Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7963

1 Thursday, 1 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.23 p.m.

6 JUDGE AGIUS: So, good afternoon to you. Madam Registrar, could

7 you call the case, please.

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

9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

10 JUDGE AGIUS: [Microphone not activated] Same goes for the Defence

11 teams. Prosecution is Mr. McCloskey and Mr. Nicholls. The accused is

12 present -- sorry, the witness is present in the courtroom. There are some

13 preliminary matters that we wish to raise, but we have decided first to go

14 ahead with the testimony of the witness and try to finish it and then we

15 will come to those matters afterwards.

16 All right. Who is going first from the Defence teams? And you

17 have all the time you require.

18 MR. MRKIC: [Interpretation] Thank you.

19 WITNESS: WITNESS PW-104 [Resumed]

20 [Witness answered through interpreter]

21 Cross-examination by Mr. Mrkic:

22 Q. [Interpretation] Good afternoon, sir.

23 JUDGE AGIUS: Before you proceed, witness and Mr. Mrkic, you both

24 speak the same language. There is a tendency, it happens to us when we're

25 speaking English, of course -- yes, in the meantime I am receiving

Page 7964

1 interpretation of myself in French because I was on number 5, but I like

2 to hear the French language.

3 It is important that you allow a short pause between question and

4 answer so as not to frustrate the work of our interpreters, which is

5 already in itself extremely difficult. All right.

6 Mr. Mrkic. Sorry for having interrupted you. Go ahead.

7 MR. MRKIC: [Interpretation] Thank you.

8 Q. Yesterday when you spoke about your education you said that you

9 were an engineer. As far as I can understand your testimony, you didn't

10 graduate from university?

11 A. I graduated from a high technical school.

12 Q. A high technical school, very well. When did you finish that

13 school?

14 A. In 1983.

15 Q. And after that you served in the army?

16 A. Yes.

17 Q. And did you find your first employment straight after that?

18 A. Yes.

19 Q. When was that, when were you first employed?

20 A. In the spring of 1985.

21 Q. So that means that you waited for a year to get your job?

22 A. No, in 1984 I served in the army and in the -- 1985 I found a

23 job.

24 Q. What was your financial standing at the time?

25 A. I was of average financial means. My father was a worker, my

Page 7965

1 mother was a housewife, and at -- an at-home mother.

2 Q. Did you have any siblings?

3 A. Yes.

4 Q. How many?

5 A. Two sisters.

6 Q. Two sisters.

7 JUDGE AGIUS: Mr. Mrkic, use your discretion as you go along as to

8 when we need to go into private session, please.

9 MR. MRKIC: [Interpretation] I believe that most of my

10 cross-examination will require private session, as a matter of fact.

11 Q. Did you change employment quite often?

12 A. As was required every three or four years; relatively often.

13 Q. When did you become politically active?

14 A. In the 90 --

15 JUDGE AGIUS: Yes, Mr. Nicholls.

16 MR. NICHOLLS: Sorry, Your Honour. The Court has rightly raised

17 my attention to it. I would ask, I can't stop it rolling, to redact on

18 page 2, I think, from -- after line 14 to page 3, line 6. As we're

19 going,, I mean, I'm just afraid of the combination being put together.

20 JUDGE AGIUS: For the time being at least we don't see a reason to

21 redact those lines. If there is agreement of course between you and

22 Mr. Mrkic that there will be other questions following, which, when

23 answered, would give greater significance to these few lines, then of

24 course we are -- would be prepared to redact. But we are not in a

25 position -- we are not in Mr. Mrkic's mind, so we don't know. But for the

Page 7966

1 time being I don't think we need to redact those lines.

2 What's your position on that, Mr. Mrkic?

3 MR. MRKIC: [Interpretation] For the time being I don't think this

4 is necessary. However, there will come a time when I will ask to go into

5 private session and that will happen very soon.

6 JUDGE AGIUS: All right.

7 MR. MRKIC: [Interpretation] We can go into private session

8 immediately, as a matter of fact.

9 JUDGE AGIUS: All right. Then let's go into private session and

10 we don't need to redact what we have.

11 [Private session]

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Page 7967











11 Pages 7967-7991 redacted. Private session















Page 7992

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24 [Open session]

25 JUDGE AGIUS: We are in open session. Madam Fauveau.

Page 7993

1 MS. FAUVEAU: [Interpretation] Thank you, Your Honour. Your

2 Honour, I would like to inform you that the Defence of Popovic, Miletic

3 and Gvero won't have any questions for this witness, and the Defence of

4 Nikolic said that they would need 45 minutes, but they will only use up 20

5 minutes. Therefore, we have decided to give our time to the Defence team

6 of accused Beara.

7 JUDGE AGIUS: This is new to me. I mean, you don't decide to give

8 them time. I mean they have the time that we allow them to have. We

9 are -- the fact that there are seven Defence teams doesn't mean that each

10 one can ask for one hour or two hours and then give the one hour or two

11 hours- to one of the other colleagues. That's -- that would be very bad

12 court management, or case management on our part.

13 Yes, Mr. Ostojic.

14 MR. OSTOJIC: Thank you, Mr. President and good afternoon,

15 Your Honours.

16 JUDGE AGIUS: Good afternoon to you.

17 MR. OSTOJIC: In part -- if I could just explain, in part, when we

18 did the estimates several weeks ago and months ago when the witness

19 initially appeared, that amount remained in our estimate. And I

20 personally was the one who was putting the estimates in -- not in all, but

21 in most of the cases. In this one I had recalled that I asked that it be

22 increased from the initial hour to an hour 45, we were working under that

23 presumption. And I believe I conveyed to the court clerk, and I am

24 debating whether it is 100 per cent or not, so -- but that was my

25 recollection of it. And I had asked the other defendants, accused, if

Page 7994

1 they could assist us, just to put the Court at ease that we are not trying

2 to prolong it. We are going directly to the issue here, and we know the

3 Court's ruling prior that we cannot switch off, and, with all due respect,

4 it was -- we're asking if we can do that so that there can be enough time

5 to complete it within a reasonable period of time, and we know we are at

6 your discretion on that issue, so that's why we're asking for it.

7 JUDGE AGIUS: And reasonableness, Mr. Ostojic, should be the

8 beacon, the guiding light for us all. We were informed now before we

9 came in the courtroom that indeed you had asked for an hour 45 minutes.

10 Which means that you haven't exhausted that time because Mr. Mrkic has

11 been cross-examining the witness for a little bit less than an hour and a

12 half. So we suggest that you try to, or he tries to finish the

13 cross-examination within half an hour.

14 MR. OSTOJIC: We did try, Your Honour, but in all honesty, as we

15 try to be every day, it's hard to estimate sometimes the answer, question

16 rapport, and we have indicated that we think we can finish it in an hour.

17 We are not trying to prolong it. We're going right to the heart of the

18 issue. Let's see how it goes, but I am advising the Court to be up-front

19 with you.

20 JUDGE AGIUS: Let's proceed and then we will play it by the ear as

21 we go along.

22 MR. OSTOJIC: Thank you, Mr. President.

23 JUDGE AGIUS: But we will stop Mr. Mrkic if he doesn't go to the

24 point. Our suggestion is that you try and focus on the -- the key issues

25 in the testimony of this witness. Thank you.

Page 7995

1 Mr. Mrkic. Mr. Mrkic, shall we go back to private session?

2 MR. MRKIC: [Interpretation] No, thank you. I don't think it will

3 be necessary.

4 JUDGE AGIUS: Okay. So, now, Witness, we are in open session.

5 Please don't mention any details or names of persons or places that could

6 identify you.

7 MR. MRKIC: [Interpretation] Thank you, Your Honour.

8 Q. I would like to focus on the statements you provided to the

9 Prosecutor's office. My first question is about the meetings with the

10 Office of the Prosecutor. Were you invited to these meetings, when was

11 that, how did these meetings come about.

12 A. I got a telephone call from a -- an MUP employee of the MUP

13 Zvornik and he told me when I was supposed to come to the police station

14 in Zvornik for the meeting.

15 Q. I suppose that he did not tell you what the topic of the interview

16 would be?

17 A. He just told me that I was invited to provide some information.

18 It was just an interview.

19 Q. Were you told that you would appear at that meeting as a

20 witness?

21 A. No, not at the moment.

22 Q. What did you think at that time? Why do you think they were

23 inviting you to that meeting.

24 A. I didn't know anything.

25 Q. Did you suspect that they invited you because of you or because of

Page 7996

1 somebody else?

2 A. Because of somebody else.

3 Q. How did you feel during the interview? Did you have an impression

4 that something was being requested from you, that --

5 A. No.

6 Q. I have read that statement of yours. Could you agree with me if I

7 said that the Prosecutor and his investigator asked you seven times before

8 the break about the same topic, about your contacts with some officers

9 from the Main Staff?

10 A. I'm sure you will find it in the transcript.

11 Q. Do you remember that?

12 A. I do.

13 Q. Do you remember your answers to those questions?

14 A. Yes, I do.

15 Q. What were your answers?

16 A. That I was not allowed to talk about that.

17 Q. I have to correct you there. And if you don't agree with my

18 correction, then we can look at the statement. Every time you said that

19 you did not have any contacts with the officers from the Main Staff, only

20 once you mentioned that you had a meeting with General Mladic. Every

21 other time you your answer was negative. Every other time you said that

22 you didn't have any contacts with the officers from the Main Staff.

23 JUDGE AGIUS: Yes, Mr. Nicholls.

24 MR. NICHOLLS: Could I have some references to what he's talking

25 about in the interview? It doesn't match my recollection. I'm not trying

Page 7997

1 to take up time, I'd just like to know where specifically he's pointing

2 to.

3 JUDGE AGIUS: Fair enough. You have every right to raise this.

4 Mr. Mrkic.

5 MR. MRKIC: [Interpretation] This is the interview that took place

6 on the 7th of April, 2006, pages 12, lines --

7 THE INTERPRETER: If the counsel could slow down.

8 JUDGE AGIUS: Yes. Okay. The interpreters would like you to slow

9 down.

10 MR. MRKIC: [Interpretation] I'll start with the first page. Page

11 12, lines 12 through 14. Page 14, lines 10 through 12. To avoid any

12 confusion, I'm talking about the B/C/S version of this interview. Page

13 14, lines 12 through 15. Again, page 14, lines 28 through 30.

14 Q. And this is your answer to the question about your meeting with

15 General Mladic, in other words when you said that you did have a meeting

16 with General Mladic. Page 16, lines 7 through 9.

17 A. [No interpretation]

18 MR. MRKIC: [Interpretation] If I need to go on, I can do that, but

19 I believe that the witness confirmed what I have just put to him.

20 JUDGE AGIUS: Yes. Exactly. This is what -- what I was going

21 to say. First I was going to ask Mr. Nicholls whether he requires

22 anything else. I think the references are there. Secondly, I would like

23 the witness to repeat his answer, because it never made it to the

24 transcript.

25 THE WITNESS: [Interpretation] And what was the question?

Page 7998

1 MR. MRKIC: [Interpretation]

2 Q. The question was are you aware what your answers were to each and

3 every question that was relative to your contacts with the officers from

4 the Main Staff? I'm paraphrasing those questions, I'm not quoting them.

5 Your answer -- answer was always no, save for one answer when you said

6 that you did have a contact or a meeting with General Mladic. Is that

7 correct?

8 A. Yes.

9 JUDGE AGIUS: Yes, Mr. Nicholls.

10 MR. NICHOLLS: Sorry, could I just clarify a point. Is what my

11 friend is referring to when he said page 12, lines 12 to 14, the question

12 which is on page 14 at line 4, "Okay, except Sreten Milosevic and this

13 Mihajlo Galic, did you know any more officers from the Zvornik Brigade?"

14 And then he says, "I knew the commander and I knew the deputy." Is that

15 one of the questions he's saying was a question about the Main Staff, when

16 he said he didn't know any? I'm just asking, for the record, for the

17 references.

18 JUDGE AGIUS: I think that's a fair question.

19 Mr. Mrkic, since you are referring the witness to the Main Staff

20 in particular, you need to clarify that to make sure.

21 MR. MRKIC: [Interpretation] Page 14, line 11 -- actually, 10. "Do

22 you remember anybody from the Main Staff from those celebrations?" Answer

23 on page 11, "Nobody from the Main Staff came."

24 The same page, line 12, "Did you have any contacts with the

25 officers from the Main Staff?"

Page 7999

1 Line 13, "I remember -- I remember one contact. I was at a

2 session of the Main Staff, General Mladic, Tolimir and Gvero came to that

3 meeting that was attended by me and my 10 associates."

4 On page 14, line 28, "Save for that one meeting did you have any

5 other contacts with anybody else from the Main Staff?"

6 Answer, "Yes, I did have a meeting, just one with General

7 Mladic."

8 Question, page 16, line 7, "After that meeting, did you meet any

9 other officer from the Main Staff?"

10 Answer is in line 9, and it reads, "No."

11 JUDGE AGIUS: I think we have covered them all. So let's go to

12 the question. What's your question to the witness?

13 MR. MRKIC: [Interpretation]

14 (redacted)

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22 JUDGE AGIUS: One moment. Let's go into private session for a

23 short while. And pardon me saying this, but it's my tendency to be always

24 on the cautious side.

25 [Private session]

Page 8000

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19 [Open session]

20 MR. MRKIC: [Interpretation] Actually, I think I would like to go

21 into private session for the next question.

22 JUDGE AGIUS: All right.

23 THE INTERPRETER: Microphone for the presiding judge, please.

24 JUDGE AGIUS: Let's go back to private session. Thank you for --

25 and apologies to you.

Page 8001

1 [Private session]

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Page 8002











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Page 8012

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17 [Open session]

18 MR. MRKIC: [Interpretation]

19 Q. Let me clarify something which concerns yesterday's transcript.

20 In one moment asked by the Prosecutor - if I'm wrong you may correct me -

21 you answered that you were requested assistance to -- for the purpose of

22 taking care of the prisoners. Is that correct?

23 I believe this is a problem with translation, and this is why I

24 wish to rectify and then clarify this. It is page 44, answer begins at

25 line 19, and then goes over to line 1 on page 45.

Page 8013

1 Do you recall saying, since I have the transcript in English, that

2 it went for taking care and when -- is that correct?

3 A. I said that -- that prisoners had to be gotten rid of and he asked

4 me assistance.

5 Q. Assistance in what? Assistance in what did he ask of you?

6 A. In the burial, I think.

7 Q. Do you think, or are you certain?

8 A. I am certain.

9 (redacted)

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18 [Private session]

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Page 8014

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12 [Open session]

13 JUDGE AGIUS: The Trial Chamber appreciates that.

14 The witness should know, we are back in open session.

15 MR. MRKIC: [Interpretation]

16 Q. Could you please describe the person that you spoke with?

17 A. I said that this was a briefing. It was not a dialogue.

18 Q. Well, could you describe that person?

19 A. Tall, camouflage uniform, well-built.

20 Q. Colour of hair, colour of eyes?

21 A. Grey hair, age around 50, 55. That will be it.

22 Q. Could you tell me, please, let me rephrase my question. Do you

23 recall when you sent -- saw Mr. Beara the next time when he was departing

24 for The Hague? Did you express any doubts as to the identity of that

25 person?

Page 8015

1 A. Yes.

2 Q. When you expressed this to the OTP, what was their reaction to

3 that? Did they show you some photographs to identify that person?

4 A. No.

5 Q. This means you've come to a point where you are not certain or

6 maybe you are not 100 per cent sure, however you would like to put it,

7 that you saw this person on TV. This is what I forgot to ask you.

8 A. Yes, I saw it on TV.

9 Q. So you are not 100 per cent sure that that person was the person

10 that you spoke to and --

11 A. I said that the person on TV did not resemble the person who

12 introduced himself as such and who held that briefing at the Zvornik

13 Brigade barracks.

14 Q. Did the Prosecutor show you, although you have also said no, but

15 did you try to identify in any way that person with whom you had spoken?

16 A. They asked me about some details, whether he wore glasses, what he

17 looked like and so on and so forth. I'm sure you will find it in the

18 transcript of my interview. They asked me to describe him.

19 Q. They didn't show you a photo of any kind?

20 A. No, they did not.

21 Q. And now you are saying here as you sit here, that that person whom

22 you saw on TV on the way to The Hague did not resemble the person with

23 whom you had spoken previously?

24 A. Yes.

25 MR. MRKIC: [Interpretation] I have no further questions,

Page 8016

1 Your Honour.

2 JUDGE AGIUS: Thank you, Mr. Mrkic. One moment.

3 Yes, Madam Nikolic.

4 MS. NIKOLIC: [Interpretation] Good afternoon, Your Honours.

5 Cross-examination by Ms. Nikolic:

6 Q. [Interpretation] Good afternoon, sir. I have a few questions

7 about your interview and your testimony today. (Redacted)

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18 JUDGE AGIUS: I think we are back to square one.

19 Yes, Mr. Nicholls. Shall we go into private session?

20 MS. NIKOLIC: [Interpretation] I apologise.

21 JUDGE AGIUS: Okay. All right. So let's -- we can stay in open

22 session. And redact lines 20 -- last part of line 23 on page 52 to lines

23 6 -- 7 of page 53. And if you are going ask him further questions on

24 persons to whom he may have been related, or had contacts with at the time

25 that could expose or will reveal his identity, then we will go into

Page 8017

1 private session.

2 MS. NIKOLIC: [Interpretation] Thank you, Mr. President, I believe

3 you are right and that it would be advisable to go into private session.

4 JUDGE AGIUS: Let's go into private session for a short while and

5 then revert back when it is necessary.

6 [Private session]

7 (redacted)

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Page 8018

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9 [Open session]

10 JUDGE AGIUS: So Madam Nikolic has finished her cross-examination

11 for accused Nikolic. Does anyone else wish to cross-examine the witness?

12 Let's start with Mr. Zivanovic.

13 MR. ZIVANOVIC: No, thank you, Your Honour.

14 JUDGE AGIUS: Mr. Stojanovic or Mr. Lazarevic?

15 MR. STOJANOVIC: [Interpretation] Your Honour, we don't have any

16 questions for this witness. Thank you.

17 JUDGE AGIUS: Madam Fauveau, I think you have already made a

18 statement.

19 MS. FAUVEAU: [Interpretation] Yes, indeed. No questions,

20 Mr. President.

21 JUDGE AGIUS: Mr. Josse.

22 MR. JOSSE: Your Honour, in the light of what's happened, I would

23 be quite grateful if I could have a few minutes to discuss matters with my

24 client.


Page 8019

1 MR. JOSSE: And also, frankly, with my learned friend who

2 prosecutes.

3 JUDGE AGIUS: All right. We understand that --

4 MR. JOSSE: Thank you.

5 JUDGE AGIUS: -- Obviously in light of what was stated. So we will

6 have the 25-minute break now. All right? And we will continue

7 afterwards.

8 MR. JOSSE: Thank you very much.

9 JUDGE AGIUS: In the meantime, I would like to know, however,

10 before we go on break, Mr. Sarapa, will you be cross-examining this

11 witness?

12 MR. SARAPA: [Interpretation] Yes, for some half an hour,

13 approximately. Not more than 45 minutes all together.

14 JUDGE AGIUS: All right. Which should leave us time to deal with

15 the so-called preliminaries which are now appendices. Yeah, okay. Let's

16 have the 25-minute break now.

17 --- Recess taken at 5.18 p.m.

18 --- On resuming at 5.47 p.m.

19 JUDGE AGIUS: So, Mr. Josse.

20 MR. JOSSE: I am most grateful, Your Honour, and the Chamber will

21 be relieved to here I have no cross-examination.

22 JUDGE AGIUS: Okay. Thank you so much. So that leaves us with

23 Mr. Sarapa.

24 Go ahead.

25 Cross-examination by Mr. Sarapa:

Page 8020

1 Q. [Interpretation] Good afternoon, sir.

2 JUDGE AGIUS: We are in open session, any time you require us to

3 go into private session, please, Mr. Sarapa, don't hesitate.

4 MR. SARAPA: [Interpretation] For my first question, I will

5 probably need to go into private session [as interpreted]. I will

6 certainly have to go into private session for my third question, and for

7 the later questions I will indicate to the Trial Chamber a time when

8 private session is needed. I will probably not put such questions, but it

9 is better to be in private session.

10 Q. Is it --

11 JUDGE AGIUS: All right. Yes, for your first question you need to

12 go into private session. Let's go into private session straight away.

13 MR. SARAPA: [Interpretation] No, not for the first two. Not for

14 the first two questions. I will need private session for the third

15 question. My two first questions are of a general nature and the answers

16 cannot reveal the identity of the witness.

17 JUDGE AGIUS: Thank you. I was misled by the transcript. Thank

18 you.

19 MR. SARAPA: [Interpretation]

20 Q. Is it true that the units of the Territorial Defence in Zvornik

21 municipality were organised on the principles of Leparskin [phoen], which

22 means that there was no clearly-defined front-line?

23 A. Yes.

24 Q. Is it true that the defence line would follow the form of

25 concentric circles, depending on the prevalence of either the Muslim

Page 8021

1 forces or the Serb forces?

2 A. Yes.

3 MR. SARAPA: [Interpretation] Now can we please go into private

4 session.

5 JUDGE AGIUS: By all means.

6 Let's go into private session, please.

7 [Private session]

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20 [Open session]

21 MR. SARAPA: [Interpretation]

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Page 8022

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4 JUDGE AGIUS: Yes, Madam Registrar, could you provide for the

5 redaction, please. And let's proceed. We never know what to expect.

6 MR. SARAPA: [Interpretation] Can we go into private session,

7 please?

8 JUDGE AGIUS: Yes, let's go into private session.

9 [Private session]

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16 (redacted)

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Page 8023











11 Pages 8023-8024 redacted. Private session















Page 8025

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 JUDGE AGIUS: I take it that there are no further Defence teams

7 that wish to cross-examine the witness.

8 Is there re-examination, Mr. Nicholls?

9 MR. NICHOLLS: Briefly, Your Honour.

10 JUDGE AGIUS: Okay. Go ahead.

11 MR. NICHOLLS: And we need to go into private session, please.

12 JUDGE AGIUS: Let's do that, let's go into private session.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8026

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 JUDGE AGIUS: So, Witness, that brings your testimony to an end,

23 there being no further questions for you. Our staff will assist you,

24 after you leave the courtroom. On behalf of the Trial Chamber, I wish to

25 thank you for having come over to give testimony, and also wish you a safe

Page 8027

1 journey back home.

2 THE WITNESS: [Interpretation] Thank you.

3 [The witness withdrew]

4 JUDGE AGIUS: Now, before we proceed with the next witness, do you

5 wish to tender any exhibits in relation to this witness?

6 MR. NICHOLLS: I do, Your Honour. First, the pseudonym sheet

7 under seal, P02457. And I would also tender, if there is no objection,

8 the Zvornik Brigade duty officer logbook which I showed an excerpt to the

9 witness. There are other witnesses who -- that will be discussed

10 extensively in this trial, other witnesses will talk about it, but I would

11 tender it now as well.

12 JUDGE AGIUS: Any objection? I hear none. So these two documents

13 come in, are admitted. The first one of which is under seal. The second

14 I don't think needs to under seal.

15 MR. NICHOLLS: It does not need to be. For a limited purpose, I

16 would also tender the transcripts of the witness's interview.

17 JUDGE AGIUS: It happens that sometimes we are telepathic, the

18 members of the bench and we were all -- when I asked you whether this

19 needs to be in -- under seal or not -- let's go into private session.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8028

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

23 THE REGISTRAR: We are in open session.

24 MR. BOURGON: You asked if there are there was a question whether

25 there were any objections and maybe we read in a bit too much. I just

Page 8029

1 want to know if my colleague wants to enter just that one page he showed

2 or if he wants entered the whole book. We believe it would be better to

3 wait until we have another witness with the whole book, simply because

4 this person is not a member of the Zvornik Brigade. This witness was not

5 asked any questions what is the logbook, what its purpose is. That page

6 we have no problem, but the rest we prefer to -- it comes with another

7 witness who can explain that and also the dates because we will also have

8 some questions concerning not only that logbook for that month, but the

9 translation of the logbook for a longer period of time.

10 JUDGE AGIUS: You have made your point.

11 What's your position after hearing Mr. Bourgon.

12 MR. NICHOLLS: That's fine. I thought there might be something

13 along those lines. We'll admit it later. It's been marked, we have the

14 ID number for it.

15 JUDGE AGIUS: I think what Mr. Bourgon said makes sense. So we

16 will only admit for the time being the pseudonym sheet under seal, and you

17 are about to embark on a dangerous journey, so let's see how much wind is

18 against you.

19 MR. NICHOLLS: It's been dangerous for weeks, it feels like.

20 The -- there was intensive cross-examination on this -- on these

21 transcripts. Lots of propositions put to the witness, "you said this

22 seven times," "you said this six times," and the references were given. I

23 think that for Your Honours to evaluate as best you can the testimony of

24 the witness on direct -- well not on direct, but on cross-examination,

25 you're going to need that transcript to see whether he answered his --

Page 8030

1 whether the answers and the things put to him were correct or not.

2 The second reason for putting it in is, there was a strong attack

3 on the process in this case, the way the statement was taken, the way the

4 Prosecution behaved in the statement, whether there was a record at all of

5 this one portion of the interview. All that attack has been made and it's

6 true that one question was withdrawn during the direct, during the

7 cross-examination. But the allegations are still there, and I think it's

8 important for Your Honours, since that strong attack was made, to see the

9 entire record of what happened when, and how long.

10 I cannot see even the possibility of prejudice in putting those

11 statements in to you for the limited purpose, not for the truth of the

12 matter, not as -- not as testimony, but simply to evaluate the testimony

13 of the witness here, because if everything my learned friend said was

14 correct, then it will -- that will be apparent, it will help you to get to

15 the truth and to evaluate the testimony, if what I said was correct, the

16 same. Maybe it will be in between. The Defence put portions of that

17 statement on the screen, only the portions they wanted to. And I think

18 you should be able to read the -- his interview in its entirety, to see

19 whether it's true that he departed from his prior testimony, his prior

20 statement, to see if it's true that he said that he had never had these

21 meetings or that and this happened and to see if it's true that the

22 Prosecution made no record of what occurred. I think it will help you

23 with this important witness to be able to follow his testimony. Obviously

24 it would not be given to a lay jury back home because they would not know

25 how to assign the weight and purpose it was given to you, it is not

Page 8031

1 particularly complex but it's not something they could do and it would be

2 dangerous. But Your Honours know the only evidence you are going use is

3 what the witness said before you here under oath, and you can use that to

4 see whether or not the attacks on cross-examination were well-founded and

5 whether the witness was correct in his answers, which were predicated on

6 what he had said in the statement.

7 JUDGE AGIUS: Do you wish to comment on that, Mr. Ostojic?

8 MR. OSTOJIC: With the Court's permission, if I could address

9 this. The two points raised by my learned friend on the basis for

10 introducing such evidence do not honestly have any merit. First of all,

11 the question with respect to the witness, whether he said that he was or

12 was not, or had contact with the Main Staff on six, sevens occasions. I

13 invited my learned friend that we could sit down at any time and go over

14 it and we'll highlight specifically, and we gave him specific references

15 to that. The witness, at the end of the day -- despite our attempt to

16 highlight that, at the end of the day was asked the question and he

17 answered it. He answered it, as I'm sure we all remember, without me

18 telling the Court again what the answer is.

19 So despite whether it was five, or seven, 10 times that we've

20 stated -- that he denied having a meeting, he asked them, "Did you ever?",

21 and he gave us that answer. So I don't believe that's a proper basis.

22 The second basis, that there was an attack on the Prosecutor that

23 my learned friend, co-counsel asked, it was withdrawn at the end of the

24 day and he withdrew that question on the record, and we did apologise to

25 him and we probably overstepped our bounds, our excitement in the

Page 8032

1 courtroom, and we did apologise after the break. We withdrew the

2 question. However, to cure that is not to put the statement in.

3 To cure it would have been simply on redirect, which my friend had

4 an opportunity to ask him specifically those questions on whether or not

5 there was such involvement with the Prosecutor or prosecutorial

6 misconduct. They didn't do that. Now they're trying through the back

7 door to bring in a statement that covers more issues that they didn't

8 cover in their direct, that we didn't cover in our cross, and I object to

9 it and ask that the Court not allow this, even in this exception, but at

10 any time to allow the Court to have these statements in, as you previously

11 ruled.

12 And I'm also just being given I am given a reference page, for the

13 record as well, on page 33, lines 8 through 14, if the Court can look,

14 during his testimony today, where what I just said was actually confirmed.

15 Thank you, Your Honour.

16 JUDGE AGIUS: Yes, Mr. Josse.

17 MR. JOSSE: Your Honour, I took the opportunity at the last break

18 to speak to Mr. Nicholls, and ask him what he intended to do. And he had

19 the courtesy to tell me that he was going to make this application. Could

20 I say two things: I -- we would much rather this interview was not

21 admitted as an exhibit in this case. But secondly, and importantly, he

22 has said in the last few moments to this Chamber that he's only asking for

23 it to be admitted on a limited bases and not as to the truth of its

24 contents. All I say before I sit down is, were the Chamber to admit it,

25 and if so, we submit it should not be admitted. The Chamber should make

Page 8033

1 it clear that it would only be admitted on that basis. And clearly the

2 Chamber must consider Mr. Nicholls's application in relation to what he

3 said and, in particular, the cross-examination that Mr. Mrkic embarked

4 upon.

5 JUDGE AGIUS: Yes. Are there any further -- yes, Mr. Bourgon.

6 And then I will give you the floor again, Mr. Nicholls.

7 MR. BOURGON: Thank you, Mr. President. As a matter of principle,

8 I fully support the positions taken by my colleague, Mr. Ostojic, and as

9 well as my colleague, Mr. Josse. The idea is it's not for the Prosecution

10 to ask to have the statement of a witness admitted into evidence. The

11 only reason -- the only time where this should take place, if the

12 Prosecution wants to use a statement after requesting permission and

13 obtaining leave from the Court because they want to treat their own

14 witness as a hostile witness. In some circumstances like this, it may

15 happen that the Prosecution could ask for a statement to be admitted into

16 evidence. But in this case, if somebody wants to decide what should go

17 into evidence in terms of assessing the credibility of a witness, it has

18 to be the Defence. In this case, the Defence of Mr. Beara is not

19 requesting for that statement to go into evidence and that should be the

20 end of the matter.

21 If, as Mr. Ostojic said, in redirect questions had been asked

22 with, again, leave to use the statement because it was used during the

23 cross-examination, maybe again there could be established a -- Prosecution

24 could establish a basis. But in this case, there is absolutely no basis

25 for the Prosecution to ask for a witness statement to be admitted into

Page 8034

1 evidence. Thank you, Mr. President.

2 JUDGE AGIUS: Any further remarks?

3 Mr. McCloskey, Mr. Nicholls? Please decide.

4 And Madam Fauveau, if you wish to raise the same issue that you

5 did yesterday.

6 MR. McCLOSKEY: Mr. President, I would like to make a brief

7 comment. We, as you know, will hear -- be hearing from many more

8 witnesses of -- from the VRS and from the civilian Serb authorities that

9 were interviewed by the Office of the Prosecutor. When the Defence

10 challenges the integrity and absolute corruption, is the -- is what they

11 accused us of, about turning off the tape, filling in answers. When they

12 do that, they are putting the entire process of the interview in

13 question. And I think our reputation and our performance here, we can

14 deal with that. But if this is going to be an ongoing issue that we're

15 going to have to listen to this each time, I think the door begins to get

16 open on what really happened in that interview. I think that they have

17 opened that door with what Mr. Meek said early on. And as I say, there's

18 -- there's more at stake here than -- than merely the credibility of this

19 witness and this particular interview, as I see this as a pattern where

20 each important witness we have this big challenge to the integrity, either

21 of the witness or of the Prosecution. As you will recall, this is

22 happening over and over again. And I think there must be some logical

23 consequences to this kind of conduct. As you saw, there was nothing to

24 what Mr. Meek had said and the other questions were withdrawn.

25 JUDGE AGIUS: Mr. Meek.

Page 8035

1 MR. MEEK: Mr. President, Your Honours, I made an argument, I

2 didn't give evidence. And all I stated was that in this particular

3 interview they violated their normal procedure, which is to not talk about

4 the case when the tape recorder is turned off. You know, they never said

5 I was wrong about that. You denied it and it's done. This is a backdoor

6 way for them to try to get these statements in. I agree with Mr. Bourgon,

7 in certain limited circumstances if they want to impeach their own

8 witness, they can do that. Or in re-examination. They chose not to do

9 either of those. So I don't believe that has any merit whatsoever. And

10 frankly in all of these statements that I have seen in this case, this is

11 the only time this happened. So, I mean, we're not saying this happens on

12 a regular bases with the OTP. So in argument, certainly isn't evidence, I

13 wasn't attacking them, I just said it was irregular. Big deal. Not a

14 basis to let it in, Your Honours.

15 JUDGE AGIUS: Thank you. Let's confer.

16 Any -- apart from this, any further documents that would you like

17 to tender.

18 MR. NICHOLLS: Mr. McCloskey covered pretty much what I was going

19 to say. Just very briefly, this is not novel. This has happened in other

20 trials I've been in here, in the Limaj trial, and in other trials where

21 document or witness statement is made of such extensive use it can be

22 helpful for the Chamber to have it, and the Trial Chamber knows what

23 weight to give it, which is none, other than adjusting, viewing the

24 credibility of the witness.

25 And I just have to disagree with Mr. Meek. I did deny what his

Page 8036

1 allegations, it was not just sort of a friendly argument, it was a full

2 frontal attack on what happened. And the only way I think to fix that is

3 to put in the record.

4 [Trial Chamber and legal officer confer]

5 [Trial Chamber confers]

6 JUDGE AGIUS: I think we are unanimous on this. Considering the

7 extensive use that has been made of this -- these two interviews, we are

8 of the opinion that we need them before us as a Trial Chamber, with the

9 understanding - I need barely repeat that we are four professional judges

10 that know exactly how to make use of these statements - but to be

11 specific, as Mr. Josse himself suggested, they are being admitted to -- on

12 a limited basis, as put by you, Mr. Nicholls. And certainly not for --

13 and not for the truth of -- of their contents.

14 Yes, Mr. Ostojic.

15 MR. OSTOJIC: Thank you, Mr. President. I'm sorry, neither our

16 exhibit list nor the Prosecution's exhibit list was -- were both

17 statements included. So I'm not sure, only the 7th of April 2006 was

18 included. The 9th of April is not, and was not. So I don't -- we never

19 relied on that statement in any of our questioning. The only questions

20 came from the interview of the 7th of April.

21 JUDGE AGIUS: One question for example was whether any of the two

22 interviews, whether it was true that in both interviews he never mentioned

23 Colonel Beara, for example. That was one question. How -- how --

24 MR. OSTOJIC: I wouldn't --

25 JUDGE AGIUS: How can we come to a conclusion?

Page 8037

1 MR. OSTOJIC: With all due respect, Your Honour, I wouldn't want

2 to debate that with you and it's your recollection. But I am certain that

3 that was not raised because the second interview had something totally

4 different to do than the first interview. So I'm confident we didn't raise

5 it in that manner, but I will take a look at it and ask the Court to

6 merely reserve it so that we can re-address that issue tomorrow. And I

7 will closely go through the transcript to look at that again.

8 JUDGE AGIUS: We will have these two transcripts admitted. I

9 don't know the dates. You need to tell us the dates.

10 MR. OSTOJIC: Over our objections.

11 JUDGE AGIUS: Yes. Yes, of course.

12 MR. MEEK: Judge, just for the record. I apologise, excuse me.

13 Just for the record, look at page 71, starting at line 16 when

14 Mr. Nicholls makes his argument. He says that in other trials where a

15 witness's statement is made, and he made that earlier, "statement." He

16 didn't come around to "statement" until later in his argument because he

17 knows that we never -- no one made any cross-examination to do with the

18 second statement. It was all about the first statement. And Mr. Nicholls

19 knows that.

20 MR. NICHOLLS: That's --

21 JUDGE AGIUS: Yes, Mr. Nicholls.

22 MR. NICHOLLS: That's not true. I said "statement" as a generic

23 term. That means statement, this is his statement, it is one statement.

24 The second statement is putting on the record what was said during the

25 first statement. It is one statement and it was made use of, as

Page 8038

1 Your Honour picked up. It was this, you have never said this, you never

2 said that. This was in the included, and I think the Court has made its

3 ruling. And if that statement is not of value, then it is a nullity.

4 JUDGE AGIUS: Listen, I am not used, after having handed down a

5 decision, to reopen the discussion unless there is -- is something, but

6 for that matter you have referred us to page 71, I can refer you to page

7 66, line 3, where he is definitely referring to transcripts and not

8 transcript. But anyway, the discussion on this is closed.

9 Yes, Mr. Bourgon.

10 MR. BOURGON: Thank you, Mr. President. We will be asking for

11 certification of this decision in order to go before the Appeals Chamber.

12 We believe that this is an issue that does go and we will do that in

13 writing, Mr. President. And I would also ask that we ask for a stay of

14 the Trial Chamber's decision until we get decision on both certification,

15 and the case may be before the Appeals Chamber. Thank you, Mr. President.

16 JUDGE AGIUS: There is -- but we will deal with both. In the

17 meantime, they are admitted.

18 [Trial Chamber confers]

19 JUDGE AGIUS: Okay. Then we will await your motion for

20 certification.

21 MR. OSTOJIC: And we will join that, Your Honour. I'm sorry.

22 JUDGE AGIUS: Pardon.

23 MR. OSTOJIC: I will join that, obviously, as well just so the

24 Court -- when he said "we," I was assuming he was going to just --

25 THE INTERPRETER: Interpreters note, if you could avoid overlap.

Page 8039

1 JUDGE AGIUS: You mean you want to join in as well?

2 MR. MEEK: No, Judge, I want to correct what I said earlier. Page

3 66, line 10, where Mr. Nicholls is asking and speaking about what's

4 correct and not, the second reason for putting it in, "there was a strong

5 attack on the process in this case, the way the statement was taken." And

6 he knows it.

7 JUDGE AGIUS: I think I sent my message loud and clear when the

8 decision has been taken. No further discussions, please.

9 One thing that we need to clear up, because there may have been a

10 small misunderstanding. That Zvornik Brigade duty officer logbook, you

11 have withdrawn that, you are not tendering at all?

12 MR. NICHOLLS: No, not at this time. We will do that later with

13 another witness.

14 JUDGE AGIUS: Okay. Thank you. So -- yes. Now, we come to

15 documents from the Defence. Beara team.

16 MR. OSTOJIC: If I may again handle this. Just to go quickly, we

17 would like to tender 2D64, 7D238, 2D67, and 2D68.

18 JUDGE AGIUS: Any objections on the part of the Prosecution? Or

19 for that matter from any of the Defence teams because they may have an

20 interest too.

21 MR. NICHOLLS: I don't think they put 2D64 and 67 to the witness.

22 But I don't have any strong objection to that. They talked about it. I

23 don't see the need for 2D68 to come in, but I -- I guess I don't have any

24 really strong objection to it. It -- the -- I just don't see the need for

25 it.

Page 8040

1 JUDGE AGIUS: Do you wish to respond to that, Mr. Ostojic?

2 MR. OSTOJIC: The Court should grant my request since they don't

3 have any other objection.

4 JUDGE AGIUS: I was going to tell Mr. Nicholls, when in doubt --

5 the rule is when in doubt, don't.

6 MR. OSTOJIC: In all seriousness, with respect to 2D68, a lot was

7 covered. I think the Court will look through that document because it's

8 an OTP witness in another case who specifically highlights certain aspects

9 of what we consider to be crimes that may have been committed or were

10 committed, at least alleged by this witness, by the witness that we've

11 just heard. And I think you can see the two points that he differentiates

12 between certain witnesses that he claims were perpetrators of those

13 crimes. So we think it is relevant.

14 JUDGE AGIUS: I take it you are not submitting this for the truth

15 of its contents either.

16 MR. OSTOJIC: We hope to bring the witness forward on that, with

17 the assistance of the Prosecutor, so we can locate him.

18 JUDGE AGIUS: Mr. Mrkic is looking for him.

19 MR. OSTOJIC: Yes, Your Honour.

20 THE INTERPRETER: Microphone, please.

21 JUDGE AGIUS: Yes, any objections from any of the Defence teams?

22 None.

23 [Trial Chamber confers]

24 JUDGE AGIUS: The conclusion we arrive at or two, I don't know,

25 which is the right one, is that these four documents are all being

Page 8041

1 admitted, and they will be marked accordingly by our staff. Or by the

2 Registrar.

3 Does anyone else, Mr. Sarapa or Madam Nikolic, do you wish to

4 tender any documents?

5 Mr. Sarapa?

6 MR. SARAPA: No, thank you.

7 JUDGE AGIUS: No. So that comes to an end.

8 Now, yesterday we adjourned with some unfinished symphonies still

9 ongoing. One was declaration from you, Mr. McCloskey, that following the

10 statement by Mr. Vanderpuye you had given instructions for a thorough

11 check and recheck of the documentation that may relate to Ms. Frease's

12 testimony. And that depending on that first you would give us information

13 on that and secondly depending on that we would know more or less when to

14 expect her to return. So can you update the Trial Chamber on that,

15 please?

16 MR. McCLOSKEY: Yes, I believe Mr. Vanderpuye has the -- has the

17 latest on that, and I hope it's good news.

18 JUDGE AGIUS: Okay. All right. So in that case, you needn't hide

19 behind the column, Mr. Vanderpuye.

20 MR. VANDERPUYE: Please excuse my positioning this afternoon.

21 Good afternoon to you, Mr. President, to Your Honours, counsel.

22 I do have the latest on that, and the latest on that was that we

23 had completed a search of all of the data archives of -- in our database.

24 And we did identify some additional documents which I furnished to the

25 Defence late last evening, I think around -- close to 10.00. That's about

Page 8042

1 the time that we got through sorting through what we found, and turning

2 over what we thought we were responsible to turn over. I don't know if

3 the Defence has had an opportunity to go through those documents, digest

4 them and prepare themselves for cross-examination. But I'm informed by

5 the investigation team that undertook this search and others that we have

6 completed a thorough search of our database. I also did check to see if

7 there were any physical files lying around in the area where Ms. Frease

8 previously worked, and there were no such files. I also asked the

9 investigator to check if there were cupboards or cabinets or things of

10 that nature to identify if there were any such files and I am told that

11 there were none. What we have turned over I think represents the totality

12 of the documents relevant to Ms. Frease's testimony that we don't believe

13 are covered by Rule 70, paragraph A, as we discussed yesterday. That's

14 the news.

15 She's here, and we're prepared to proceed. I believe -- I believe

16 the Defence is aware that she's here today because I think you had invited

17 her to come back to be cross-examined today.

18 JUDGE AGIUS: Yes, does any one of the Defence team wish to

19 address the Trial Chamber? Madam Fauveau.

20 MS. FAUVEAU: [Interpretation] Mr. President, we received the

21 documents yesterday regarding General Miletic we can continue with the

22 cross-examination of Ms. Frease, but before doing so I'd like to raise a

23 question. Among the documents we received yesterday there are five

24 reports, informative reports taken by the Prosecutor during interviews

25 with witness who have already testified. PW-131, PW-129, PW-124, PW-136,

Page 8043

1 and PW-145. These documents have been in the possession of the OTP since

2 1999 because that's the time when the reports were drafted.

3 Yesterday I raised the issue of an apparent breach of the Rule 68

4 obligation by the Prosecutor. I spoke to the Prosecutor about it. We

5 never agree on this. What we think is Rule 68 obligation is not

6 considered so by the Prosecutor. I can understand why information can be

7 understood differently by both sides, but here we are in a case of

8 violation of Rule 66(A)(ii) and there is no possibility of a dual

9 interpretation of the -- such rule. The Defence was not able to duly

10 prepare for cross-examination. I'm not in a position to tell you whether

11 the cross-examination would have been any different, but I'm very

12 worried.

13 We have received today information statements, basically, by

14 witnesses who have already testified in this case. Thank you.

15 JUDGE AGIUS: Do you wish to comment on that, Mr. McCloskey?

16 MR. McCLOSKEY: Yes, Your Honour. It's my understanding that

17 there -- that's correct, though the -- Ms. Frease was at interviews with

18 investigator Dean Manning, and Dean Manning's statement of that, of that

19 witness, has been provided to the Defence. Ms. Frease in a few situations

20 had made an additional note or two about something the person had said and

21 those, when we found them, we turned them over. I didn't find anything

22 particularly significant in -- in any of those additional bits, but when

23 we found them, yes, we should have turned them over and -- but I don't see

24 any -- any -- any Rule 68 in them. But we of course remain available to

25 bring back someone, if -- if there's some need or we can -- but I frankly

Page 8044

1 don't see anything that gets anywhere near that. But we are -- we're --

2 we wanted to make this as correct as we possibly can. But these are small

3 details that Ms. Frease added in addition to the statement that the person

4 had. I believe that's -- that's correct, and Mr. Vanderpuye agrees with

5 me.

6 JUDGE AGIUS: I think what I can say is that, strictly speaking,

7 we are seized of a submission but not of a specific request, so I won't

8 say anything more on it. Later on, if we are at any time seized with the

9 issue that you raised, Madam Fauveau, we'll give opportunity to the

10 Prosecution, to yourself, to air your views and then we'll hand down a

11 decision.

12 And that applies of course not just to you, but any -- because

13 we're talking of witnesses that testified in the trial.

14 Mr. Haynes, yesterday, towards the end of the session, of the

15 sitting, raised an issue relating to a motion of yours, Mr. McCloskey, to

16 convert 12 witnesses to 92 ter witnesses. And my impression, after having

17 heard both of you, was that maybe you could have a roundtable between you,

18 amongst you and in regard to one or two of these witnesses you could make

19 one kind of submission in relation to others, maybe another. Have -- what

20 I want to know is two things: Whether you have met and discussed this,

21 and whether you have come to some kind of agreement amongst you or between

22 you, and then, depending on the answer, I will move to my next question.

23 Yes, Mr. McCloskey.

24 MR. McCLOSKEY: We have had a chance to talk about it briefly.

25 He's given me the names of two of the three people I think that he was

Page 8045

1 interested in. He made sense, and I want to go back and take a look at

2 those witnesses. It may be simpler for everyone to just do a brief direct

3 on some of them. But I need more hours in the day, unfortunately,

4 Mr. President.

5 JUDGE AGIUS: Okay. I mean ...

6 Yes, Mr. Haynes.

7 MR. HAYNES: Just to fill you in, of the original 12, I considered

8 that the application is perfectly good in relation to eight of them.

9 JUDGE AGIUS: All right.

10 MR. HAYNES: Without --

11 JUDGE AGIUS: Can you tell me straight and plain whether there is

12 agreement to convert the testimony of Mr. Peccerelli?

13 MR. HAYNES: Yes.

14 JUDGE AGIUS: When is that witness due to come over? Because I

15 thought I was going to expect him after witness PW-104.

16 MR. McCLOSKEY: He is in my office right now, but we're hoping to

17 get Ms. Frease done first.

18 JUDGE AGIUS: All right. One moment.

19 [Trial Chamber confers]

20 JUDGE AGIUS: We have, as you know been discussing amongst

21 ourselves on all this, and Judge Kwon would like to say -- state

22 something.

23 JUDGE KWON: I don't it will affect, at the end of the day, the

24 actual conduct of the examination, but my question was whether we need 92

25 ter at all in case of expert witnesses. With the regime, that kind of

Page 8046

1 regime or format of examination has been possible, even before the

2 existence of 92 ter, so can I hear your observation.

3 MR. McCLOSKEY: At this point I'm confused with 92 ter and 92 bis

4 and 94 and A and B and -- but most of our experts are 92 bis and the plan

5 is a very -- well, 15 minutes, maybe 30 minutes, there is some new issues

6 that have arisen that you may want to hear about, but yes, I don't know

7 if we need to do 92 ter for experts. Most of them have already been 92

8 bis, and I think that kind of covers -- covers the issue that we are all

9 concerned about. But if there is something in particular --

10 JUDGE KWON: Then there comes another tukwej [phoen] issue between

11 the relationship between 92 bis and 94 bis. But as long as there is

12 agreement between the parties, it's fine.

13 JUDGE AGIUS: Yeah, okay. I don't think I will add anything to

14 what Judge Kwon said. In reality, these, Peccerelli and someone else, I

15 forgot his name now -- yes, Dakwija [phoen], were two experts that you

16 wanted to bring forward to testify viva voce. They were not included in

17 the 92 ter list. So I think you can understand Judge Kwon's statement,

18 even better, after having said that.

19 Gentlemen, and ladies, before then, shall we come -- recommence

20 with Ms. Frease? Is there any objection? None. Shall we bring her in,

21 please. We are not going finish with her today, obviously, I mean, but we

22 will make a serious attempt.

23 MR. McCLOSKEY: And just a housekeeping -- she can come in, fine.

24 I am informed that -- with one of these, that Mr. Baraybar is here, is

25 from Peru. He's here to testify in the -- what we call the MOS case, the

Page 8047

1 Kosovo case. He was -- the Prosecution cannot seem in that case to figure

2 out when he's going to testify. We're actually -- they're doing -- trying

3 to do the same thing we are, and we'll try to -- as soon as we can sort

4 out when he will be able to testify in both these cases, we will inform

5 you. But I am told that he cannot testify on Monday. That may be because

6 he's in the MOS case and we don't want him to be on the witness stand in

7 two cases at the same time, if we can help it. Anyway that's a detail, we

8 will inform everyone.

9 JUDGE AGIUS: We will go down in history if we succeed in doing

10 that. Have him in two witness boxes at the same time.

11 Yes, Mr. Nicholls.

12 [The witness entered court]


14 JUDGE AGIUS: We finally made it, Ms. Frease. And you will be

15 here for less than 15 minutes, that's more or less the time left. But we

16 will proceed today and then we will continue tomorrow.


18 JUDGE AGIUS: Who wishes to go next?

19 Mr. Ostojic.

20 THE WITNESS: Excuse me, Judge. I have a question.

21 JUDGE AGIUS: I don't promise you an answer.

22 THE WITNESS: Okay. Is it possible at all to see a document that

23 Mr. Zivanovic presented to me when I was here last?

24 JUDGE AGIUS: If you tell us which document it was.

25 THE WITNESS: It was the fuel order.

Page 8048

1 JUDGE AGIUS: Oh, yes. Do you need to see it today?

2 THE WITNESS: No, no.

3 JUDGE AGIUS: Or can you see it tomorrow?

4 THE WITNESS: Yeah, mm-hmm.

5 JUDGE AGIUS: It will be brought tomorrow and shown to you.

6 Unless you need to see it today in the wake of any question that may be

7 put.

8 THE WITNESS: Thank you.

9 JUDGE AGIUS: We will do that.

10 Mr. Ostojic, again my apologies to you for interrupting you.

11 MR. OSTOJIC: Thank you, Mr. President.

12 Cross-examination by Mr. Ostojic: [Continued]

13 Q. Good afternoon, again, Ms. Frease. Or good evening again. The

14 last time we met a couple days ago, I put a question to you and then we

15 ended basically for the day. Do you remember the question?

16 A. No.

17 Q. Thank you for that. I asked you that you have used the word

18 during your testimony in this case, "independently corroborated," and in

19 other testimonies you have used "internal consistency" to establish that

20 corroboration. Did those two words, "independently corroborated" and

21 "internal consistency," mean the same thing to you?

22 A. I think it would be depend on the context, but I would say not

23 necessarily.

24 Q. And describe for me how it wouldn't?

25 A. Is it possible for you to give me examples of cases where I've

Page 8049

1 used those two terms?

2 Q. You have in the Krstic case, for example, in looking at certain

3 intercepts you said to Judge Wald, I believe, that these documents show an

4 internal consistency, and that that was an - I am summarising for you. I

5 could get it for you exactly - that that was the basis for you showing

6 that they were corroborative with each other.

7 A. In that example I would say that I was -- hold on just a second.

8 Let me read your question again. That -- that I was probably referring to

9 material contained within the intercepts. And the subject matter within

10 the intercepts.

11 Q. You shared with us in your intercept binder a sample, as you

12 called it, of the intercepts you showed, there was some corroboration.

13 Did you find in any of the intercepts independent corroboration as opposed

14 to corroboration with other intercepts from other logbooks like I think

15 you did for an intercept that was purportedly captured on the 14th of

16 July, 1995?

17 A. Which intercept on the 14th of July?

18 Q. The one that you testified about involving, purportedly, Mr. Beara

19 and General Krstic.

20 A. On --

21 Q. In the binder you show that there is four entries in four

22 different sources. My question is just -- to put it right to you, other

23 than those intercepts which are internally consistent, according to you,

24 did you have any other independent corroboration with respect to that

25 intercept?

Page 8050

1 A. I think that was an intercept on the 15th of July. The one --

2 you're speaking about the one at 9.55, 9.57, and 10.00?

3 Q. Correct.

4 A. Yes.

5 Q. And the binder is right in front of you.

6 A. There is. There is another conversation that relates to those

7 three from the 13th of July at 1919, I believe.

8 Q. You said that, but I'm talking about independent from the logbooks

9 themselves, or the printouts, was there --

10 THE INTERPRETER: Interpreters note, could we avoid overlap,

11 please.

12 MR. OSTOJIC: I'm sorry.

13 Q. Other than the notebooks themselves, and the printouts as you've

14 testified to, was there any other independent source of corroboration?

15 A. No, I don't believe there was.

16 Q. Can you share with us, Ms. Frease, your efforts to obtain third

17 party or independent sources in -- that you utilised in the determining

18 whether or not the logbooks were authentic?

19 A. Well, I think we've talked about this before, right. Using

20 videotape, using notes from UNPROFOR, note-takers of conversations between

21 UN officials and members of the VRS. A lot of VRS documents.

22 Q. And you find that third party independent source, even though it

23 includes one of the participants or parties, correct?

24 A. Yes.

25 Q. Now, what about independent, as I call them, third party sources,

Page 8051

1 like you mentioned in your testimony the other day on page 44, lines 9

2 through 11, and again on page 31, line 5, that you mentioned, and I

3 will -- I think I'm quoting it directly, but you were asked by my learned

4 friend, Mr. Zivanovic, did you double-check it in any way, and you gave an

5 answer, and then you said, "not with an outside handwriting expert." So I

6 want to talk about that a little bit, and using this outside handwriting

7 expert, do you think he would qualify as a third party, independent

8 source?

9 A. If you're talking about when the notebooks -- let -- let me

10 preface it by saying I don't know precisely what the skills of a -- a --

11 of a handwriting expert or an expert in ink and dating ink and all of

12 that, what they are able to do, what they're able to determine.

13 Q. Well, did you inquire ever?

14 A. No.

15 Q. Did you inquire if a handwriting expert can determine the age of a

16 piece of paper, that he can tell you exactly when that paper was

17 manufactured?

18 A. No.

19 Q. Did you inquire of any third party, independent source, including

20 a forensic handwriting expert, to determine whether the logbooks were

21 manufactured or put in the market on a certain given date?

22 A. No.

23 Q. Okay. Who is Mr. Ten Camp?

24 A. Ten Camp?

25 Q. I think. Or is it Kemp? Camp? He is a forensic handwriting

Page 8052

1 expert that the Office of the Prosecution used from time to time in other

2 cases. Have you ever used the handwriting expert to determine the

3 authenticity of the logbooks that we are discussing in this case?

4 A. No.

5 Q. Did you ever call the manufacturer of the logbooks to determine

6 when the logbooks were actually created?

7 A. No, I didn't.

8 Q. Did anyone under your direction when you took over this intercept

9 project, as we've called it from time to time?

10 A. No, not to my knowledge.

11 Q. Do you know what the year of the publication of these logbook or

12 notebooks are?

13 A. No.

14 JUDGE AGIUS: Yes, Mr. Vanderpuye.

15 MR. VANDERPUYE: I do see that the question has been answered.

16 The objection is -- I do see that the question has been answered but the

17 objection is I would ask my learned friend to put a more specific question

18 to the witness since it is not clear that all the logbooks were

19 manufacturing or not at a given date or time.

20 JUDGE AGIUS: Mr. Ostojic.

21 MR. OSTOJIC: Yes, that's very fair, Your Honour.

22 Q. I mean, Ms. Frease, very quickly this way: You have no idea, in

23 fact, that -- when any of the notebooks were manufactured, meaning you

24 don't know if they were manufactured all at the same time or they were

25 manufactured over a period of time, correct?

Page 8053

1 A. That's correct.

2 Q. Now, did you ever notice in any notebook that there was bar-code

3 information on one of the logbooks or some of the logbooks?

4 A. I can't say that I paid specific attention to bar-codes, no.

5 Q. Are you familiar with what a bar-code is? We see it every day in

6 a grocery store when they have us zip through the lines, right?

7 A. Right.

8 Q. What do you think is contained in those bar-code information

9 sheets that are on things such as logbooks?

10 JUDGE AGIUS: Yes, Mr. Vanderpuye.

11 MR. VANDERPUYE: That question clearly calls for speculation,

12 Your Honour.

13 JUDGE AGIUS: I thought, if she knows. I know what a bar-code

14 contains, for example, so ...

15 Yes, Ms. Frease.

16 THE WITNESS: I don't know.

17 JUDGE AGIUS: That's her answer to you. Go ahead.


19 Q. Let me ask you if you could summarise for us briefly, the

20 printouts for a second, do you know if the information that was above the

21 line, the prefatory information, whether or not that was placed in the

22 computer and generated by the computer automatically, or were intercept

23 operators able to input dates or other significant information on that

24 portion of the printouts?

25 A. I will have to make an assumption here. Because I had left at the

Page 8054

1 time that the electronic copies were decoded and electronically stamped by

2 the evidence unit here. In looking at the electronic copies and seeing

3 that a couple of the dates were incorrectly typed, I would assume that

4 they had the ability to type the dates.

5 Q. Now -- and I know we only have a couple of minutes. I'm just

6 trying to understand, when you were the lead person or head person of this

7 intercept project, you had many people working for you. Did you record

8 when you had meetings with these people? Like a memo to file?

9 A. You assume I had many people working. I think that's an

10 assumption.

11 Q. I apologise for that, but I thought your testimony was, just to

12 try to short circuit it, that you had translators working for you,

13 investigators working for you, researchers working for it, and it's my

14 mistake probably but whatever the number of people were, did you maintain

15 a record of meetings with those people?

16 A. No, I didn't.

17 Q. Okay. When you met with witnesses, did you also create or

18 generate what's known as an information sheet or an information report?

19 A. Yes, sometimes I did.

20 Q. When would you and when wouldn't you?

21 A. I would create -- for example, I would create an information

22 report if I met with someone and perhaps didn't take a statement from

23 them, but we had a conversation in which they provided information that --

24 that was important, that was relevant.

25 Q. And you would be the sole determining person -- or you would be

Page 8055

1 the sole person to determine whether that information was important or

2 relevant; is that correct?

3 A. Sometimes it was very easy to know whether the information was

4 relevant or not. If I ever had a question about anything, I always

5 asked.

6 Q. How many intercept operators did you personally interview?

7 A. I can't give you a specific number.

8 Q. More or less than 10?

9 A. I would say less.

10 Q. We'll go over them. Hopefully tomorrow.

11 While interviewing these intercept operators, did you recognise or

12 find that there were some inconsistencies between their stories?

13 A. What do you mean by "their stories"?

14 Q. By how they told you they were required to fill in the logbook,

15 when they received the logbook, whether or not they knew the participants

16 in the logbook, whether changes should be made to the logbook, when

17 changes or modifications should be entered into the logbook, things of

18 that sort.

19 A. There weren't inconsistencies with respect to -- as far as I

20 remember, with respect to when they needed to fill in the logbook, because

21 all of the conversations recorded by the military at that time, during the

22 time period that we're talking about, there was a requirement to record

23 the conversations in logbooks.

24 When they received logbooks there might have --

25 Q. It might be our time. Her microphone is flashing, I think, and

Page 8056

1 that's why she's hesitating. Someone's sending her a signal from

2 somewhere, with all due respect.

3 JUDGE AGIUS: It may mean it's 7.00.

4 MR. OSTOJIC: Maybe.

5 JUDGE AGIUS: So I think let's adjourn here, and your question was

6 extensive in any case, so I think --

7 MR. OSTOJIC: It was just to put her in the context and I'm going

8 break it down.

9 JUDGE AGIUS: No, it's a fair question. And I think it needs to

10 be broken down into the various -- and then she will respond to it

11 tomorrow.

12 Tomorrow we are sitting in the morning and not in the

13 afternoon --


15 JUDGE AGIUS: -- so we will meet here at 9.00 in the morning.

16 Thank you.

17 --- Whereupon the hearing adjourned at 7.01 p.m.,

18 to be reconvened on Friday, the 2nd day of March,

19 2007, at 9.00 a.m.