1 Tuesday, 31 May 2005
2 [Open session]
3 --- Upon commencing at 9.07 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Yes. Madam Registrar, could you call the case,
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-03-68-T, the Prosecutor versus Naser Oric.
9 JUDGE AGIUS: I thank you. And good morning to you.
10 Mr. Oric, usual question: Can you follow the proceedings in your
11 own language?
12 THE ACCUSED: [Interpretation] Good morning Your Honour, ladies and
13 gentlemen, I can follow the proceedings in my mother tongue.
14 JUDGE AGIUS: I thank you and good morning to you and you may sit
16 Appearances for the Prosecution.
17 MR. WUBBEN: Good morning, Your Honours, my name is Jan Wubben
18 lead counsel for the Prosecution. Also good morning to my learned friends
19 of the Defence team. I'm here together with co-counsel, Ms. Patricia
20 Sellers and Ms. Joanne Richardson, as well as our case manager,
21 Ms. Donnica Henry-Frijlink.
22 JUDGE AGIUS: I thank you and good morning to you and your team.
23 Appearances for Naser Oric?
24 MS. VIDOVIC: [Interpretation] Good morning, Your Honour, good
25 morning to the Prosecutor's team. My name is Vasvija Vidovic and together
1 with Mr. John Jones I appear on behalf of Mr. Naser Oric. With us are our
2 legal assistant, Mrs. Adisa Mehic, and our CaseMap manager, Mr. Geoff
4 JUDGE AGIUS: Thank you. And good morning to you and your team.
5 Any preliminaries?
6 MR. WUBBEN: Yes, Your Honour, it's a matter of circulating to
7 parties exhibits. It's -- first, it's quite a huge package of material
8 translated into English from different videos, some in full, some in part,
9 but these videos are already tendered. Also, to circulate P395. These
10 are copies of the original newspapers showing the sources as requested,
11 and also we would like to hand over a -- draft translations of two Defence
12 exhibits, D291 and D294 -- I apologise. I will modify that. That is for
13 the record 298 and 295.
14 JUDGE AGIUS: 299 I heard you say. I could hear with the
15 headphones from here. She said 288 and 2 -- 298 and 299.
16 MR. WUBBEN: Yes, Your Honour and I apologise because this is all
17 at the last moment, a kind of organising and managing and then sometimes
18 the control is not great.
19 JUDGE AGIUS: In my country, Mr. Wubben I had a reputation from
20 inside the courtroom, I could hear what people were saying outside the
21 courtroom and we had two double doors and I could still hear if they were
22 saying something that I didn't like.
23 MR. WUBBEN: That's of great assistance to all the staff,
24 Your Honour, who is sitting behind glass who think they are safe
25 JUDGE AGIUS: There are a few instances where I just had them
1 brought inside the courtroom and it was the surprise of their lifetime to
2 know that I heard the foul language or the insulting language they had
3 addressed either to me or to whoever.
4 MR. WUBBEN: Your Honour, I take it also as a kind of advice for
5 instructing my team of the level of whispering.
6 JUDGE AGIUS: Exactly.
7 MR. WUBBEN: Also, Your Honour, I'd like to tender the documents,
8 the correspondence upon agreed facts and authentication of documents
9 between parties, so the Prosecution and the Defence. As there are -- as
10 there is correspondence in that respect I would like to hand that over and
11 to admit as an exhibit, as we will rely upon these agreed facts and
12 authenticated documents during our submissions, thank you.
13 JUDGE AGIUS: Yes. I thank you. I expect you to stand up either
14 of you.
15 MR. JONES: If we could just check that correspondence before it's
16 tendered because obviously we had correspondence and we've reached a final
17 position and so whatever our final position is -- we don't seek to move
18 away from that but if the earlier correspondence gives any other
19 impression then that's something we would like to --
20 JUDGE AGIUS: Mr. Jones, I'm taken by surprise probably more than
21 you are on this. I mean, my own recollection of correspondence on agreed
22 facts goes back to the very early -- the pre-trial -- the end of the
23 pre-trial stage, during the Pre-Trial Conference, and the very early
24 stages of the trial and on one or two occasions, the question was brought
25 up as to what had been exchanged by way of correspondence. Has there been
1 a -- anything else apart from that?
2 MR. WUBBEN: Yes, Your Honour.
3 JUDGE AGIUS: Let Mr. Jones finish first.
4 MR. JONES: If I recall the final position is very clear because
5 in our pre-trial brief we even referred to the fact that certain facts had
6 been agreed and we referred to the document and it's a very clearly set
7 out documents where we simply agreed certain facts and didn't others.
8 JUDGE AGIUS: And you filed correspondence, either you or the
9 Prosecution. I wouldn't remember who.
10 MR. JONES: I'm not sure.
11 MR. WUBBEN: If I may, Your Honour, it's in the exhibits, the
12 65 ter list.
13 JUDGE AGIUS: Yes, yes, I remember going through it. I remember
14 going through it and marking other areas where I was surprised that no
15 agreement had been reached.
16 MR. JONES: Yes, as long as it's our final position which is being
17 relied on. I wouldn't want the Prosecution to seek to invoke earlier
18 correspondence when it was still a question of negotiations or
19 correspondence back and forth. There is a clear final position and our
20 only position is what our final position was. So I don't actually see the
21 need for earlier correspondence to be exhibited.
22 JUDGE AGIUS: We'll see that. We will look into it because
23 obviously we have been taken by surprise, the three of us. We were not
24 expecting this.
25 Yes, Mr. Wubben.
1 MR. WUBBEN: It's a matter of clarity, Your Honour. It's not a
2 matter of pending negotiations because it was an offer by the Prosecution,
3 it was a clear offer, referring to, and we got a clear answer refusing in
4 part and admitting also in part that -- that admitting in part we will
5 rely upon.
6 JUDGE AGIUS: Okay. And the rest of the documentation of course
7 is being, that you mentioned, which we have not seen is being also
8 admitted with the usual caveat, we haven't seen it, we need to have a look
9 at it, and I noticed that you used the word "draft" so your position? And
10 as far as all this documentation is concerned is of course reserved. We
11 don't need to reserve our position because we don't need to have a
12 position on this. But obviously, if we see that there is need for
13 clarification, we'll summon you back into the courtroom and seek any
14 clarifications that might become necessary. In the meantime you will be
15 interested to know that for the purpose of the Rule 98 bis exercise, we
16 have practically gone through all the documentation that we had. Of
17 course there were some videos, for example, that we could see but we
18 couldn't follow because we did not have any translation. I'm glad that we
19 have what you refer to as translation or whatever, whatever you call it.
20 All right. So we'll take that up if necessary in due course.
21 Anything else?
22 The witness, please. The witness is employed in the Office of the
24 MR. WUBBEN: Yes, Your Honour. And Ms. Joanne Richardson will
25 take the lead.
1 JUDGE AGIUS: All right. Okay. Is he going to testify only in
2 relation to this document that he recovered from --
3 MS. RICHARDSON: Indeed, Your Honour, that is the scope of his
4 testimony today.
5 JUDGE AGIUS: Stick to that only Ms. Richardson so we get it over
6 and done with as quickly as possible.
7 MS. RICHARDSON: Thank you, Your Honour. That was my intention.
8 JUDGE AGIUS: We have a lot of business to transact today, and the
9 three Judges, including part of it with you. So ...
10 [The witness entered court]
11 JUDGE AGIUS: Good morning to you, sir.
12 THE WITNESS: Good morning, Your Honour.
13 JUDGE AGIUS: And welcome to this Tribunal where you work in any
14 case, but welcome to the courtroom. The Prosecution have asked for your
15 testimony, and you will soon be testifying. You know the -- what our
16 procedure is. Before you start your testimony, you need to enter a solemn
17 declaration that you will be speaking the truth, the whole truth and
18 nothing but the truth. So please go ahead, make that solemn declaration,
19 and then we can proceed with your testimony.
20 THE WITNESS: I solemnly declare that I will speak the truth, the
21 whole truth, and nothing but the truth.
22 WITNESS: GAMINI WIJEYESINGHE.
23 JUDGE AGIUS: I thank you. Please take a seat. Ms. Richardson.
24 MS. RICHARDSON: Thank you, Your Honour.
25 Examined by Ms. Richardson:
1 MS. RICHARDSON:
2 Q. Good morning, Mr. Wijeyesinghe. Please state your full name for
3 the record?
4 A. Gamini Wijeyesinghe, Your Honour.
5 Q. Mr. Wijeyesinghe, please confirm the following information with
6 regards to your professional -- your profession. You are presently an
7 investigator with the Office of the Prosecutor and you've been an
8 investigator here since 1995?
9 A. Yes, Your Honour.
10 Q. And prior to joining the Office of the Prosecutor, you were an
11 investigator in Sri Lanka?
12 A. Yes, Your Honour.
13 Q. And you worked in the CID department?
14 A. Yeah, the criminal investigation department of Sri Lanka.
15 Q. And you're one of the investigators who conducted an investigation
16 into the events of Srebrenica which occurred between 1992 and 1995?
17 A. Yes, Your Honour.
18 THE INTERPRETER: The interpreters would like to remind all the
19 parties to pause between question and answer. Thank you.
20 JUDGE AGIUS: Ms. Richardson and Mr. Wijeyesinghe, you heard what
21 the interpreters said.
22 THE WITNESS: Yes, I did, Your Honour.
23 JUDGE AGIUS: You need to leave a pause between question and
25 MS. RICHARDSON:
1 Q. Mr. Wijeyesinghe, did you interview Nikola Popovic in connection
2 with the investigation?
3 A. Yes, Your Honour. I interviewed Nikola Popovic with regard to the
5 Q. And could you just specifically state what aspects of the
6 investigation did you speak with Mr. Popovic?
7 A. This was with regard to the attack on the village of Kravica,
8 committed on the 7th January 1992 -- 1993, and with regard to the identity
9 of the dead body of the father of this witness, Nikola Popovic.
10 Q. Thank you. Did there come a time that you met with Mr. Popovic?
11 Could you tell us the date and when that meeting -- and where that meeting
13 A. Your Honour, on the 3rd July 2004, I met witness Nikola Popovic in
14 Bratunac and had an interview with him.
15 Q. Mr. Wijeyesinghe, I see that you're -- you may be glancing at a
16 document. Could you tell Your Honours what is it that is in front of you
17 that you're periodically glancing at?
18 A. That is the statement that I recorded of Witness Nikola Popovic,
19 Your Honour.
20 Q. And are you referring or glancing at this document to refresh your
21 memory with respect to my questions?
22 A. Yes, Your Honour, when necessary.
23 Q. Did you --
24 JUDGE AGIUS: Do you want to see it, Mr. Jones or not.
25 MR. JONES: That's fine if it's the one of -- in fact, perhaps we
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 could just check that it matches the one which we have.
2 JUDGE AGIUS: Yes, usher, please. I take it that's the interview
3 which goes back to the 3rd of July 2004. I mean, I take the witness's
4 word but I can't expect the Defence to do the same, so ...
5 MS. RICHARDSON:
6 Q. With regards to that meeting that occurred on the 3rd of July
7 2004, did you take a statement from Mr. Popovic?
8 A. Yes, Your Honour.
9 Q. And did you receive any documents from Mr. Popovic?
10 A. Yes, Your Honour. I received a copy of a document. I would call
11 it a diary, which was handed over to me by Witness Nikola Popovic during
12 this interview.
13 Q. Thank you. At this time, Your Honour, I would like to have the
14 witness shown Prosecution Exhibit P458.
15 A. This is the English translation of document I received,
16 Your Honour.
17 JUDGE AGIUS: Is that what you need him to see.
18 MS. RICHARDSON: Your Honour, I do need Mr. Wijeyesinghe to see
19 the B/C/S version of the document.
20 JUDGE AGIUS: Of course.
21 THE WITNESS: [Interpretation] Yes, Your Honour, this is the
22 document I received from --
23 JUDGE AGIUS: Let's put it on the ELMO for a while, please. Yes.
24 MS. RICHARDSON:
25 Q. Did Mr. Popovic tell you where he received this document?
1 A. Yes, Your Honour. He stated that he received it from his uncle,
2 and that he received it the day prior to his meeting me.
3 Q. And if you could look at this document as presently on the ELMO,
4 could you tell Your Honours whether or not you numbered the pages?
5 A. Yes, Your Honour, I numbered the sheets from 1 to 49, of the
6 document I received here.
7 Q. And did either you or Mr. Popovic sign this document?
8 A. Yes, Your Honour. Mr. Popovic signed on the last page of the
9 document, and dated it here.
10 Q. Did you make any arrangement with respect to the original of that
12 A. I, in fact, discussed with the witness with regard to the original
13 of this document, Your Honour, and I requested him that he could find the
14 original of this document for me, and he undertook to do that here.
15 Q. Perhaps you can show Your Honours exactly where on the copy of
16 this document that Mr. Popovic signed?
17 A. That's on page 49, Your Honour.
18 Q. If you --
19 A. Exactly on page 50.
20 Q. Thank you. This is now on the ELMO. Could you confirm that this
21 is where Mr. Nikola Popovic signed the document?
22 A. Yes, Your Honour.
23 Q. Did there come a time that you returned to The Hague with this
24 document? Could you tell Your Honours what was done with it?
25 A. Yes, when I returned to The Hague, I adopted the normal procedure
1 of receiving any evidence, and entered an evidence submission form, and
2 handed it over to the -- including the document and the statement, to the
3 evidence unit of the OTP, Your Honour.
4 Q. Did there come a time that you contacted -- that's all, Madam
5 Usher, with respect to this document, thank you.
6 Did there come a time that Mr. Popovic contacted you regarding the
7 original of this document?
8 A. Yes, Your Honour. Somewhere in February 2005, in fact I contacted
9 the witness from time to time, and he informed me that he has got the
10 original of the document he handed over to me earlier.
11 Q. And did you meet with him subsequent to this conversation?
12 A. Yes, I met him on 11th April in Bratunac, Your Honour.
13 Q. Did you receive anything from him at that time?
14 A. Yeah. I received the original -- original diary of -- from this
15 witness on that date, Your Honour.
16 JUDGE AGIUS: What he claimed to be the original.
17 THE WITNESS: Yes, Your Honour.
18 MS. RICHARDSON: Your Honour, at this time I would like to have
19 this diary shown to the witness.
20 THE WITNESS: This is the diary I received from him, Your Honour.
21 MS. RICHARDSON:
22 Q. Could you indicate for the record what is the date of the diary on
23 the front portion?
24 A. It's a diary of 1985, yes, Your Honour. It's a diary of 1985 and
25 I paged this document from --
1 Q. When you say page, do you mean numbered?
2 A. I numbered the pages - sorry - of this document from number 1 to
3 8, Your Honour.
4 Q. So you numbered each page from the -- from -- beginning from the
5 first page?
6 A. Yes, Your Honour, yeah.
7 Q. I'm sorry, the record -- Your Honour, I just need to --
8 Mr. Wijeyesinghe, did you say you numbered the document 1-2-8 or 1 to?
9 A. 128, Your Honour.
10 Q. So 128?
11 A. 128, Your Honour.
12 Q. I think -- all right. Thank you. I think the record does
13 accurately now reflect the number 128.
14 JUDGE AGIUS: Yes. What I need the witness to explain to me or to
15 us basically is this: I noticed that the document, Exhibit 458, which is
16 allegedly according to you at least a photocopy of this diary, on each
17 page shows two pages, supposedly of the original, and there are 49 pages.
18 If you multiply 49 by 2, you get 98.
19 MS. RICHARDSON: Indeed, Your Honour, we are getting to the
20 numbering system that he used. I can ask him.
21 JUDGE AGIUS: While he's telling us now that the original had 128
23 MS. RICHARDSON: Yes.
24 JUDGE AGIUS: So I need an explanation how 128 pages ended up in
25 49 pages.
1 MS. RICHARDSON: Indeed, Your Honour, that was my next question.
2 Q. Mr. Wijeyesinghe, you heard Your Honour's question. Could you
3 explain to Your Honours what the type of numbering system you use,
4 explaining how it was that the copy you numbered amounted to 49 pages and
5 the original that is before you now is 129 -- 28 pages.
6 A. Yes, Your Honour. Now during the first statement in July 2004,
7 when he handed over the copy to me, I numbered the sheets. What I mean by
8 the sheets is that it's on A-4 sheets he had copied it, therefore I
9 numbered it each two pages as one. So it's the number of sheets. So
10 there were 49, almost 50 sheets in that. But the original I received was
11 a diary of 1985 and from page 1 to --
12 Q. Mr. Wijeyesinghe, could I perhaps suggest you look at the original
14 THE INTERPRETER: Microphone, please. Microphone.
15 MS. RICHARDSON:
16 Q. May I suggest that you look at the original that's in front of you
17 and perhaps that could assist us?
18 A. Yes. Now the original diary I numbered from the first page
19 starting from the -- from page 1, page by page, up to 128, and in fact the
20 copy I received prior to this from the witness did not have from pages up
21 to 1 to 30 and it started from page 31 of the original diary. So the
22 witness has copied the copy that the witness handed over to me in July
23 2004, was starting from page 31 of the original, Your Honour.
24 JUDGE AGIUS: So basically you're telling us that looking at the
25 so-called original now, we have an extra 30 pages that we did not have
2 THE WITNESS: Yes, Your Honour.
3 JUDGE AGIUS: All right.
4 MS. RICHARDSON:
5 Q. And is there -- with respect to those 30 pages, could you tell us
6 if there are any handwriting contained in those 30 pages or are they
7 blank? Or is anything else that's contained in those 30 pages?
8 A. No, Your Honour. In the -- only on page 5 there are for the month
9 of May, there is an entry marked the 19th and on July there is a --
10 another entry.
11 Q. Is there a calendar?
12 JUDGE AGIUS: Ms. Richardson, I don't like working like this. Do
13 you have photocopies of this document?
14 MS. RICHARDSON: Your Honour, unfortunately we did not make
15 copies. I apologise.
16 JUDGE AGIUS: But how can you expect us to follow or to be able to
17 follow if we don't have a photocopy of this document which would enable us
18 to look at it and ask -- plus this opens a very important matter. At the
19 end of your case, we are now presented with 30 new pages from a diary
20 which I take it the Defence has never seen.
21 MS. RICHARDSON: Your Honour, in fact the Defence did inspect the
22 diary, I believe sometime in April, and I do apologise for not having
23 copies for Your Honour to -- Your Honours and everyone else in the
24 courtroom to review as this witness is testifying.
25 JUDGE AGIUS: But the thing is this: Don't you realise that for
1 us, for example, if we are going -- all right. Let's see, because they
2 may not be important.
3 MS. RICHARDSON: Indeed, Your Honour.
4 JUDGE AGIUS: Page 1, this is not important, this is not
5 important, this is not important, this is not important, this is not
6 important. This is not important. This is not important. These are the
7 postcode -- the telephone numbers of the various villages. This is not
8 important, 23. This is not important. There is another, nothing. This
9 is not important. This is not important, and we start on page 31. So we
10 seem to be okay. All right. We seem to be okay.
11 JUDGE ESER: But he said something with regard to May or July.
12 JUDGE AGIUS: We'll see. But at least we know -- at least we know
13 that he had 31, it started from 31, and then we see -- let me have a look
14 at what we have here, 458, yes.
15 All right. So for the record, because this is why I said we
16 need -- had you given us this beforehand, or at least beginning of the
17 sitting, we would have had a clearer picture.
18 MS. RICHARDSON: Indeed, Your Honour. I do apologise.
19 JUDGE AGIUS: No, let's start from here. Indeed, it can be
20 established without any doubt that the first page of existing Prosecution
21 Exhibit P458 is what appears to be marked as page 31 in the document that
22 the witness now alleges to have received from Nikola Popovic, which means
23 that there are a number of pages that precede page 31. We have been shown
24 a number of pages starting from page 4, allegedly, of the -- out of these
25 pages, on page 5, which is the calendar for 1986, there are some dates
1 which are encircled, namely the 19th of May, the 4th of August, the 21st
2 of July, and the 15th of October. There are some dates which are
3 cancelled, namely the 1st, 2nd and 3rd of August and the 21st, 22d, 23rd,
4 24th, 25th, 26th, 27th, 28th, 29th, 30th, and 31st of July, and the --
5 yes, there are some words which I will like the usher to put this on the
6 ELMO, please, and we need to try and focus on where there are the words
7 and try to zoom in as much as we can so that if the -- anyone can
8 understand what's written, we will put it on the record. Thank you for
9 your help, Madam Usher.
10 Yes, let's start with the first one. On top of August, on top of
11 August, can you -- further down, further down, no, further down. That's
12 further up. Further down. Further down. You're putting it further up.
13 May, all right? Now, you see below that circle around 19, there is --
14 there are some words. Can anyone from the interpreters read those words
15 and translate them for us, please? Zvornik?
16 THE INTERPRETER: Left for Zvornik.
17 JUDGE AGIUS: Left for Zvornik, okay. And this is in May. We go
18 to July. And there is the word what looks to be [B/C/S spoken] and 11
19 whatever that could be. If anyone can read that and translate that to us,
21 THE INTERPRETER: Vacation, 11 days.
22 JUDGE AGIUS: And then in September, at the bottom of the
23 September, we have [B/C/S spoken].
24 THE INTERPRETER: The first payment for the atlas.
25 JUDGE AGIUS: For the atlas.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 THE INTERPRETER: First instalment.
2 JUDGE AGIUS: Then in October?
3 THE INTERPRETER: Alma graduated.
4 JUDGE AGIUS: All right. Okay. So can I have that page back,
5 Madam Usher, please, and thank you so much for your assistance. I will
6 just go through these first pages. On page 6 and on page 7, there is
7 nothing that can be relevant. We just have holiday feast and
8 commemoration days. Then the following pages, 8 and 9, followed by 10 and
9 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, we have various
10 telephone codes and number references. They are all in printed form.
11 On page 24, there is some information about the size of papers,
12 the measurements of papers, and 25 to 27 is an empty telephone book, which
13 goes right through and inclusive of page 30. On page 31, which has the
14 ERN number 02652762, we have the first page of the alleged diary, which
15 corresponds to the first page of Exhibit P458, except that the first page
16 of Exhibit 458 carries the ERN number 03593124. So that I have tried to
17 complete and integrate the reference.
18 MS. RICHARDSON: Very much appreciated, Your Honour.
19 JUDGE AGIUS: All right. But I was very much afraid that the
20 first 30 pages contained some information that would practically entitle
21 the Defence to bring forward witnesses and put questions so.
22 MS. RICHARDSON: Yes, Your Honour, the Defence had an opportunity
23 to inspect the original quite a while ago and we do appreciate
24 Your Honour's assistance in putting it on the records.
25 JUDGE AGIUS: I am happy that it was a false alarm.
1 MS. RICHARDSON: Thank you.
2 Q. Mr. Wijeyesinghe, did Mr. Popovic tell you where he got this
4 A. Yes, Your Honour. He told me that he got it from his uncle,
5 Radovan Popovic, who lives in Milici.
6 Q. As you're looking at the original diary other than what Your
7 Honours have put on the record with respect to the pages, the numbering
8 system, is there any other differences with respect to the copy you
9 received in July of 2004 and the diary that you received in 2005, in April
10 of 2005?
11 A. It's the identical thing, Your Honour, other than up to page 1 to
13 Q. When you return to The Hague, what if anything did you do with the
15 A. I adopted the same procedure, Your Honour. Entering it in the --
16 in an evidence submission form along with the statement that he gave me
17 and handed it over to the evidence unit of the OTP.
18 JUDGE AGIUS: What's going to happen to this diary?
19 MS. RICHARDSON: Your Honour, well, we can do one of two things,
20 either return it to the evidence unit or at this point we can tender it.
21 JUDGE AGIUS: Does the witness -- has the witness expressed his
22 desire to have it back or ...
23 THE WITNESS: No, Your Honour, he didn't.
24 JUDGE AGIUS: He didn't. So we can have it. We'll reserve his
25 position for later. So it would be tendered for the time being, but his
1 position will be reserved.
2 MS. RICHARDSON: If we could have a P number, Your Honour, and we
3 appreciate your inquiry about returning it to the witness.
4 JUDGE AGIUS: Usually I would have it tendered animo
5 returandi [phoen], reserving the right of -- because the witness or
6 Popovic, it's not his, so he has made it available. He supposedly received
7 it from his uncle and he has made it available to the witness but his
8 uncle may express his right to have it back.
9 MS. RICHARDSON: Indeed, Your Honour.
10 JUDGE AGIUS: I don't know whether he gave his consent to have it
11 released to the Tribunal for good. So this is being tendered and
12 received, animo ritorandi, animo ritorandi.
13 MS. RICHARDSON: Thank you, Your Honour. I don't have any further
15 JUDGE AGIUS: And it's being marked as Defence -- Prosecution
16 Exhibit, sorry not Defence Exhibit, Prosecution Exhibit number?
17 THE REGISTRAR: 561.
18 JUDGE AGIUS: 561.
19 MS. RICHARDSON: Your Honour, a matter -- I do apologise. A
20 matter has just been brought to my attention by my colleague, Mrs.
21 Sellers. We in fact may need get -- may need to have access to this diary
22 at some later point in time before the end of the case. So if perhaps it
23 is tendered, we may need to make arrangements with the Registrar's office
24 to borrow it at some point and then return it prior to the end of the
1 JUDGE AGIUS: What I suggest is you should have made photocopies
2 of it in the first place and had it available today, at least for us,
3 because it's one of the few documents that are being tendered and we are
4 not receiving copies of. So what I suggest is that it is copied straight
5 away, today's sitting is not going to last long. It's copied under the
6 direction of the Registrar. Now it's in the records of the case, it
7 belongs to the Court. And I don't --
8 MS. RICHARDSON: It's not a problem. We can have it copied and
9 returned immediately.
10 JUDGE AGIUS: Why complicate matters, Ms. Richardson?
11 MS. RICHARDSON: My case manager is informing me we do have copies
12 so I think that ends that point.
13 JUDGE AGIUS: That's even easier. That's even easier.
14 Yes, I pass you on to -- who is dealing with ... Mr. Jones?
15 MR. JONES: I am, Your Honour, yes.
16 JUDGE AGIUS: Mr. Jones is co-counsel defending Mr. Oric.
17 Cross-examined by Mr. Jones:
18 MR. JONES: Yes.
19 Q. It's Mr. Wijeyesinghe; is that correct?
20 A. Right, Your Honour.
21 Q. Now, you've told us how you obtained this diary from Nikola
22 Popovic and he told you how he had obtained it from his uncle, I think
23 it's Radovan Popovic. Did he not tell you that in fact his uncle
24 apparently received it from some people in a cafe and they in turn had
25 apparently found it in a meadow?
1 A. Your Honour, what the witness Nikola Popovic told me was that he
2 received from his uncle, the document from his uncle, and that beyond
3 that, to my recollection, he didn't tell me anything.
4 Q. And you didn't ask him?
5 A. I did ask him, and, yes, now I remember, Your Honour, that he said
6 that he received -- his uncle received it from a man in Milici and he
7 didn't know, the witness did not know the details of that man other than
8 his uncle.
9 Q. Okay. Thank you. Now, this diary, if we can call it that for
10 these purposes, I'm sure you are aware was shown to a Mr. Avdo Huseinovic
11 and asked whether it was prepared or written or signed by him?
12 MS. RICHARDSON: Objection, Your Honour.
13 JUDGE AGIUS: Why?
14 MS. RICHARDSON: This is beyond -- this is -- this question is
15 beyond the scope of the examination. This witness has testified to the
16 chain of custody of the diary itself and I think any other question with
17 respect to who else was shown the diary is outside the scope.
18 JUDGE AGIUS: I don't agree. In the least, Ms. Richardson. It
19 goes -- it's a perfectly legitimate question which can shed light on how
20 much probative value we can give to the document itself.
21 MR. JONES: Yes.
22 JUDGE AGIUS: Go ahead.
23 MS. RICHARDSON: If I could then just have perhaps some
24 clarification --
25 JUDGE AGIUS: Later. You have a right to re-examine --
1 MS. RICHARDSON: From the Defence about what was shown. He says
2 the diary --
3 JUDGE AGIUS: We will see. I don't know what the question is
4 going to be but obviously, from the looks of it, on a prima facie basis at
5 least it looks to be a very pertinent and legitimate question.
6 Yes, let's proceed and then we'll see. If it's not a legitimate
7 one I will stop you myself.
8 MR. JONES: Yes, thank you.
9 Q. Do you work with Finn Tollefsen?
10 A. Yes, Your Honour.
11 JUDGE AGIUS: What's his name.
12 MR. JONES: Finn Tollefsen. F-i-n-n, T-o-l-l-e-f-s-e-n.
13 JUDGE AGIUS: All right.
14 MR. JONES: And we'd like to pass up a new document, a new
15 exhibit, which is statement of Avdo Huseinovic dated 12th of May 2005. We
16 have copies for everyone.
17 Q. Please have a look at this.
18 JUDGE AGIUS: One moment, Mr. Jones. I need to check something.
19 Yes. I notice, Mr. Jones, that when you put the question about Huseinovic
20 to the witness and Ms. Richardson objected and I interjected, and then
21 Ms. Richardson interjected and she was stopped and you proceeded, you were
22 authorised to proceed. You never put the question again to the witness
23 and it hasn't been answered.
24 MR. JONES: I apologise. I'll put it again.
25 JUDGE AGIUS: Yes, please.
1 MR. JONES:
2 Q. Mr. Wijeyesinghe, are you aware that this diary was shown to
3 Mr. Avdo Huseinovic?
4 A. Your Honour, due to time constraints, I sent a copy of this diary,
5 of the original diary, to Mr. Tollefsen who was an investigator at the
6 Sarajevo field office and in fact I spoke to Avdo Huseinovic and arranged
7 him to come to the Sarajevo field office and have an interview with
8 Mr. Finn Tollefsen.
9 Q. And wasn't the reason that he was suspected as being the author of
10 this diary?
11 A. I won't say he is the author of the diary, Your Honour, but based
12 on the entries, the names that were in the diary, I decided it's prudent
13 for me to record the statement of this person whose name appeared, and
14 that was the first investigative step that I took with regard to the
15 authentication of the diary.
16 Q. I'd ask you and all of to us have a look at this brief statement
17 and you'll see that first he was shown one document with the ERN number
18 01837861 to 01837863, in which he noted some mistakes, including his
19 family name. I'm in fact interested in the fourth paragraph. He was
20 shown and the ERN number is 03653761 to 03653859.
21 Your Honour, I think without even an acute sense of hearing we can
22 all hear that noise. I'm hoping it won't -- won't continue for much
24 He was shown that document and quote "asked by investigator
25 Tollefsen whether these documents are familiar to me and whether these
1 documents were written, prepared, and signed by me," and he concludes with
2 this statement, "I cannot give an absolute confirmation that these
3 documents are my notes without seeing the original documents."
4 So firstly, are you aware of that, that the --
5 JUDGE AGIUS: It's annoying me, Mr. Jones. Usher or Registrar, I
6 don't know who is responsible. Yes, I thank you, officer, I appreciate
7 it. At least they stop until we finish. We are not going to take long.
8 I apologise to you, Mr. Jones.
9 MR. JONES: That's quite all right, Your Honour. I think it's
10 better if it steps.
11 JUDGE AGIUS: I shouldn't have interrupted you like the way I did.
12 MR. JONES: That's quite all right.
13 Q. So, Mr. Wijeyesinghe, are you aware that the purported or a
14 possible author of some of these diary entries could not confirm that he
15 was in fact the author?
16 A. From what I read in the statement and also from my -- what I heard
17 from the investigator who recorded the statement, Your Honour, I got into
18 the conclusion that he was not able to recognise the document from the
19 copy but he was keen to see the original.
20 Q. He was not shown the original?
21 A. He was not shown the original as yet, Your Honour.
22 Q. Sorry, I'm just waiting for the transcript to show up. To this
23 day he has not been shown the original, correct?
24 A. No, Your Honour, not yet.
25 Q. Just to clarify this, and I think it has been clarified,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 hopefully, but Mr. Huseinovic refers to document 03653761 to 03653859, a
2 98-page document, P458 is 03593124 to 03593173. So that's 49 pages and I
3 think we've worked out that that's two times -- that 98 is twice times
4 that number. But it appears therefore that Mr. Huseinovic even in the
5 copy he was shown was not shown the first -- the front page, correct, the
6 one with 1985?
7 A. No, Your Honour.
8 Q. And he did not see the page which we went over earlier, which is
9 on a -- went through --
10 JUDGE AGIUS: Can I have, usher, the exhibit, please?
11 MR. JONES:
12 Q. He did not see -- the ERN number is 03653736 or page 5, which as
13 we've seen refers to a vacation in July, refers to Alma graduating, and
14 other features of a personal nature which might have helped him with the
15 task of saying whether or not that was his diary, correct?
16 A. Yes, Your Honour.
17 Q. Now, if you have -- do you have the original? If not, could the
18 witness please have the original in front of him, the actual physical copy
19 of the diary, not the photocopy?
20 JUDGE AGIUS: Yes.
21 MR. JONES: Sorry, when Your Honour is finished with it.
22 JUDGE AGIUS: Yes, I was just looking at some other matters but
23 this is Nikola Popovic, the date, and this is the witness, yeah. This is
24 the witness. And this is the last page.
25 All right. You can hand it to the -- to the Defence.
1 MR. JONES: It's actually not for the Defence, for the witness.
2 And perhaps he could put it on the ELMO and I just wants to have the
3 confirmation of certain features which appear. It can just be placed flat
4 on the ELMO and then the witness can work from that original.
5 Q. If you would mind, Mr. Wijeyesinghe, turning to your right and
6 dealing with that document, thank you. Firstly, would you agree that
7 there are pages which are -- appear to have been ripped out of this diary?
8 And I'll direct you to page 3859, or the last four numbers, 3859. In the
9 original, if you wouldn't mind. If you go to 03653859?
10 A. Yes, I can see that, Your Honour.
11 Q. You can see there are pages which have been ripped out?
12 A. Yes. I see some, at least one page ripped out.
13 Q. Okay. Can you turn to page 3761, please? And there it's more a
14 question of seven or eight pages which have been torn out, correct?
15 A. I can't count it, Your Honour, but it appears that there are some
16 pages taken off.
17 Q. Would you agree, and I'll direct you to certain pages if
18 necessary, that different inks are used throughout this diary, red inks,
19 blue inks, and I can refer you to, first, page 3806?
20 JUDGE AGIUS: I think I don't need to -- you don't need to ask the
21 witness that question. We can see it ourselves. And then you make
23 MR. JONES: Yes, yes.
24 JUDGE AGIUS: For example, if you look at page 5, the entries that
25 I referred to earlier on myself in trying to describe the document, there
1 is some markings in red, some words in red, some in blue, some in black,
2 so we can see it.
3 MR. JONES: That's fine then. That can be taken. I would also,
4 perhaps again this exercise isn't necessary, but ask to you confirm that
5 there are different types of handwriting, for example, on page 3790, and
6 again if Your Honour considers this isn't necessary.
7 JUDGE AGIUS: I don't think it is. Leave it as a submission. Not
8 as a question.
9 MR. JONES: All right, Your Honour, thank you.
10 JUDGE AGIUS: He is not -- I mean, can show you different hand
11 writings of myself depending on the time of the day, the month, and the
13 MR. JONES: Yes, your honour.
14 JUDGE AGIUS: And the pressure of work.
15 MR. JONES: And we heard from Dr. Fagel on those matters.
16 MS. RICHARDSON: Your Honour, that was my objection.
17 MR. JONES: Yes.
18 Q. Do you agree, Mr. Wijeyesinghe, that there are a lot of important
19 features which can be only seen in the original, such as pages torn out,
20 the different colour inks are used, which are important for authenticating
21 the document, and which would have helped Mr. Huseinovic identify or not
22 identify this document?
23 A. Yes, Your Honour. I agree with that but due to time constraints,
24 there was no -- I mean, way that I could possibly go there immediately and
25 show the original to him.
1 Q. There was no reason to not show him the original. It wasn't an
2 exhibit until today. In fact, isn't it right that Mr. Huseinovic was
3 interviewed on the 12th of May 2005, so --
4 A. Yes, Your Honour.
5 Q. Yes.
6 JUDGE AGIUS: Thank you, Mr. Jones. Someone that suppose -- I'm
7 reading from this interview, so I wasn't there listening to what
8 Mr. Huseinovic had to say, but if someone tells you, at least he's
9 recorded as having said, other documents are a kind of reviews of minor
10 incidents in the area, activities and tasks conducted by military police
11 regarding implementation of peace among people at the time, match to the
12 contents of the said documents but I cannot give an absolute confirmation
13 that these documents are my notes without seeing the original documents.
14 MR. JONES: There might be a certain --
15 JUDGE AGIUS: If someone speaks in those terms, what do you
16 understand? Do you exclude -- do you exclude the possibility or the
17 probability that that person is the author of the diary or are you being
18 given a clear indication that he wouldn't like to answer that question and
19 he wants to see the original before giving you a clear-cut answer.
20 MR. JONES: I wouldn't want to go behind the words of the witness
21 himself, which is that he can't confirm. It was really -- the point is
22 this, Your Honour, that the contents may match certain events but it was
23 really the importance, if this is so important, of having the witness
24 confirm the original by him being shown the original and it wasn't done.
25 JUDGE AGIUS: Yes, exactly. I would have expected you to have
1 shown him the original straight away. Giving you that kind of lot to you
2 because it seems that the investigator was Mr. Finn Tollefsen. But
3 speaking in those terms, next obvious stage would have been okay, he wants
4 to see the original? Here it is. After all, you were showing him the
5 photocopies of the original.
6 MR. JONES: Yes, thank you, no further questions.
7 JUDGE AGIUS: Yes. Is there re-examination, Ms. Richardson?
8 MS. RICHARDSON: Thank you, Your Honour, just briefly.
9 Re-examined by Ms. Richardson:
10 Q. Mr. Wijeyesinghe, if you could just turn to where Mr. Jones asked
11 you to look at the pages that were ripped out in the original document?
12 JUDGE AGIUS: Yes, one moment. Are you tendering this or not?
13 MR. JONES: Yes, my apologies.
14 JUDGE AGIUS: Yes, this will become dense Exhibit?
15 THE REGISTRAR: 302.
16 JUDGE AGIUS: 302. Thank you.
17 Sorry, Ms. Richardson.
18 MS. RICHARDSON:
19 Q. Mr. Wijeyesinghe if you could just turn to where Mr. Jones pointed
20 or directed you to in the diary where pages were ripped out, the first
21 portion, if you could go to where it was initially pointed out in the
22 middle of the diary. Or find it yourself, wherever it may be.
23 A. Yes, that's page 30 and 31, Your Honour.
24 Q. And is there any other --
25 A. Between the pages 30 and 31.
1 Q. Is there any other place in the diary where pages are missing?
2 MR. JONES: It's just that the witness did confirm two places
3 already and I can give the page numbers again if it's easier.
4 JUDGE AGIUS: No. We have them on the record.
5 MR. JONES: Yes, yes, yes.
6 THE WITNESS: Yes, Your Honour, I can see between pages 46 and 47.
7 MS. RICHARDSON:
8 Q. Now with respect to pages 46 and 47, if you look at the entry that
9 has the date on the portion of the page, the top left and the top right,
10 is there any break in the sequence of the date?
11 A. No, Your Honour, it's from the 5th December continuing on to 6th
12 December so there is a proper continuation of the entries here.
13 Q. Now, going back to page 31 --
14 JUDGE AGIUS: Again that's something that we decide not the
15 witness, Ms. Richardson.
16 MS. RICHARDSON: I'm just putting it on the record based on the
17 witness's examination of the diary since it was brought out in
19 MR. JONES: Also there is no date on page 46.
20 JUDGE AGIUS: But we decide that. I mean, we have got eyes like
21 you have.
22 MS. RICHARDSON: Thank you. I'll move on to my next question.
23 Q. Now, did the investigator also tell you whether or not
24 Mr. Huseinovic had indicated that he was a Defence witness and had spoken
25 to the Defence?
1 A. Yes, Your Honour. He said that in his statement, too.
2 Q. And with respect to showing Mr. Huseinovic this diary, is that an
3 ongoing matter? Has the investigation with respect to this aspect of
4 whether or not he was the author, is that an ongoing investigation that
5 you're in charge of?
6 A. Yes, Your Honour.
7 MS. RICHARDSON: Thank you.
8 JUDGE AGIUS: All right. Do you have questions?
9 We don't have any questions for you, Mr. Wijeyesinghe. I thank
10 you so much for having come up or down to give evidence in this case. You
11 will now be escorted out of the courtroom by Madam Usher. Thank you so
13 THE WITNESS: Thank you.
14 [The witness withdrew]
15 JUDGE AGIUS: What I suggest we do is the following. This is
16 where you rest your case, I suppose, so I would expect you to -- the
17 documents? I think we need to give those a number, those documents that
18 you are tendering.
19 MR. WUBBEN: Yes, Your Honour. The Prosecution rests its case,
20 unless you have a request for further information, but with that caveat we
21 rest our case.
22 JUDGE AGIUS: But those documents, we need to give them a number.
23 Do you want the number now or can you have it later, Mr. Jones?
24 MR. JONES: We can have it later.
25 JUDGE AGIUS: What I suggest we do is this: Now, we are going to
1 have a very short meeting, the three of us, in my Chamber. When I say
2 short, it will roughly finish around about half 10. Can I suggest that we
3 then meet in my Chamber, all of us. When I say all of us I say I don't
4 expect you all to come and you choose whether you want to come both of you
5 or one much you, say, shall we meet at 11 in my Chamber?
6 MR. JONES: Yes, that's fine with us.
7 MR. WUBBEN: Yes, Your Honour.
8 JUDGE AGIUS: You will require assistance to be able to come in
9 that area, you are charged with giving assistance to Mr. Jones and
10 Madam Vidovic.
11 All right. So Prosecution rests its case. Tomorrow we will have,
12 we will hear your submissions.
13 MR. JONES: Thursday.
14 JUDGE AGIUS: Not tomorrow, I agree.
15 MR. WUBBEN: It's on Thursday.
16 JUDGE AGIUS: On Thursday we hear your submissions and on Friday
17 we will hear yours. Do expect some questions towards the end of Friday's
18 hearing. I won't probably -- we won't probably be putting any questions
19 to you but we definitely will be putting some questions to you, depending
20 of course on what the submissions will be. All right?
21 MR. WUBBEN: Your Honour, can you please, for our information,
22 clarification, give the extent, the hours to be dealt with by the
23 Prosecution to make the submission, because when there is a reply and some
24 questions by Your Honours --
25 JUDGE AGIUS: We are only talking if you -- if we are not
1 satisfied with certain submissions that might be forthcoming in relation
2 to certain incidents, if you don't deal with those, we'll ask you to
3 clarify what the position is. This is the whole thing. And it should be
4 a clear-cut -- if necessary, we will give you a short, brief interval of
5 time. I don't mean days, a few minutes, to check and then come back to
7 So we'll meet in my Chamber at 11.00. If the meeting that I have
8 with the two Judges on other matters deal -- last a little bit longer than
9 I expect, then obviously -- but I will alert you to that. But keep
10 yourself where you can be reached. All right?
11 MR. JONES: Yes, we'll remain in the building.
12 JUDGE AGIUS: Thank you.
13 --- Whereupon the hearing adjourned at 10.11 a.m.,
14 to be reconvened on Thursday, the 2nd day of June,
15 2005, at 9.00 a.m.