 to it -- to understand that. I say that because -- and I say that to

14 illustrate the fact that something -- it's purely and simply a question of

15 overlooking the obvious. There's no quarrel on the part of the

16 Prosecution that it should have been disclosed. It's so obvious that it's

17 a mystery to us why it wasn't.

18 So having said that, though, it's not as if -- the point that I'm

19 trying to make is that it's not part of a systematic failure. It stands

20 out. Clearly this should have been disclosed, and there's a lot of

21 material that's very easily discernible as disclosable, and this is and it

22 slipped through the net. And for that the Prosecution apologises. But we

23 ask you to look at the prejudice and say, Well, what's the consequence to

24 the Defence? Surely they can get their expert to comment on the material

25 in that statement.

Page 2126

1 JUDGE AGIUS: Thank you, Mr. Di Fazio.

2 Mr. Jones. I am asking you; I don't know who is dealing with

3 this, but I am assume that you are.

4 MR. JONES: Yes, Your Honour, and I'll be brief. Just four brief

5 points of reply.

6 As Your Honours have seen, this motion is entitled the first

7 supplement to our Rule 68 motion. All we can do is react to each instance

8 that we discover of non-disclosure and react to that, and there will no

9 doubt be subsequent filings which we will have to make. We don't know

10 precisely what the Prosecution has, so of course we're shooting in the

11 dark, to a certain extent.

12 But we do consider that these failings are indicative of a

13 systematic failure. We hoped that it was a matter of investigators not

14 drawing attention to the lawyers of these statements, because then it

15 seemed to us that it would be a relatively simple matter to say to the

16 investigators, Can you go off and look at other statements you've taken

17 and review them and see if there's more of this material. If the failing

18 is higher up, then that poses more of a problem, in fact, than if it's

19 merely investigators not drawing attention to this material.

20 I would just make this point: That this trial is receiving a lot

21 of publicity in the former Yugoslavia and --

22 JUDGE AGIUS: I didn't know that.

23 MR. JONES: Oh, indeed, it is, Your Honour. And as a consequence

24 of that, we have been contacted by people in the former Yugoslavia and

25 have told us, We have given statements to the Prosecutor about -- which

Page 2127

1 touch, for example, on Prosecution witnesses and which, not to put too

2 fine a point on it, has even suggested that some of them are killers. And

3 those are statements which we have not seen. Even aside from those more

4 dramatic examples, we are continually hearing --

5 JUDGE AGIUS: But, listen, if you have these allegations or this

6 information and you can pinpoint particular cases, then please come

7 forward. I mean, it's as simple as that.

8 MR. JONES: Yes, Your Honour, but this is Rule 68 material that

9 the Prosecution has --

10 JUDGE AGIUS: Yeah, okay. But I think what we have at stake at

11 the present moment is the question of whether there has been a systematic

12 failure or not, because this Tribunal is what it is and no one is perfect.

13 MR. JONES: Yes.

14 JUDGE AGIUS: And you cannot expect in any given case that the

15 disclosure under either 66 or 68 to be always impeccable, 100 per cent.

16 It does happen.

17 MR. JONES: Indeed, Your Honours.

18 JUDGE AGIUS: It does happen. We step in and we take even drastic

19 steps when it is intentional, when it is in bad faith, when it is

20 systematic. But when it is incidental, one closes a blind eye and moves

21 ahead.

22 MR. JONES: Yes.

23 JUDGE AGIUS: Now, if you say that you have indications that the

24 Prosecution has failed to disclose to you statements by other persons

25 relative to certain witnesses that have come forward, or may be coming

Page 2128

1 forward, that have not been disclosed to you, then come forward.

2 MR. JONES: Indeed, Your Honour. We'll take a tactical decision

3 on how to deal with that.

4 As far as prejudice is concerned, finally, the response of the

5 Prosecutor puts in mind the essence of someone who would say, Well, I

6 speed a lot but I've never had an accident. Well sooner or later, if you

7 speed continually, there's going to be an accident, and we'll see this

8 afternoon --

9 JUDGE AGIUS: Or you become a Formula 1 racer.

10 MR. JONES: Yes, Your Honour. We'll see this afternoon --

11 JUDGE AGIUS: What afternoon? Why are you speaking of the

12 afternoon?

13 MR. JONES: I was thinking that we were going to deal with the

14 second motion after Ms. Manas concerning the video.

15 JUDGE AGIUS: We are not sitting in the afternoon, are we?

16 MR. JONES: Well, after 12.00.

17 JUDGE AGIUS: Oh, I see, I see.

18 MR. JONES: My apologies. Where a witness has come to The Hague,

19 given testimony, and then left, and then we receive a videotape of him

20 giving a statement, as well as others. There is prejudice. The

21 Prosecution says, well, one can simply reinstruct our expert. Well,

22 unfortunately, on the Defence side, it's not that simple. We receive a

23 budget to instruct and expert and to commission a report from him. Once

24 we pay him to do that, we don't have funds to go back to him and say,

25 Here's some more material, can you keep looking at it. It's not that

Page 2129

1 simple. We require timely disclosure so that we can properly prepare for

2 trial.

3 JUDGE AGIUS: That's perfectly understandable.

4 MR. JONES: Thank you, Your Honour.

5 JUDGE AGIUS: Yes, I recognise Mr. Wubben.

6 MR. WUBBEN: Thank you, Your Honour. I would like to draw your

7 attention to the aspect of the tactical decision to be taken by the

8 Defence team whether or not to disclose to the Prosecution team the names

9 which are involved -- which are involved in -- specific persons who

10 informed the Defence team that they made statements to the OTP. We really

11 would appreciate to learn about this tactical decision, because we are

12 happy to do an extra check on those specific names to facilitate the

13 disclosure possibilities. And we would like to know what the outcome of

14 the tactical decision is, because if their decision is that they would

15 prefer not to provide us with those names, we would like to note it.

16 JUDGE AGIUS: Your responsibility is there under Rule 68, in any

17 case, Mr. Wubben. I don't think it depends on whether the Defence comes

18 forward and indicates to you the information -- gives you the information

19 or not. I mean, they can wait and use it tactically. You know that.

20 MR. WUBBEN: That's why --

21 JUDGE AGIUS: So if what Mr. Jones is saying is correct, and I

22 have no reason to doubt it, then it's a signal to you to recruit enough

23 resources in your team to do a thorough check and see whether there are

24 any other statements by other individuals relating to some of the

25 witnesses you have in this case - you had an indication also that some of

Page 2130

1 the witnesses may have been killers themselves - and see whether this is

2 another case of another case of unfortunate disclosure and be remedied at

3 this time by prompt disclosure under Rule 68. Beyond that, I'm not going

4 to tell Mr. Jones anything else.

5 MR. WUBBEN: Neither would I. It is a request, and that's why I

6 labeled this as an extra --

7 JUDGE AGIUS: But it's not a request of the Trial Chamber, it's a

8 request of the Prosecution. Let's make that clear.

9 All right. I think we can -- I think we can close on this matter.

10 We will reserve judgement on it. We still, obviously, have to discuss

11 whether we will give a decision or whether we will leave it pending until

12 the next case of non-disclosure comes up, and then we'll be in a position

13 to see -- to decide whether it is a systematic failure. That, we'll see

14 ourselves and we'll let you know in due course. But it's not something

15 that we are definitely going to decide now, or in the very near future.

16 It probably will be delayed, depending on the outcome of the debate that

17 we will have in camera between the three Judges.

18 Shall we attack the next item on the agenda now, or shall we have

19 a break now? What do you prefer?

20 MR. DI FAZIO: Well, I'm in Your Honour's hands. I suppose

21 Mr. Jones is ready to go.

22 JUDGE AGIUS: Better stay away, Mr. Di Fazio, because if you are

23 in my hands, as we go along, you're going to suffer.

24 MR. DI FAZIO: Yes. I'm happy to go ahead and do --

25 JUDGE AGIUS: Let's go ahead.

Page 2131

1 MR. DI FAZIO: -- and deal with the video motion.

2 JUDGE AGIUS: I think we'll start with that. We'll go with the

3 video. Again, I want to make sure that we are not dealing with persons or

4 names who are protected. I don't think we are.

5 MR. DI FAZIO: No, I don't think we are. No, I don't think there

6 are any substantial issues.

7 JUDGE AGIUS: All right.

8 Before we do so, again, I think we owe it to the public, in

9 general, the outsiders, to know exactly what we are talking about, why we

10 are going to see a video not in the course of the testimony --

11 MR. JONES: May I mention one matter?

12 JUDGE AGIUS: Mr. Jones, certainly.

13 MR. JONES: Apologies for interrupting Your Honour. There may be

14 a technical matter beforehand, which is this video contains interviews

15 with -- well, certainly four people who are of interest to us. I won't

16 mention the names now. One of them is actually interviewed twice, and the

17 second interview, towards the end of the video, is actually, in our

18 submission, the more important interview, and that has not been

19 transcribed by the Prosecution. And so we would certainly want that part

20 of the video also to be played. So it may be a technical matter, because

21 there won't be an English transcript, the interpreters would have to do

22 their best. I think I can mention the names. It's Jovan Nikolic. He's

23 interviewed twice.

24 MR. DI FAZIO: Well, I'm grateful for my learned --

25 [Trial Chamber confers]

Page 2132

1 JUDGE AGIUS: Yes, Mr. Di Fazio.

2 MR. DI FAZIO: I'm grateful to my learned friend for pointing that

3 out, because I wasn't aware of that, I hadn't realised it. I've caused

4 transcripts to be prepared, which obviously must be what I assume is the

5 first segment of his appearance in the videotape. Getting that

6 transcribed and prepared for you so that you can understand the Defence

7 point and the Prosecution reply, we can't do that this morning, and we

8 would have to get a full transcript. So do you want to put off -- do Your

9 Honours want to put off viewing the --

10 JUDGE AGIUS: I think basically we can divide it into two parts.

11 My intention this morning was to deal with this matter only insofar as it

12 relates to witness Eric, and to discuss whether Eric should be brought for

13 an additional cross-examination. And not to discuss the rest, because I

14 don't think it was on our agenda to discuss the rest. That's how I

15 understood it anyway.

16 MR. JONES: It was our submission, Your Honour, that the other

17 interviews would have been relevant to our cross-examination of Eric, and

18 that's why we were directing Your Honours' attention also to the other

19 interviews.

20 JUDGE AGIUS: Yes. But we don't need to see those today or to

21 show them to the public today. I mean, the whole point, the whole point

22 is that what needs to be seen today for our own satisfaction is the part

23 of the video where Eric appears, Eric appears, and I'm now going to give

24 information on what your motion is about, and so then everyone can follow.

25 And leave it at that time. And obviously the rest of the video can be

Page 2133

1 used even when Eric is brought -- is summoned again to this Tribunal.

2 MR. JONES: Sorry, Your Honour, it just strengthens our submission

3 that if we had seen this video, we would have put points on Nikolic --

4 JUDGE AGIUS: Yeah, yeah, okay. But it all depends on whether

5 Eric should be brought along or not. I don't think we need to see the

6 rest of the video in public. We can see it in any case.

7 MR. JONES: Right. That's quite true.

8 JUDGE AGIUS: So for the purpose of informing the public on what

9 is happening:

10 On the 18th of November, 2004, the Defence filed an urgent motion

11 regarding late disclosure of evidence, and to recall a witness -- and to

12 recall a witness. The gist of the motion is the following:

13 Already during the pre-trial conference held on the 28th of

14 September, 2004, the Defence complained that the Prosecution had failed,

15 despite repeated requests to disclose certain video footage on a CD to

16 them. In that context, there appeared at the time to be some

17 misunderstanding as to the contents of the CD in question. You will

18 recall the debate on that occasion.

19 Mr. Di Fazio, from the Prosecution, undertook on that occasion to

20 review the video footage and to resolve the matter. Subsequently, or

21 eventually, the footage in question was disclosed to the Defence on the

22 10th of November, the 10th of this month. That's eight days before this

23 motion that we are going to debate now was filed.

24 The contention of the Defence is the following:

25 The Defence states that "the video contains highly relevant and

Page 2134

1 extremely important material," I am quoting from the motion. "Regarding

2 events in Kravica," including interviews with several people. The

3 following are mentioned: Slavica Eric, a gentleman who testified in this

4 case on the 26th of October; Ratko Nikolic, who is scheduled to testify in

5 this case on the 3rd of December; and Miladin Bogdanovic, who you know now

6 will not be able to testify because of the medical certificate we have.

7 And Jovan Nikolic, the commander of the Territorial Defence unit of

8 Kravica during the relevant time period.

9 Particularly with regard to Witness Eric, the Defence points out,

10 inter alia, that in the video, Eric is seen wearing a uniform, whereas

11 when he gave evidence on the 26th of October, 2004, he stated that he only

12 wore an old JNA shirt and no uniform. The Defence notes that they would

13 like to cross-examine him on this issue, as well as on other related

14 issues, including the contents of the interviews with the others.

15 Consequently, the Defence seeks an order from this Trial Chamber

16 to have Mr. Eric recalled for further cross-examination. The Defence also

17 points out that the interview with Eric is material which the Prosecution

18 was obliged to search for and disclose before trial, pursuant to

19 Rule 66(A)(ii).

20 Since this is your motion, Ms. Vidovic or Mr. Jones, I give the

21 floor to you first, unless the Prosecution is in agreement with the

22 motion, which would cut short the debate and solve most of the problems.

23 Are you against having Mr. Eric being brought again for further

24 cross-examination?

25 MR. DI FAZIO: Yes.

Page 2135

1 JUDGE AGIUS: So Mr. Jones.

2 [Trial Chamber confers]

3 JUDGE AGIUS: Yes, Mr. Jones.

4 MR. JONES: Thank you, Your Honour. I think for the moment I

5 wouldn't seek to enlarge upon the motion to the extent that I hope it's

6 self-explanatory. I would emphasise the point which I was seeking to make

7 earlier that it's not simply the fact that Mr. Eric is in uniform but the

8 contents of the other interviews which provides material which could have

9 properly been put to him in cross-examination.

10 One other matter is that I was --

11 JUDGE AGIUS: Can you identify those?

12 MR. JONES: Sorry?

13 JUDGE AGIUS: Can you identify the other points that arise out of

14 the interviews with the other gentlemen that were mentioned that would

15 form part of your additional cross-examination?

16 MR. JONES: Yes, Your Honour. Jovan Nikolic, for one, in his

17 interview, speaks of how 49 of his best soldiers were killed during the --

18 49 of his best soldiers were killed during the attack of the 7th of

19 January, 1993, which is an issue going to military necessity and the

20 militarisation of the town, which Mr. Eric was understating.

21 JUDGE AGIUS: Yes. What else?

22 MR. JONES: Understating in his testimony. We also have in the

23 interview of Jovan Nikolic, the second one, I believe it is -- no, it's

24 the first one. He speaks of how the women and children, I believe, Serb

25 women and children were evacuated to Serbia so that the village could be

Page 2136

1 defended essentially by soldiers, again, an issue of evacuation of

2 civilians, which is a matter which we were putting to Mr. Eric.

3 Those points, certainly, we would seek to put to him. If I may --

4 JUDGE AGIUS: With regard to the other gentlemen?

5 MR. JONES: If Your Honour will allow me a moment.

6 JUDGE AGIUS: Bogdanovic, for example, or Ratko Nikolic, is there

7 anything arising from their interview which prompts you to put additional

8 questions on cross-examination if Mr. Eric is brought over?

9 MR. JONES: Mr. Bogdanovic speaks about trenches in Jezestica;

10 again, a issue which has been put to the witness, the question of defence

11 lines, et cetera. Ratko Nikolic talks about the attack briefly in his

12 interview. Perhaps Ratko Nikolic, the point is rather for his

13 importance -- for his coming testimony.

14 If I may make one separate point. I was thinking that this motion

15 might be considered after the testimony of Ms. Manas. One question which

16 I wanted to put to her is the searchability of these IIFs and MIFS.

17 JUDGE AGIUS: You can always put it to her later.

18 MR. JONES: Again, that's a matter which we touch on in our

19 motion, how this error could have occurred, of it being logged and lost,

20 the video, and that's something I would seek to return to possibly after

21 her testimony.

22 But apart from that, I would reserve my right to reply to the

23 Prosecution response.

24 JUDGE AGIUS: Thank you, Mr. Jones.

25 Mr. Di Fazio, why are you objecting to Mr. Eric being brought

Page 2137

1 again here for further cross-examination?

2 MR. DI FAZIO: Because if you view the video, there's nothing that

3 is inconsistent with what is depicted in the video with his testimony.

4 JUDGE AGIUS: This is why precisely I have asked Mr. Jones --

5 before seeing the -- watching the video, this is precisely why I have

6 asked Mr. Jones to point out which areas are covered by the various

7 interviews that would prompt the need for a further cross-examination or

8 an additional cross-examination.

9 MR. DI FAZIO: Yes.

10 JUDGE AGIUS: On matters that were not touched before or could not

11 have been touched before, or would have been touched before had this video

12 been available at the time.

13 MR. DI FAZIO: Yes. If Your Honours please, with respect to the

14 other points raised by Mr. Jones, I can answer with respect to Jovan

15 Nikolic, but only in respect of the first segment, because I haven't

16 seen -- I hadn't realised there was a second segment, and I would need to

17 see that.

18 JUDGE AGIUS: We're going to see it now because we're going to see

19 the whole -- how long is this video?

20 MR. DI FAZIO: We can go straight to the points. It's quite a

21 long video, but we can go to the specific parts of the video that show the

22 relevant bits --

23 JUDGE AGIUS: All right. So we will have a 30-minute break

24 starting from now, during which time, please, someone from your side will

25 identify the various bits and pieces of the video that we'll need to see.

Page 2138

1 I would skip the part relating to Ratko Nikolic, basically, because I

2 don't think we need to --

3 MR. DI FAZIO: My submission would have been he's coming and

4 they've got the video. So that's the end of that.

5 JUDGE AGIUS: All right. Okay. No, no, but I would suggest that

6 we skip Ratko Nikolic altogether, because --

7 MR. DI FAZIO: You mean depicting him later in court. Yes, I

8 understand.

9 JUDGE AGIUS: All right. So we'll have a 30-minute break. We'll

10 reconvene at five minutes to 11.00.

11 --- Recess taken at 10.25 a.m.

12 --- On resuming at 11.02 a.m.

13 JUDGE AGIUS: So we are now going to watch the relevant part of

14 this video recording. Does it have an exhibit number already?

15 MR. DI FAZIO: No, it doesn't.

16 JUDGE AGIUS: I thought so. I thought so.

17 MR. DI FAZIO: It hasn't been tendered into evidence yet.

18 JUDGE AGIUS: Then we'll have any further submissions you may or

19 may not have, I mean, it depends. But if you have submissions, we'll have

20 those, and that will then adjourn as far as this motion is concerned, and

21 we'll decide it in due course. That's number one. And then I think you

22 will need to decide whether to proceed with the testimony of Ms. Manas,

23 which is not urgent, or not. Our inclination is that if she's not in the

24 position to finish today, that we postpone it until some other day.

25 That's our inclination.

Page 2139

1 MR. DI FAZIO: That's fine by the Prosecution.

2 MR. JONES: Yes, that's fine.

3 JUDGE AGIUS: I'd rather not split it into two parts, for various

4 reasons. But I think you've got enough experience to understand precisely

5 what I mean.

6 So I understand that the technicians have been given information

7 as to the various parts that we need to see.

8 MR. DI FAZIO: Certainly. That can be done shortly. Can I just

9 mention one or two matters?

10 JUDGE AGIUS: Of course, Mr. Di Fazio.

11 MR. DI FAZIO: Of course, the motion is not just limited to the

12 single issue of the recall. It also goes into the history of this matter,

13 and dare I say it, it raises, for want of a better word, a disclosure-type

14 issue. I want to address you about that because there's --

15 JUDGE AGIUS: Are you insisting on that, Mr. Jones, or not?

16 Because more or less you know what our approach is on the matter, and if

17 it can spare us a few minutes, I think that would be to everybody's

18 advantage.

19 MR. JONES: Indeed, Your Honour. For our part, we're content

20 simply to have that on the record in the form of our motion. I can quite

21 understand why Mr. Di Fazio might want would to offer his explanation.

22 That's a matter for him.

23 JUDGE AGIUS: All right. Let's give the opportunity for

24 Mr. Di Fazio, in any case, to provide an explanation, and then the matter

25 is, for all intents and purposes, left at that, and obviously it goes on

Page 2140

1 record.

2 MR. DI FAZIO: Thank you.

3 If Your Honours please, the Defence motion makes a generalised

4 complaint of inaction on the part of the Prosecution in respect of this

5 particular portion of evidence.

6 In paragraph 7 of the motion, the Defence submits this: "The

7 matter was further discussed in depth at the Pre-Trial Conference held on

8 the 28th of September, 2004. The matter concluded with Mr. Di Fazio

9 undertaking to review the video material with a view to resolving the

10 impasse. Nothing further was heard from the Prosecution on this matter

11 until the correct video was finally disclosed to the Defence on the 10th

12 of November, 2004."

13 So a generalised complaint of inaction, as I say --

14 JUDGE AGIUS: He was expecting you to report to him every day.

15 Today I have done this, tomorrow I plan to ...

16 MR. DI FAZIO: Yes. In fact, if Your Honours please, the Defence

17 wrote -- sorry, the Prosecution wrote twice to the Defence on the issue.

18 On the 3rd of October, as part of a long letter dealing with disclosure

19 issues generally, we wrote to the Defence, and at paragraph 9 of that

20 letter -- so, you'll recall, the 28th of September is the start date which

21 our inaction commences, say the Defence, and then the disclosure date

22 which is in November.

23 So on the 3rd of October, we wrote to them: "With respect to the

24 pictorial description of the attack on Kravica, identified as 'Serb TV

25 video review of Muslim attack on Kravica,' I'm satisfied with the CD

Page 2141

1 disclosed to you which contains identical material to the exhibit

2 contained in our exhibit list."

3 In other words, you have the same material that we do.

4 "Mr. Di Fazio is currently reviewing that material, and we shall

5 advise you by Tuesday, the 5th of October, if we intend to make use of the

6 exhibit as part of the Prosecution case."

7 So we addressed the issue on that day.

8 You'll recall that the problem arose of this video because it

9 showed events that you couldn't describe as an attack on Kravica because

10 it was labeled as an attack on Kravica.

11 On the 5th of October, we wrote to the Defence, specifically on

12 that very topic. "We have completed reviewing the above-mentioned item of

13 evidence. I can confirm that, in fact, the item does not depict the

14 attack on Kravica, and was wrongly labeled as such when placed into the

15 evidence collection of the OTP. It depicts a miscellany, miscellaneous

16 items. I can confirm that you have not received the CD that corresponds

17 to the CD in the possession of the Prosecution," using the number, and I

18 don't need to quote it. And I then go on to briefly point out what the

19 video that we had shown them talked about.

20 And then the Prosecution wrote: "In the meantime, every effort

21 will be made to locate any visual depictions of the attack on Kravica in

22 the possession of the OTP, and such material will be disclosed to you as

23 soon as possible."

24 5th of October.

25 The investigator, whose name has been mentioned this morning,

Page 2142

1 Mr. Nasir, commenced looking for the material, trying to get to the bottom

2 of it, how it was that we had a description of a Kravica attack video,

3 I'll call it that, yet the material we hand over doesn't show that. So in

4 October, late October, he started to go to sources that he thought might

5 solve the mystery. He went to the Netherlands Institute of War

6 Documentation, trying to get a copy of the tape. He contacted them over a

7 period of days. He was eventually informed by that institute that they

8 did not have any such videotape of the Kravica attack.

9 He then turned his attention to a certain individual in the former

10 Yugoslavia who might be able to assist in his investigations, and again,

11 made inquiries lasting several days with that person. That person was

12 also unable to assist in locating the video.

13 Finally, he decided, well, that the best way to try and locate

14 this is to ascertain what the investigator who had -- who was said to have

15 logged, put into the system, so to speak, the tape, what he had -- what

16 else he had put in around that period of time, and he went through it

17 methodically. And he finally came to a video bearing ERN number

18 V000-2774, which, in turn, was wrongly mislabeled. However, he didn't

19 stop there. He kept looking, looked at it and thought this might have

20 been the material, and it was.

21 JUDGE AGIUS: How was it labeled? What was the name given to that

22 video or that item?

23 MR. DI FAZIO: "Videotape of Assault on JNA Convoy in Tuzla."

24 Now, that's how the mistake happened, and it's not -- it's

25 regrettable, but these things happen with the massive documentation. And

Page 2143

1 the Prosecution, rather than leaving the matter alone, did precisely the

2 opposite. We chased it. And if you recall, I can't remember the precise

3 detail, but I know this issue arose at some point, and it might have been

4 during the Pre-Trial Conference --

5 JUDGE AGIUS: It arose during the Pre-Trial Conference, yes.

6 MR. DI FAZIO: You may recall my emphatic indications to the Trial

7 Chamber that we were, the Prosecution was extremely interested in locating

8 this document, and it was, and it continued looking for it.

9 So the impression that is conveyed to you in the motion of the

10 Defence really provides you with a quite mistaken impression --

11 JUDGE AGIUS: But I suppose Mr. Jones was not aware of all these

12 humungous efforts made by you and Mr. Nasir and others in trying to dig

13 into this huge larder of goodies that you yourself didn't know what they

14 are, because they were labeled -- wrongly labeled. This is the problem.

15 It's like when you have a big deep-freezer and you put the wrong labels on

16 the wrong things, and you're looking for the right thing and you get the

17 wrong thing, or you never find the right thing. So it's -- I've done it

18 sometimes.

19 MR. DI FAZIO: That's the history of the matter. The Defence were

20 pretty clear and confident in their own mind that something fishy, if I

21 may use that word, was going on here. They claimed that nothing further

22 was heard, and yet it was. They claim in their submission that we didn't

23 apologise to the Defence. They claim that the consequences of this

24 mismanagement are grave, indeed. They claim that the mistake is

25 inexplicable.

Page 2144

1 JUDGE AGIUS: Mr. Di Fazio, don't stretch it too far, because you

2 have, sort of, given quite -- what I would consider a very good

3 justification of what happened.

4 MR. DI FAZIO: Okay.

5 JUDGE AGIUS: On the other hand, let's admit it. I mean, a

6 tape -- video recording of an event should be labeled in such a way as to

7 reflect the event that was recorded, and not to reflect something else.

8 So at the end of the day, when you come forward and say -- because you

9 kept repeating until the end of the pre-trial stage, sorry, Mr. Jones,

10 sorry, Madam Vidovic, we never had, we don't have a recording which deals

11 with the attack on Kravica. There is no such recording in our records.

12 Yet titles and names do not fall from heaven. If someone gave that video

13 recording that particular title, it must have originated from somewhere.

14 So at that point in time, let's put it like this -- I think I'm

15 reflecting the opinion of Judge Brydensholt and Judge Eser, if I'm not,

16 please speak out, that we're fully aware of the justification that you did

17 and of the efforts you made at the end of the day to try and locate this

18 tape if it existed at all, and that you finally managed to do that.

19 But still, I mean, again, this is time and effort spent when it

20 could have been all avoided.

21 MR. DI FAZIO: Well, yes, you're right, Your Honours. You're

22 right, it could have been, and it would have all been avoided if the items

23 of evidence were labeled properly.

24 JUDGE AGIUS: It's not your fault. It's not the fault of Mr.

25 Wubben, Ms. Sellers, obviously. I'm not trying to blame you. I'm happy

Page 2145

1 that you have cleared the air completely as far as it goes. On the other

2 hand, I mean, why blame Mr. Jones for standing up and asking for a

3 videotape on the attack on Kravica when the message was loud and clear

4 that you must have had a tape on the attack of Kravica somewhere, because

5 otherwise no one would have dreamt of labelling a tape, or a particular

6 tape, as such. I mean, who would have invented that?

7 MR. DI FAZIO: Mr. Jones and the Defence are within their rights,

8 and not only within their rights, but it demonstrates diligence on their

9 part for pursuing the matter.

10 JUDGE AGIUS: Of course. I would do exactly the same.

11 MR. DI FAZIO: I have no complaint with that, if Your Honours

12 please, and I don't seek to complain about that. And the Prosecution

13 wanted the material just as much. All I'm concerned about is that is

14 there seemed to be a suspicion on the part of the Defence that there is

15 somehow mala fides at work here. There's something fishy. That's all I'm

16 saying. And I want to emphasise that there just wasn't at any point in

17 the --

18 JUDGE AGIUS: I can tell you, Mr. Di Fazio, that if the Trial

19 Chamber had at any moment entertained even the least doubt on your

20 genuineness on all of this or your good faith, we wouldn't be dealing with

21 the matters of alleged non-disclosures the way we have. You can rest

22 assured that we'll hit you and you will never know what hit you before you

23 even know that you have been hit.

24 MR. DI FAZIO: Yes. Thank you.

25 JUDGE AGIUS: Yes, Mr. Jones.

Page 2146

1 MR. JONES: Very briefly, Your Honour. Firstly I apologise if I

2 overlooked an item of correspondence from the Prosecution in suggesting

3 that nothing further was heard. I think at the moment that we received

4 the correct video, it seemed like a red herring that we had had

5 correspondence on the wrong video.

6 In terms of suspicions. There is no allegation of mala fides or

7 anything of that nature. We did simply note in our motion, annex 1, that

8 the IIF description of the material refers to Slavica Eric. So of course

9 we thought that it would not be a difficult matter to have find that

10 material through certain electronic search. That's all I would add.

11 JUDGE AGIUS: Thank you.

12 [Trial Chamber confers]

13 JUDGE AGIUS: Yes, Mr. Di Fazio. Perhaps you can bring this

14 matter to a close now.

15 MR. DI FAZIO: I'll be very brief, and then I'll go straight into

16 Vaser Eric and then we can look at the -- sorry, Slavica Eric.

17 And, of course, what I've just told you about the history of the

18 discovery of this tape deals with the 66 point raised by the Defence.

19 Whether or not this video is a previous statement within the meaning of

20 the Rules just doesn't arise, because if it was, assume for the sake of

21 argument that it was, we still couldn't have disclosed it because of the

22 problem that I've just told you about. So that's my submission there.

23 So if we turn now to the substance of the motion. The relief that

24 the Defence seek is a recall of Mr. Eric. The motion in paragraph 8 puts

25 their point very clearly. The Defence submits that he testified that the

Page 2147

1 village guards did not have uniforms on the day of the attack. "To cite

2 but one example, Mr. Eric testified that neither he nor the village guards

3 had uniforms on the day of the attack."

4 If you go to the transcript at page 1192, I can read it out to you

5 very briefly, when he was being examined in chief, he was asked: "Well,

6 as a result of the formation of the unit of the battalion, how did things

7 change in terms of how the village guard functioned? Perhaps a little

8 better but mainly the same. Did you receive more uniforms, for example?

9 Answer: No."

10 Now, he's not saying there -- and that's page 1192, that's the

11 support that they rely upon, that he testified that neither he nor the

12 village guard had had uniforms on the day of the attack. He's not saying

13 that. He's saying that on the day of the formation of the unit of the

14 battalion, I believe that was in November of 2002, according to the

15 transcript, they didn't receive uniforms. He's not saying on the day of

16 the attack, which is a month and a bit later, We had uniforms. He's not

17 saying that. So I can't see how they can draw that conclusion. It's not

18 a fine point, it's not a fine point. Anything could have happened between

19 that time and the 8th of January. I'm not quibbling over minor details.

20 He just simply didn't say it.

21 Now, Your Honour Judge Brydensholt went to the issue, as the

22 Defence quite rightly pointed out, and Mr. Eric made clear his position.

23 He said that they received -- sorry, Mr. Eric said in his testimony that

24 he was wearing a shirt that was part of a former --


Page 2148

1 MR. DI FAZIO: -- JNA uniform. And also he said, at page 1266,

2 that numbers of men in the village guard had parts of uniforms, parts,

3 portions of uniforms. So --

4 MR. JONES: I hate to interrupt in mid-submission, but I don't see

5 how my learned friend cannot cite the previous part of that exchange: "So

6 was this guard uniformed at the 7th of January?" Answer: No." I don't

7 see how my learned friend has omitted that part which is critical to his

8 submissions.

9 MR. DI FAZIO: I don't deny it. It's there in the transcript, and

10 it's there as part of the motion. It's plain.

11 JUDGE AGIUS: Go ahead, Mr. Di Fazio. But don't you think

12 precisely that things being what they are, that Mr. Eric to this trial, to

13 this courtroom or wherever we'd be sitting, would clear up this matter,

14 and should also throw light on his credibility?

15 MR. DI FAZIO: No. Not on the issues that the Defence say --

16 JUDGE AGIUS: All right. Okay.

17 MR. DI FAZIO: -- would shed light on those issues. And this is

18 the main -- the main point that they make. This is the main point the

19 Defence makes.

20 The Defence position in paragraph 9 is that in the video Mr. Eric

21 is clearly seen to be in uniform. Now, when we see the video, you will be

22 able to draw your own conclusions as to just how accurate that is and just

23 how --

24 JUDGE AGIUS: We are going to see more than a shirt, actually.

25 That's the important part.

Page 2149

1 MR. DI FAZIO: Yes, it is. It is the important part, with

2 respect, and that's the -- and that's what the Defence -- the Prosecution

3 is going to ask you to pay particular attention to.

4 Your Honours also have, I think, the transcript --

5 JUDGE AGIUS: We better check what we have with you so that we

6 know what we don't have. I have here, and please, Judge Eser and Judge

7 Brydensholt, confirm to me, I have here a transcript of the part dealing

8 with Slavisa Eric, his interview on tape, and then Jovan Nikolic. The

9 first one consists of just one page, the second one of two pages.

10 MR. DI FAZIO: Before I go any further, apparently the Defence

11 have approached the Prosecution and said, Oh, there's a mistake here,

12 there's a mistake in this translation. This was prepared late yesterday,

13 on my instructions, to assist everyone in court with this -- dealing with

14 this submission.

15 JUDGE AGIUS: Can we have an indication as to what is the alleged,

16 or which is the alleged mistake, so that the attention is drawn of the

17 interpreters as we go along to maybe clear this up for us?

18 Yes, Madam Vidovic, please. Thank you, Mr. Di Fazio, for raising

19 this issue.

20 Yes, Madam Vidovic, please.

21 MS. VIDOVIC: [Interpretation] Your Honour, in the part of the

22 transcript referring to Mr. Jovan Nikolic, on page 2 it says that children

23 were sent from Serbia, that's the fifth line from the top. In the

24 original, it says that the weak were sent to Serbia, the weak. That is a

25 much broader term than the term "children," and I ask that this be

Page 2150

1 translated properly, because it's highly relevant. Thank you.

2 JUDGE AGIUS: Yes, Mr. Di Fazio. Anything to submit on this

3 point, in particular, before I refer it to the interpreters for their

4 attention as we go along?

5 MR. DI FAZIO: My point is that this is a working tool, this is

6 not an official translation. I had it done hurriedly yesterday.

7 JUDGE AGIUS: I understand that. I'm not criticising it. I

8 understand it. I suppose the only way of approaching it is to point it

9 out to the interpreters. As we approach the end -- towards the end of the

10 interview of Mr. Jovan Nikolic, please pay attention to the original words

11 on the tape and you can then translate them or interpret them to us

12 according to what you believe is the correct interpretation. The

13 contention is that where the written translation says, "because this

14 village, knowing for the enemy, for beasts that surround us, sent its

15 children to Serbia," it should read, according to Madam Vidovic, "sent the

16 weakest or the weaker to Serbia," and not "children to Serbia." Is that

17 correct?

18 MR. DI FAZIO: I don't quibble with that --

19 JUDGE AGIUS: I don't quibble with either of you because I don't

20 know what the correct interpretation is.

21 MR. JONES: Your Honour, we would just ask in terms of these

22 working tools that the first -- the second interview of Jovan Nikolic also

23 be played today, the one that starts at 1.08.17, and that a translation, a

24 draft translation be provided of that part of the interview, because

25 that's the one we say is the most important.

Page 2151

1 MR. DI FAZIO: That's the one that we don't have --

2 JUDGE AGIUS: Okay, it's not a problem. You're not expected to --

3 I mean, this is perfectly understandable. The interpreters will indulge

4 us and will try to translate as we go along, if they can. If they can't,

5 then we'll find another solution.

6 MR. DI FAZIO: I just have one last point to make, in my

7 submission of today, before you look at it.

8 JUDGE AGIUS: You have many points.

9 MR. DI FAZIO: And that's this: If you look at the text of

10 this -- the first one, the first text of Slavisa Eric, it fairly -- it's

11 fairly clear that he's talking about events in the past. There's nothing

12 in there that could -- would lead you to think that he's being interviewed

13 on the day of the attack.

14 JUDGE AGIUS: You don't have a day for this video recording, no?

15 MR. DI FAZIO: No, I haven't, unfortunately. But if you look at

16 the tenure, the tone, of the document, it's clear that he's talking about

17 events in the past, and some way in the past, in the Prosecution's

18 submission. He talks about it being --

19 MR. JONES: I don't know whether my learned friend gets that from

20 and whether he's giving evidence. There's nothing indicating a date.

21 JUDGE AGIUS: We'll see. If there's nothing indicating a day,

22 that's the only consideration that we can make or take --

23 MR. DI FAZIO: That's fine. But all I'm saying is that the actual

24 text itself, the actual text, he's talking about events in the past. That

25 would strongly tend to indicate that he's not saying this on the 7th of

Page 2152

1 January. That's my point.

2 JUDGE AGIUS: No comments on our part, Mr. Di Fazio.

3 MR. DI FAZIO: Thank you. We'll play -- if we can proceed to the

4 depiction.

5 JUDGE AGIUS: Yes. Shall we subdue a little bit the lighting in

6 the room? Because everything is reflected on our monitors here.

7 Yes, when we are in a position to proceed, let's proceed with the

8 running of this video.

9 [Videotape played]

10 THE INTERPRETER: [Voiceover] During the day, during the 7th of

11 January, we had 38 wounded persons, and because it was winter, and it was

12 not possible to evacuate the injured, we had few vehicles, there was

13 nothing to evacuate them with, and so they kept coming into the

14 outpatient's clinic, and we couldn't empty it in any way because there was

15 no way to evacuate them toward the River Drina, the territory that still

16 hadn't been closed off. They kept promising that helicopters would

17 arrive, that "Niva" vehicles would arrive from Bratunac, but they didn't

18 arrive. I can't remember exactly what time it was, but in the afternoon,

19 man arrived who said that we had to evacuate the wounded quickly because

20 the Turks had already arrived at the entrance to the village. We started

21 slowly -- well, in fact, we didn't have time. We had to speed it up.

22 These people were seriously wounded. All those who are able to walk got

23 up and started off slowly, but four, or rather, five wounded remained who

24 couldn't walk and had to be carried. There was Milojica Bogicevic, born

25 in 1976; his mother Mica, who was wounded in both legs; Zeljko Radovic,

Page 2153

1 also seriously wounded who couldn't walk; and Mladjen Savljevic; and

2 Dragan Radovic, who died somewhere around 1.00. He had heavy internal

3 bleeding, and we couldn't evacuate him in any way. So only four wounded

4 persons were left, and as the last people from the defence of the village

5 came, with their assistance, we would take the wounded people out and send

6 them off in the direction we were retreating in, towards the River Drina.

7 MR. DI FAZIO: As far as the Prosecution is aware, that depicts

8 the portion of the tape that the Defence is referring to.

9 JUDGE AGIUS: My question is the only one, and the most obvious

10 question that I could make: All we could see of this uniform that you are

11 alleging is a shirt, a camouflage shirt.

12 MR. JONES: With respect, Your Honour, that's not a shirt, that's

13 a jacket. A jacket with another camouflage shirt underneath. And as far

14 as we can tell, he's in full uniform. We can't see his trousers. He's

15 certainly not someone wearing, you know, a camouflage T-shirt and then

16 utterly normal civilian clothes over it. To all appearances, he's every

17 inch a soldier.

18 JUDGE AGIUS: All right.

19 MR. JONES: We were hoping the other clips should be seen as well.

20 JUDGE AGIUS: Yes, we're going to see those as well.

21 MR. JONES: Moreover, it's not a JNA uniform, in our submission --

22 JUDGE AGIUS: It's a camouflage uniform, wherever it comes from.

23 I wouldn't be in a position to distinguish a camouflage uniform coming

24 from JNA from a camouflage uniform coming from anywhere else, I suppose.

25 MR. JONES: It could be a matter of expert evidence. What is

Page 2154

1 important is the witness said his shirt was of the former JNA, and again

2 that's inconsistent with what we've seen, in our submission.

3 JUDGE AGIUS: All right. Let's proceed with the next part of the

4 video, starting point 0748.

5 [Videotape played]

6 JUDGE AGIUS: One moment, because we are not receiving

7 interpretation.

8 THE INTERPRETER: [Voiceover] Their barricades, obstacles that is,

9 that they had made while they were in power, they were now replaced with

10 the nefarious way of entering the village, killing people and setting

11 villages on fire. The first victim was Stojan Popovic from the village of

12 Magasici who was killed on May 15 at the door to his house where he was

13 born. Since then, we have been losing our sons, our best heroes, and we

14 have been going through a tragedy that would be very difficult to live

15 through again. On May 24th, an attack was organised, and it was already

16 clear at the time that the objective of the Muslim extremists was to

17 remove such a stronghold out of their way. Burning of villages,

18 Donja Brana, Erkovici, Donji Mratinci, Kicino, et cetera. People were

19 killed in those attacks. One of them was Vujadin, Dolijanovic. Miladin

20 Miladinovic was killed on May 27th. On the 29th of May, the Ustashas

21 organised an attack on Kravica, and at the entrance of the village, there

22 was a heavy battle in which we lost 13 people, including Milutin

23 Milosevic, chief of the public security station, and Golub Djevda, a

24 member of the War Staff at the time. Besides them, 11 more honourable men

25 from our village were killed. In view of the fact that they were always

Page 2155

1 using these nefarious channels, these sly moves during the war, the

2 Ustashas were especially active in setting up ambushes for us on the road

3 from Bratunac to Kravica, because they knew we were dependent on Bratunac,

4 that we had to use that road. On June 1st, 1992, I think that was the

5 most difficult time of all. We lost three good heroes, Raso Milosevic --

6 THE INTERPRETER: One name is unintelligible; remark by

7 interpreter.

8 THE INTERPRETER: [Voiceover] And Miodrag Jokic. At 7.30 in the

9 morning we found them in the village of Glogova when they were coming back

10 from there, because they were there on a private business trip. We buried

11 them and we bid farewell to them, and it was clear to us that this was

12 going to be a difficult fight. But despite Glogova and the road, we were

13 constantly in contact with Milici, going through Mratinjci and over Ravno

14 Buljim in order to get to Milici, because the road towards Konjevic Polje

15 was not open. They set up a number of ambushes there. They were

16 constantly intercepting us, killing us, and so on. During one such

17 occasion Dragan was killed, and Risto Lazic, who was a platoon commander,

18 was killed in an ambush while he was in Vrija. Similar thing happened to

19 Krsmojevic, Miodrag. So their motto was to inflict losses every day, to

20 inflict damage on us every day, to hurt our village. We accepted those

21 losses with great difficulty. Every man knows what that means, because

22 this village, knowing about the enemy, the animals that surrounded us,

23 sent its weak to Serbia and stayed there to defend the village, as much as

24 we could. And if necessary, we were prepared to lay down our lives for

25 our village. The Ustashas weren't satisfied to constantly set up

Page 2156

1 ambushes, and they also began to burn villages. They began to take our

2 villages one by one. And before the invasion by the enemy, this was

3 really a lot. It's hard to pick the words in such a situation, because

4 everything that a person could express can be expressed about something

5 like this.

6 JUDGE AGIUS: All right. So we have that second excerpt, and this

7 matter of interpretation/translation has been involved. Unless there are

8 objections, it's taken that we're in the draft translation here. Where we

9 have "children," it should read "weak" and not "children."

10 Mr. Jones would also like to ask to view the next part, the

11 subsequent interview of Mr. Nikolic, Jovan Nikolic, and that is at

12 which --

13 MR. JONES: It's at 1:08:17, according to my report.

14 JUDGE AGIUS: Has that been marked? Okay. So could I ask the

15 technicians to go straight to that other part of the video recording,

16 please.

17 MR. DI FAZIO: It's in Sanction, if Your Honours please.

18 JUDGE AGIUS: Right, okay.

19 THE INTERPRETER: [Voiceover] The village of Kravica, located on

20 the road 12 kilometres away from Bratunac between two Muslim villages, was

21 a constant threat, or better to say it was an obstacle, something very

22 difficult for the Muslim extremists to deal with. We made our defence

23 plans and did everything to protect our own people and property to avoid

24 the fate of our ancestors in World War II. The Serbian Democratic Party

25 was established in our village, and this was a party which had the task of

Page 2157

1 organising people to prevent bloodshed and the agony that was to follow.

2 We were the first to take up arms to defend our village and who took the

3 decision to defend the people. And we feel that this is our patriotic

4 duty, and that we are honour-bound to do it. The party had its launching

5 there, and we are proud of this. We are proud because we were aware of

6 what our goal was: To protect our people and to prevent the worst from

7 happening. Unfortunately, our plans were not realised. All those

8 barricades and obstacles that they set up when they were in power, they

9 replaced with surreptitious entries into villages, killing people and

10 burning villages. The first victim in all this was Stojan Popovic, from

11 the village of Magasici, who was killed on the threshold of the

12 supermarket on the 15th of May. From then on we lost our sons, we lost

13 our best heroes, and we suffered a tragedy that is very difficult to deal

14 with. On the 24th of May, an attack was authorised, and it was already

15 clear then that the goal of the Muslim extremists was to remove this

16 stronghold from their path. The villages of Mrkovici, Donji Bratinci

17 [phoen], Kicino, so on and so forth. People were killed in these attacks.

18 One of these was Vujadin Dolijanovic. On the 27th of May, Miladin

19 Miladinovic was killed. On the 29th of May, the Ustashas organised an

20 attack on Kravica, and at the entrance to the village, a difficult battle

21 took place in which we lost 13 people, along them Milutin Milosevic, chief

22 of the public security station, and Djevda Golub, a member of the War

23 Staff at the time. Apart from them, 11 other honourable men from our

24 village were killed. With regard to the fact that they always used these

25 nefarious perfidious channels, the Ustashas were especially active in

Page 2158

1 setting ambushes for us on the communication between Bratunac and Kravica

2 because they knew that we had to use this communication towards Bratunac.

3 On the 1st of June, 1992, I think this was the hardest fight at the time,

4 we lost three good heros, Raso Milosevic, Mico - the name was

5 unintelligible - and Miodrag Jokic. We found them in the village of

6 Glogova when they were returning at 7.30 in the morning from a private

7 business trip. We buried them with dignity, we bid farewell to them, and

8 it was clear to us that this fight was going to be a very hard one.

9 Despite Glogova, we had a constant obligation to have contacts with

10 Milici, crossing over Mratinjci and Ravno Buljim in order to get to

11 Milici, because the communication towards Konjevic Polje had not been

12 established. Over there, they set us a number of ambushes. There were

13 constant interceptions, constant killings, and so on. Dragan Satinovic

14 [phoen] was killed during one such contact, and Risto Lazic, who was a

15 platoon commander, was killed in an ambush while he was in Vrija. And

16 Miodrag Krsmojevic suffered a similar fate. Their motto was to inflict

17 losses on us daily, to hurt us daily, to hurt our village. And these

18 losses were something that was very hard for us. Every man means a lot.

19 And what this village meant for the enemies, the beasts surrounding us, we

20 knew this so we sent the weak to Serbia and stayed behind to defend our

21 village, as much as was possible, even if we had to be brave and give our

22 lives for our village. The Ustashas were not satisfied with the ambushes

23 alone. They started organising torchings and burnings of our village.

24 And it is hard to choose words in these situations, because it is

25 necessary to express our anger in the severest words possible. They burnt

Page 2159

1 everything, killed the feeble, women. And when the Ustashas organised an

2 attack on Magasici while the fighters were defending the village, they

3 entered the village perfidiously from the other side and killed a number

4 of children.

5 THE INTERPRETER: The interpreter cannot catch all the names.

6 THE INTERPRETER: [Voiceover] In this attack defending the

7 villages, fighters were killed such as- unintelligible - from Jezestica

8 and another man from Jezestica. The descendants of these Ustashas from

9 Jamnjeci [phoen] and Cizmici organised an attack on the village of

10 Jezestica, burning the village and killing ten heroes, including two

11 brothers called Milanovic, Andjelko and Dragan, their mother, Sava. And a

12 hero who arrived from Belgrade defended the village of Osojnica, and they

13 would carry trophies off to Srebrenica to show to each other what they

14 could do. The village of Zivkovica was a constant target for the Ustasha

15 attacks, and it always fended off these attacks with losses. On the 8th

16 of August, when the village of Jezestica was burned down, two good heroes

17 were killed, Jovo Milanovic and Bozo Martic. As of August, until October

18 or December, we lost men daily. Every day we buried our nearest and

19 dearest, said farewell to them, hoping that we will be able to save our

20 village. We cared a lot about our village. We had a village that had

21 everything, a school, a clinic, a church, a coffee shop, a football club,

22 a post office, everything. We cared about our village. We lived for it,

23 and we thought that we could save it. However, losing men, the number of

24 killed and wounded increased daily, and the circle around our village

25 tightened. This happened on the 17th of December. During a strong

Page 2160

1 Ustasha attack, we lost Rajko Tomic, Bato Tadic, and Vasilj Kotadorovic

2 [phoen]. On the 24th, Ustashas enters Glogova, surrounded the village,

3 and then we lost honourable fighters, such as Stanko --

4 THE INTERPRETER: The interpreter did not catch the last name.

5 THE INTERPRETER: [Voiceover] Minja Jovanovic, Vlajko Janic and

6 Boro Obradovic.

7 After entering Glogova, the village was surrounded, and from day

8 to day we expected what would happen on the bloody Christmas of 1993.

9 Christmas arrived the day when a proud Serbian village was wiped off the

10 face of the earth, the village of Kravica. It disappeared in the Ustasha

11 onslaught, losing 49 of its best fighters; 38 were wounded, and for two

12 and a half months, we could not go back to bury their bones, to give them

13 a decent burial and thank them for everything they have done for us.

14 This is the wartime story of the inhabitants of a village which

15 will rise again probably one day, because our goal has been realised, we

16 have now created the state that we fought for.

17 JUDGE AGIUS: Is that all? All right.

18 Any further submissions, Mr. Jones?

19 MR. JONES: Yes, Your Honour. We do have the -- one moment,

20 please, Your Honour.

21 JUDGE AGIUS: Let me make -- while you discuss with Madam Vidovic,

22 let me make something very clear: The fact that we have seen these two

23 persons, both Mr. Eric and Mr. Nikolic, here make statements in the form

24 of a TV interview does not qualify these statements as evidence in this

25 case, all right? So I'm making it clear so that later on, there will be

Page 2161

1 no questions on this matter. This is not Mr. Jovan Nikolic testifying in

2 this case, nor is it an additional evidence testimony on the part of Mr.

3 Eric. So I'm making things clear.

4 MR. JONES: Thank you very much, Your Honour. I'm obliged for

5 that clarification.

6 JUDGE AGIUS: All right.

7 MR. JONES: If I might just make the following observations: This

8 is Jovan Nikolic, the head of the Kravica TO, giving a great deal of

9 information, albeit we say in an extremely one-sided way, speaking about

10 the enemy, referring to Ustasha and Muslim extremists, and so what we say

11 a presentation very much covered by Serb propaganda, but nonetheless

12 revealing a great deal about the tactical situation in the area. And just

13 by way of checklist, I can refer to the fact that he referred to Kravica

14 as a stronghold from quite early on in 1992, that he referred to heavy

15 battles, he referred to a war staff, he referred to actions in Glogova, he

16 referred to difficult fights, he referred to contact with Milici, platoon

17 commanders, nothing on village guards, but everything coloured in military

18 terms, the evacuation of women and children, the establishment of the SDS,

19 about which we've heard from Dr. Gow, in the village, and that it was

20 organising people, that Kravica was the first to take up arms to defend

21 their village, that the SDS was launched in Kravica. He refers to

22 barricades and obstacles, Ustashas throughout, again, we say strong

23 anti-Muslim propaganda. He refers to members of the War Staff, the

24 significance, the strategic significance of the road from Kravica to

25 Bratunac. Of fights leading up to the 7th of January throughout December,

Page 2162

1 and that they were expecting an attack on the 7th of January. All of

2 this, we say -- and also the attack on Jezestica coming from Jaglici and

3 Cizmici. There's reference to volunteers from Belgrade. We say all of

4 this goes to issues of military necessity, which are key on the Kravica

5 charges, and all of which is material which we could properly have put to

6 Slavisa Eric, in the context of this motion, if it had been promptly

7 disclosed. And I referred also, of course, to the fact that 49 of the

8 best fighters died on the 7th of January, indicating a clear military

9 situation and a battle on that day. So it's in that context that I make

10 those submissions.

11 JUDGE AGIUS: I thank you, Mr. Jones.

12 Mr. Di Fazio.

13 MR. DI FAZIO: If Your Honours please, many of the topics raised

14 by Mr. Jones were covered by the content of the examination-in-chief. I'm

15 informed by my --

16 JUDGE AGIUS: He's not saying that they weren't. He's saying they

17 would have been covered differently or additionally had he been made aware

18 of the contents of this video at the time.

19 MR. DI FAZIO: Well, that may be so. How would he have been able

20 to approach it? He would have been able to show the witness, Mr. Eric,

21 this particular CD, and then asked him, Do you agree or do you disagree

22 with that, or do you have any information on this particular point that

23 Mr. Nikolic talks about in the course of the video.

24 JUDGE AGIUS: I'm not sure that we would have let him do that.

25 MR. DI FAZIO: Then how else could he have used it?

Page 2163

1 JUDGE AGIUS: But at least he would have had the information.

2 MR. DI FAZIO: But he may have had the information, but, Your

3 Honours, see, the problem is, what the Defence have to do is demonstrate

4 to you, that having had the information -- not having had the information,

5 they were therefore deprived of a particular line of cross-examination.

6 Now, if Your Honours are saying, well, you may not have even allowed him

7 to do that, then they're left in the same position, whether they had the

8 video or not. It's not quibbling, if Your Honours please, because it's --

9 JUDGE AGIUS: I won't comment, because eventually we will have to

10 take a decision on this, and we haven't discussed this amongst ourselves

11 as yet because we haven't seen the video. So I will reserve.

12 Yes, Judge Brydensholt.

13 JUDGE BRYDENSHOLT: Do you think it would be possible to determine

14 at what date this video is made? Do you know from where it originates?

15 JUDGE AGIUS: And in addition to that, don't you think that the

16 return of Mr. Eric would help us at least in regard to the dating of the

17 part in which he appears? Because it doesn't mean to say that Mr. Nikolic

18 and Mr. Eric and Mr. Bogdanovic, and Mr., whoever it is, the other one,

19 were all interviewed on the same day. But at least we will know from Mr.

20 Eric when he was interviewed.

21 MR. DI FAZIO: If Your Honours please, the attitude of the

22 Prosecution in this case has to be a delicate one. We don't want to stand

23 in the way of Mr. Eric being returned to -- and thereby deprive the

24 Defence of rightful points of cross-examination or deprive the Trial

25 Chamber of rightful inquiries that it may wish to make. The issue that

Page 2164

1 you raise -- that Your Honour Judge Brydensholt raises regarding the

2 timing of the -- of the film footage that we see, I suppose, could be

3 answered by Mr. Eric. You could say, Yes, it was taken three months

4 later, six months later, or taken on the very day. I don't know. But

5 there is every indication that there are other events depicted in the tape

6 that make it -- that certainly could, long after the 7th of January.

7 But to return to my point, all the Prosecution wants to do is to

8 call upon the Defence to provide you with clear, compelling reasons why

9 this man should be returned. If the Trial Chamber takes the view that

10 there are such compelling reasons, then we don't want to stand in the way

11 of justice, and we are --

12 JUDGE AGIUS: We are not taking that stand now, obviously. We

13 need to discuss --

14 MR. DI FAZIO: It's just that if we think about it in practical

15 terms, you've got Mr. Eric back here, he's sitting in the box, what is

16 going to happen? What can the Defence do? They can ask him about the

17 shirt. Well, that is really neither here nor there, because he's got

18 the -- we know what his evidence is. He said he had a JNA uniform on the

19 day. And that it's really -- the issue is relating to Mr. Jovan Nikolic

20 and the various factual matters that he raises that they have to rely

21 upon.

22 I haven't had a chance of analysing all of the transcript of

23 Mr. Jovan Nikolic in minute detail, and you'll remember -- sorry,

24 Mr. Slavisa Eric, in minute detail, and I wasn't the counsel who took him.

25 So if you would like more detailed submissions on each of the points that

Page 2165

1 have been raised by the Defence, I can address you. But the general

2 thrust of the Prosecution's submission is that, as far as the Jovan

3 Nikolic segment is concerned, what would they be able to do? He's talking

4 about a big sweep of events, covering lots of events, a long time. And

5 all they could --

6 JUDGE AGIUS: Is Jovan Nikolic an intended witness or not?


8 JUDGE AGIUS: But doesn't that strengthen even further the case of

9 the Defence, the argument of the case?

10 MR. DI FAZIO: I'm sorry, in what respect, Your Honour?

11 JUDGE AGIUS: You don't intend to bring forward Mr. Jovan Nikolic,

12 if he's still available, because I wouldn't even know that.

13 MR. DI FAZIO: Then the Defence will be --

14 JUDGE AGIUS: The only information they can get out of Jovan

15 Nikolic is what they can extract from this interview, which then can --

16 they can then use not in relation to Nikolic himself, because you are not

17 bringing him forward, but in relation at least to other witnesses.

18 MR. DI FAZIO: Mr. --

19 JUDGE AGIUS: They can definitely use that with other witnesses

20 that you will be bringing forward.

21 MR. DI FAZIO: That's not a problem.

22 JUDGE AGIUS: But obviously they did not have the opportunity to

23 use that material with Slavisa Eric. I'm just arguing with you at the

24 moment, you know, arguing the point with you, not deciding it.

25 MR. DI FAZIO: That's fine. In that case, if Your Honours might

Page 2166

1 then take -- adopt this approach: You might call upon the Defence and

2 say, Okay, you've heard --

3 JUDGE AGIUS: Call Jovan Nikolic yourself, sort of.

4 MR. DI FAZIO: Yes. Yes. But they might --

5 JUDGE AGIUS: I think they will rush -- they will ask for an early

6 adjournment of the case so that they file the necessary subpoena,

7 Mr. Di Fazio.

8 MR. DI FAZIO: You could ask the Defence to say, Okay, what

9 particular piece of information can you see that is depicted in those two

10 segments that you -- that is a revelation to you that you didn't have that

11 you couldn't put to Mr. Eric; and having obtained that, what would have

12 been your course of action? Would you have shown the video to him and

13 then asked Mr. Eric to comment upon it? What if Mr. Eric says, Well, I

14 know nothing about this. Jovan Nikolic can talk until the cows come home.

15 JUDGE AGIUS: You're speculating here.

16 MR. DI FAZIO: Well, this is so. Yes, we are. But the

17 application is to bring this man back. Now, as I said, if the Defence can

18 demonstrate clear, compelling reasons why he should be brought back, the

19 Prosecution will withdraw its opposition. But at this stage, we're not

20 satisfied that such reasons have been demonstrated.

21 MR. JONES: May I add one brief observation.

22 JUDGE AGIUS: One moment before you do so, Judge Eser -- okay, all

23 right.

24 Mr. Jones, yes.

25 MR. JONES: Yes, Your Honour. It's simply --

Page 2167

1 [Trial Chamber confers]

2 MR. JONES: Yes, Your Honour, simply to say this: Short of going

3 back over our cross-examination and saying for each question how we would

4 have worded it differently, which is obviously micromanagement at the

5 level which I think is not required of us, I would simply make this point,

6 that Jovan Nikolic refers to a lot of actions on different dates, a lot of

7 wounded people. We know that Mr. Eric was an ambulance driver, he was a

8 medical orderly. He certainly should have had knowledge that those fights

9 were going on on those dates --

10 JUDGE AGIUS: Not necessarily.

11 MR. JONES: That's something -- not necessarily. It's a question

12 of putting points to him. We don't say expect that he would agree with

13 every point we put to him. But it's ammunition we properly should have

14 had in our possession, and I make no more of it than that, Your Honour.


16 Judge Eser.

17 JUDGE ESER: My question may be considered as addressed to both

18 parties. Am I correct in assuming that there are two different issues

19 involved here: The question whether Eric wore a uniform on a certain

20 date, point 1; and what the other contents of his interview would be,

21 giving light with regard to the events on the 7th of January? Is it

22 correct to assume that these are two different issues?

23 MR. DI FAZIO: In one sense --

24 THE INTERPRETER: Would counsel please slow down.

25 MR. DI FAZIO: -- Defence submission, no. There are two reasons

Page 2168

1 as to why we bring this man back, why we bring Mr. Eric back. That's the

2 central application. And the reason --

3 JUDGE ESER: That's not my point at this moment. I just wanted to

4 know whether there are two issues involved, wearing a uniform on the 17th

5 of -- 7th of January, on the one side, and additional facts reported upon

6 by Eric in his interview.

7 MR. DI FAZIO: Oh, I see. Well, as I understand it --

8 JUDGE ESER: I think there are two different issues.

9 MR. JONES: Your Honours are correct. There are two.

10 JUDGE AGIUS: Definitely.

11 MR. DI FAZIO: That's how I understand it.

12 JUDGE ESER: Now, if I may continue. So far, even if you do not

13 know at this moment at what time the interviews have been taken, it seems

14 quite clear that they would not have been taken on the 7th of January. Is

15 that correct, my assumption?

16 MR. DI FAZIO: That will certainly be the Prosecution position.

17 Every indication that we have from the content of the tape is that it's --

18 they are interviews that were taken after, after that date. Yes, the use

19 of the language itself, I've already made that point. And in addition, my

20 colleague pointed out that it depicts -- it depicts a funeral in March,

21 held in March 1993. So you would think that it's subsequent to the --

22 JUDGE ESER: But if --

23 MR. JONES: Your Honour --

24 JUDGE ESER: Just a moment. If March 1993 would have been the

25 time of taking the interview, that would mean that the interviews with

Page 2169

1 Eric on the one side and Nikolic on the other side have not been taken at

2 the same time.

3 MR. DI FAZIO: We don't know that. We simply don't know that, if

4 Your Honours please. And if Mr. Jones is going to say, Well, you just

5 don't know when the interviews or segments were recorded, well, that point

6 is made. All we can do is point to indicia, to indications, for our view

7 that it's footage taken after.

8 JUDGE ESER: So if we assume that the footage was taken after the

9 7th of January --

10 MR. DI FAZIO: Yes.

11 JUDGE ESER: -- Yes? Now, what would it -- I would like to ask you

12 if my recollection is correct: Eric was saying that he may not have had

13 the uniform on the 7th of January, but that later on he had a uniform.

14 MR. DI FAZIO: Yes, I believe -- Ms. Sellers may be able to give

15 you more detail on that, and she'll correct me if I'm wrong, but I

16 understand that Eric's testimony was that he later joined the army, and

17 later they got -- and that later they got uniforms. That's my

18 recollection of the testimony, as I read it last night.

19 JUDGE ESER: So I think it would be very material to find out at

20 what time the interview was taken, and whether at that time Eric was

21 already a member of the army, or some army or some uniformed Territorial

22 Defence unit. Is that correct?

23 MR. DI FAZIO: It would be very material if, in fact, he was

24 wearing a uniform and was a member of the army at a later point in time

25 when the film was taken, yes, because then, of course, it doesn't

Page 2170

1 undermine his evidence that he was wearing a shirt on the day.

2 JUDGE AGIUS: I think we shouldn't concentrate our efforts much on

3 the question of the uniform more than on the rest, because basically I

4 think it would be a waste of the Tribunal's resources to bring Mr. Eric

5 here to tell us -- give us an explanation why on the footage he's wearing

6 an army camouflage jacket and why on the 7th he was wearing a shirt of --

7 a JNA shirt. But that, again, ultimately we will need to decide that.

8 But the rest is more important than the question on the uniform.

9 MR. JONES: May I respond ever so briefly as to the timing.

10 Obviously, the interview has to be after the attack. It's not a

11 prediction of the attack.

12 JUDGE AGIUS: I'm pretty sure.

13 MR. JONES: It's after the attack. Whether it's that afternoon,

14 whether it's the next day, none of us know. That's the starting point.

15 And we would be comfortable with the Bench drawing assumptions which are

16 the least favourable to the accused --

17 JUDGE AGIUS: We will not draw assumptions. If we don't know, we

18 don't know. It's no use trying to draw assumptions, at least none of us,

19 having been professional judges in our countries, we don't draw

20 assumptions.

21 MR. JONES: I just want to avoid a construction where we arrive at

22 the conclusion that it must have been many months afterwards when the --

23 JUDGE AGIUS: No, no, we are technocrats, Mr. Jones, like you are.

24 We don't take -- in a criminal procedure, you don't assume, you prove.

25 You either prove or you don't.

Page 2171

1 MR. JONES: I'm obliged, Your Honour.

2 JUDGE AGIUS: So I think we can close the argument on this. We

3 will be deciding this matter -- we will discuss it immediately after

4 the -- in the break, and we will hand down a decision early next week on

5 this. I don't think it presents us with major difficulties.

6 The last thing. I don't recommend that we start with Manas,

7 because we are not going to finish her, and I would rather prefer to use

8 the remaining time to discuss what -- in camera what we have discussed,

9 what we have debated in the courtroom.

10 Yes, Mr. Wubben. I thought you were --

11 MR. WUBBEN: I'm sorry, Your Honour.

12 JUDGE AGIUS: I thought you were requesting the floor.

13 All right. There are two things that I would like to mention.

14 May I remind you that the next sitting will be on Tuesday; you know that.

15 Also, for your information, the date of the Plenary, which was planned for

16 the 6th of January -- 6th of December, sorry, has now been moved to the

17 8th of December. So I'm informing you of this now, in case you didn't

18 know, so that you will make the necessary adjustments, because when I was

19 given the list of the witnesses we are to expect between now and

20 mid-December, first there was an indication that you had a witness in line

21 for the 6th, which would have been a problem in any case, because on

22 the 6th we were going to have the Plenary. Now we are not going to have

23 the Plenary on the 6th, so you can retain that witness on the 6th, but you

24 definitely need to shift the witness or witnesses you had planned for --

25 to come over and testify on the 8th, because on the 8th we will have a

Page 2172

1 full day of Plenary for sure, possibly also to be followed the day after.

2 But that would not create a problem. I mean, I can find a solution for

3 that. But on the 8th, definitely there will not be a sitting, because

4 it's an important -- we are discussing very important matters in Plenary,

5 and I need to be there for more than one reason, one of which is because I

6 chair the Rules Committee. So I won't be able to hold a sitting, and at

7 the same time, be in Plenary. And Judge Brydensholt and Judge Eser will

8 need to be present as well at this Plenary, so it's not a question of --

9 there's no solution to it. We won't sit on the 8th. But you need to

10 shift the order of witnesses. That's it.

11 I don't think there's anything else to discuss --

12 MR. JONES: Just apart from our request for a revised witness

13 list, so we can prepare for the --

14 JUDGE AGIUS: Yes. It's up to the Prosecution. I'm pretty sure

15 they will provide us with that.

16 MR. WUBBEN: Your Honour, we're working on that list, and we will

17 provide it on Monday.


19 MR. WUBBEN: And I take it that on Tuesday we'll sit in the

20 afternoon, not in the --

21 JUDGE AGIUS: I think that the entire week is in the afternoon.

22 MR. WUBBEN: Yes.

23 JUDGE AGIUS: If I remember well. I may be mistaken. It is

24 entirely -- and I don't think there is a way of changing it, because I

25 asked my secretary to see if we could change the dates, but it's

Page 2173

1 difficult -- change the sitting from afternoon to morning, but it's not

2 possible. If it is at all possible, registrar, please let me know, with

3 the exception of Thursday. Thursday I need the morning for myself.

4 So have a nice weekend, all of you, and please, God willing, we'll

5 reconvene on Tuesday, in the afternoon.

6 --- Whereupon the hearing adjourned at 12.12 p.m.,

7 to be reconvened on Tuesday, the 30th day of

8 November, 2004, at 2.15 p.m.