Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18094

 1                          Thursday, 22 November 2007

 2                          [Open session]

 3                          [The accused entered court]

 4                           --- Upon commencing at 2.21 p.m.

 5            JUDGE AGIUS:  Good afternoon, everybody.  And to you as well,

 6    Madam Registrar, of course.  Please call the case.

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

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

 9            JUDGE AGIUS:  Thank you, Madam.  For the record, all the accused

10    are here.

11            From the Defence teams, I notice the absence of Mr. Haynes,

12    Ms. Nikolic and of Mr. Ostojic.

13            Prosecution, it's still Mr. McCloskey and Mr. Nicholls.

14            Before we continue, as I did last year, on behalf of the Trial

15    Chamber, to those of you that celebrate Thanksgiving day today, I know how

16    precious it is for you and for your country, we all wish you a very good

17    Thanksgiving Day.  Those of you who are with us here and those of you who

18    are absent today like Mr. Ostojic.

19            I understand there are some preliminaries, and we have got some

20    too.  Yes, Madam Fauveau?

21            MS. FAUVEAU: [Interpretation] Your Honour, we received today the

22    decision that relates to certification and clarification of the decision

23    pertaining to impeachment of the witness who called the witness, the

24    Defence of General Miletic had asked for the clarification of this and not

25    for certification.  Given the decision that has been handed down on the

Page 18095

 1    clarification, I would like to ask you for certification so that we can

 2    also appeal this decision.  My request and my certification request on the

 3    decision relating to certification ties into the initial decision.

 4            JUDGE AGIUS:  So you are seeking certification from yesterday's

 5    decision?

 6            MS. FAUVEAU: [Interpretation] Yes, Your Honour, because I have not

 7    met the deadline for the first decision.

 8            JUDGE AGIUS:  Okay.  We'll need to discuss about that.  I don't

 9    think it should present us with big problems, to come to a decision but

10    we'll let you know after the first break.

11            That's number 1.  Any other preliminaries?  No.

12            We were given copies this morning of two motions, one of which is

13    Prosecution is seeking protective measures for Witness 190, namely that of

14    a pseudonym and closed session.  Since this witness was supposed to start

15    today but due to his illness won't be able to so but presumably he might

16    be starting tomorrow, I wish to know whether there are any objections on

17    the part of any of the Defence teams.  Mr. Bourgon?

18            MR. BOURGON:  Good afternoon, Mr. President.

19            JUDGE AGIUS:  Good afternoon.

20            MR. BOURGON:  There are no objections on behalf of the Nikolic

21    team.  This witness is the person we've had the opportunity of meeting on

22    a couple of occasions in the Zvornik area and we have no objections.

23    However, I did communicate with my colleague this morning in respect of

24    three things.  First, I said that I would like to obtain any audio

25    recording of any further proofing sessions conducted with the witness.

Page 18096

 1    The second one is I'd -- I asked my colleague to communicate to the

 2    witness that we would like to see him before he testifies.  And the third

 3    thing is we offered to our colleague to maybe, if he is too sick to

 4    testify, that maybe we can stipulate to the contents of his testimony and

 5    I will see what my colleague about this possibility.  Thank you,

 6    Mr. President.

 7            JUDGE AGIUS:  Is there -- are there any other comments from any of

 8    the Defence teams on the protective measures issue?

 9            MR. ZIVANOVIC:  We support the submission of Mr. Bourgon, thanks.

10            JUDGE AGIUS:  Thank you.  And I think the question of protective

11    measures, then, we can decide here and now.

12            The other two matters raised by Mr. Bourgon and supported by

13    Mr. Popovic, speaking in the plural, by Mr. Zivanovic speaking in the

14    plural, you need to discuss it or --

15            MR. NICHOLLS:  I can say right away as I've said to my friend, no

16    objection to 1 and 2.  I have not yet met the witness other than for five

17    minutes at his hotel last night to say hello and see how he was doing but

18    if there is any further proofing which I hope there will be, I should say

19    proofing not further proofing, then the audio will be disclosed as we

20    promised in our submission and I will, of course, convey and arrange a

21    meeting.  And the third thing is I don't think we are going to want to

22    stipulate.  I'll think about that but I think we would like him to testify

23    as soon as he's able to.

24            JUDGE AGIUS:  Okay.  Thank you.  Make sure he doesn't infect

25    either you or Mr. Bourgon.  So that is okay.

Page 18097

 1            We can hand down our decision, therefore, on the Prosecution

 2    motion for protective measures.

 3            The motion was filed yesterday, or today, the 22nd of November.

 4    Having heard no objection on the part of Defence, some Defence teams, and

 5    no comment from others, the Trial Chamber grants the motion, to wit the

 6    protective measures sought for this witness, namely that of closed session

 7    and use of pseudonym.  The pseudonym will be PW-171.

 8            All right.  Then there was another --

 9                          [Trial Chamber confers]

10            JUDGE AGIUS:  Then there is another motion that was also filed

11    this morning, namely a Prosecution motion for leave to amend 65 ter

12    Exhibit list with 12 exhibits pertaining or relating to witnesses number

13    33 and number 31.  The details of -- or the subject matter of these 12

14    documents are indicated in the motion itself.

15            As I understand it to be, Witness number 33 is due to testify on

16    Monday and Witness number 31 will follow soon after, on Wednesday, if the

17    schedule goes as planned.  And therefore, I'm asking you to provide us

18    with a feedback, with your response, on this motion if you are in a

19    position to do so.  Yes, Mr. Josse?

20            MR. JOSSE:  Let me say on behalf of our team, that we are not at

21    all happy about the present situation and predicament.  Before I start I

22    should say in fairness that a courtesy copy of this motion was provided

23    yesterday afternoon so we had notice of it at that particular point.  As I

24    speak, our team has not yet located all of these documents.  Clearly we

25    are going to need to.  I dare say they all exist and I accept what is said

Page 18098

 1    in the motion that they were disclosed a long time ago.  I'm not going to

 2    argue with that at all.

 3            The motion is extremely late.  The Trial Chamber have specifically

 4    asked the Prosecution some weeks ago to provide a final and definitive

 5    list of the documents that were going to be used prior to the end of this

 6    case, and we are entitled to 14 days to reply to this motion.  On behalf

 7    of the Gvero team we are simply not in a position to deal with it in the

 8    short way and short basis that we are being asked to do by the Prosecution

 9    at the moment.  And the situation is intolerable as far as we are

10    concerned.  There are a number of other pressing work matters, not least

11    the preparation of these two very important witnesses, a number of issues

12    have arisen this week which we were unable to foreshadow last week, so to

13    speak, and to be met with this at the 11th hour is as I already said

14    unacceptable and we request further time and we are not ready to deal with

15    it at this particular juncture.  The very earliest we will be ready to

16    deal with it is on Monday, if the Trial Chamber insists as I imagine it

17    will.  For obvious reasons we can't hold up the witnesses.  I accept that.

18    One of these witnesses is coming from a long way away and I live in the

19    real world and I appreciate what we'll have to do.  But I invite the Trial

20    Chamber to say that we can address it on Monday morning but perhaps an

21    explanation from the Prosecution as to why this is happening at the 11th

22    hour.

23            JUDGE AGIUS:  Yes.  Thank you, do you wish -- yes, Mr. Bourgon?

24            MR. BOURGON:  Thank you, Mr. President.  Mr. President, those two

25    witnesses do not pertain to the events against Drago Nikolic and  neither

Page 18099

 1    do the documents.  However, I'd like to point for the record that the

 2    arguments raised by the Prosecution in their motion by their contents

 3    simply make Rule 65 ter a useless rule altogether.  They take it for

 4    granted that they will just have to put in a piece of paper and that it

 5    will be granted all the time.  We feel, Mr. President, this is

 6    inappropriate.  Thank you, Mr. President.

 7            JUDGE AGIUS:  Thank you, Mr. Bourgon.  Any other comments?

 8    Mr. Meek?

 9            MR. MEEK:  Thank you, Mr. President.  Your Honours, I would just

10    simply join in with Mr. Bourgon's comments.

11            JUDGE AGIUS:  And not with Mr. Josse's comments?

12            MR. MEEK:  Obviously, since he was commenting on Mr. Josse's

13    comments, it would include Mr. Josse, my esteemed colleague.  Thank you.

14            JUDGE AGIUS:  Mr. Nicholls or Mr. McCloskey, I don't know who

15    wishes to address this.  Mr. Nicholls?

16            MR. NICHOLLS:  Thank you, Your Honour.  First, I think Monday

17    morning will probably be fine and my friends can have the weekend to hone

18    their arguments.  Based on the -- what I'm told about the current health

19    situation of Witness 190, it may be that we would be calling him to

20    testify Monday.  I think he's a one-day witness so that would push back

21    the other witnesses who this motion concerns.

22            I believe although I can't speak with complete authority about

23    this motion, that these are documents which were attached or referenced to

24    in the statements of the two witnesses for next week and I say that with a

25    caveat, and that they've recently been, as Mr. Thayer has been preparing

Page 18100

 1    these documents, have come up, I don't -- as clear in the motion, these

 2    are all ones which the Defence has had for a long time.  We don't feel

 3    with Rule 65 ter, as Mr. Bourgon said, that we just file a piece of paper

 4    on take anything for granted.  I can't really go into the merits of each

 5    of these documents at the moment, but I think that's something that we

 6    could discuss on Monday morning.  We have no problem with that.

 7            JUDGE AGIUS:  Thank you, Mr. Nicholls but it begs the two

 8    questions.  One is how far back do the statements of these two witnesses

 9    go?  And if they go far enough, assuming as you say that these documents

10    were referenced in the same statements, why weren't they included in the

11    65 ter list in the first place?

12            MR. NICHOLLS:  I will have to talk to -- I would have to talk to

13    Mr. Thayer or perhaps bring Mr. Thayer down here would be more efficient

14    or after the break, Your Honour, and I think he'll be able to explain this

15    much better than I can at the moment.

16            JUDGE AGIUS:  I think so because I think an explanation is --

17    would be in place.  Yes, Mr. Nicholls?

18            MR. NICHOLLS:  Then either if we reserve some time at the end

19    today, we may have time at the end of the cross or after one of the breaks

20    we can talk about this further.

21            JUDGE AGIUS:  All right.

22                          [Trial Chamber confers]

23            JUDGE AGIUS:  So you will have up to Monday noon to come back with

24    your responses.

25            MR. JOSSE:  Thank you.

Page 18101

 1                          [Trial Chamber confers]

 2            JUDGE AGIUS:  Do you think 190 will be available tomorrow?

 3            MR. NICHOLLS:  What I've heard, Your Honour, is that he's not

 4    well.  When we tried to contact him today he was in his hotel room asleep

 5    and we couldn't talk to him.  I'll be in court until 7.00 tonight so I

 6    think it's unlikely that he will be ready tomorrow, but I don't frankly

 7    know.  I may talk to him at 7.00 tonight and he's suddenly will be better.

 8    He was taken to a hospital again this morning.  He was seen by a doctor

 9    again.  He was given more medication, is what I'm hearing second hand so I

10    just don't know when his health will improve.

11            JUDGE AGIUS:  I'm asking this because obviously if there is going

12    to be a proofing session which is going to be audio or videotaped, then

13    Mr. Bourgon amongst others, but particularly Mr. Bourgon, would want time

14    to listen to those tapes.

15            MR. NICHOLLS:  Yes, Your Honour.  I understand that.  It could be

16    that what happened with the last witness happens, the last witness it

17    turned out there wasn't much of a substantive audio recording because the

18    witness chose not to discuss matters further.  So I just don't know now

19    because I haven't spoken to the witness but you're quite correct, Your

20    Honour, if the witness is available then it would be late tonight that

21    anything was disclosed and that may not be good enough for Mr. Bourgon.

22            JUDGE AGIUS:  Okay.  Thank you.  Yes, Mr. Bourgon?

23            MR. BOURGON:  Thank you, Mr. President.  I just received an e-mail

24    seconds ago saying that the witness is back from the hospital and is

25    willing to see us tonight between 7 and 8.  If my colleague wants to

Page 18102

 1    proceed, we can be ready tomorrow morning.  Whatever fit is good for the

 2    Prosecution will be good for us.  Thank you, Mr. President.

 3            JUDGE AGIUS:  Yes, Mr. McCloskey?

 4            MR. McCLOSKEY:  Yes, I'd say we will be able to work this out but

 5    this does show one of the fundamental issues about taping things.

 6    Logistically, we really cannot do that on an everyday basis because it

 7    would require to us bring people in well ahead of time and it would change

 8    the entire layout of how witnesses are brought to the Court.  We are able

 9    to do that in this particular situation but to start a practice where we

10    have to tape and then transcribe and give days on notice for someone, this

11    would be completely impossible but we are able to do it in this situation,

12    on these short witnesses and will continue to work if -- and any time we

13    can but as a practice this is very difficult.  Just logistically.

14            JUDGE AGIUS:  Yes, Mr. Bourgon?

15            MR. BOURGON:  I would have preferred to avoid this kind of

16    argument this afternoon.  However, Mr. President, it may be difficult to

17    abide by the rules but we have rules in this Tribunal and the rule says

18    when you have a suspect and when you question a suspect you have to record

19    the interview with the suspect.  And I feel that it is inappropriate for

20    my colleague to raise this issue at this point in time when we have this

21    witness, they've agreed to interview him and to come back now and to say

22    that, yes, but just for this time and not for later, I think it's not

23    appropriate, Mr. President.  Thank you.

24            JUDGE AGIUS:  All right.  I think what we now have on the table is

25    this witness's possible proofing session and no one else's.  We'll talk

Page 18103

 1    about other ones later on, if it's the case.

 2                          [Trial Chamber confers]

 3            JUDGE AGIUS:  I might as well add that we haven't handed down a

 4    ruling on the procedure which ought to be followed.  This is going to take

 5    place in the present case of this witness, 190, because the Prosecution

 6    has accepted to do it on a limited basis, which was also acceptable to

 7    you.  There are other issues involved.  Later on we'll see and if it's the

 8    case of handing down a ruling we will do so.

 9            So we left yesterday with outstanding matter, namely, the

10    tendering process, exhibits.

11            MR. NICHOLLS:  None from the Prosecution, Your Honour.

12            JUDGE AGIUS:  Any from the Defence teams?  Didn't he mark --

13    because -- I think it was with Mr. Bourgon, yes.  Mr. Bourgon?

14            MR. BOURGON:  Indeed, Mr. President, there is one Exhibit

15    3DIC 192, which is the sketch of the Rocevic area on which the witness

16    indicated with six different numbers six different locations.

17            JUDGE AGIUS:  Okay.  Any objection?

18            MR. NICHOLLS:  None, Your Honour.

19            JUDGE AGIUS:  Any objection on the part of the Defence teams?

20    None.  So it's admitted.

21            I take it we are going to hear the evidence of Mr. Blaszczyk

22    today.

23            MR. NICHOLLS:  Yes, Your Honour, his cross-examination was

24    originally scheduled to continue on Friday and we are just moving it up a

25    day and all my friends have been informed.

Page 18104

 1            JUDGE AGIUS:  All right.  I understand there is a problem from the

 2    Beara team on cross-examining this witness because I understand that it's

 3    Mr. Ostojic that was supposed to handle it.  Is that correct?

 4            MR. MEEK:  Yes, Your Honour.  That is correct.  Mr. Ostojic

 5    started the cross-examination.  He would very much like to finish it, like

 6    I said yesterday due to some personal problems, he can't.  I've spoken

 7    with my colleagues and since this witness will be coming back several

 8    times, they have agreed they have no objection to that procedure to allow

 9    him to finish his cross-examination, if the Court would allow that, we

10    would appreciate it greatly.  We have a division of labour so to speak and

11    Mr. Ostojic started this witness.  He very much wants to finish the

12    witness and the client would like him to finish the witness.

13            JUDGE AGIUS:  Okay.  This time we are going to close a blind eye

14    on this because we would like to remind you all that the role of

15    co-counsel over the years, and particularly following an incident that I

16    myself had in Brdjanin, was clarified to make it definitive and very clear

17    that in the absence of lead counsel, co-counsel would or should be and

18    would be required to conduct the cross-examination of a witness or

19    examination-in-chief, for that matter.  But we understand that Mr. Ostojic

20    had already started the cross-examination and since he's had personal

21    problems to deal with, we are going to close a blind eye and reserve for

22    your Defence the continuation of the cross-examination by Mr. Ostojic at a

23    later stage.

24            MR. MEEK:  Thank you very much, Your Honour.  Certainly --

25            JUDGE AGIUS:  We don't want to you take it for granted that in the

Page 18105

 1    absence of either co-counsel or lead counsel the other counsel present in

 2    the courtroom says, no, I am not in a position to proceed, because it's my

 3    colleague who will be or who was supposed to be dealing with this and we

 4    have a division of labour, et cetera, et cetera.  That's not nice music

 5    for our ears.  I want to make it clear.

 6            MR. MEEK:  Yes.  Thank you, Your Honour.  I was just going to say

 7    that this certainly an exception to the rule and as you know, this is the

 8    first time we've requested this in over a year and I doubt it will ever

 9    happen again and I appreciate it very much.

10            JUDGE AGIUS:  I appreciate that, Mr. Meek.  Yes, Mr. Nicholls?

11            MR. NICHOLLS:  Thank you.  We did agree with Mr. Meek.  He's

12    correct but part of the agreement I just want to make it clear, Mr. Meek

13    will agree with me the remaining cross-examination is going to be 30

14    minutes or less.  That's part of why we agreed on this occasion.  That it

15    wasn't going to be a big long thing that we are putting off.

16            JUDGE AGIUS:  Okay.  Who is going next with the cross-examination,

17    before -- we still have to bring in but what I need to know is who is --

18    who will be cross-examining -- who is going to cross-examine

19    Mr. Blaszczyk?  Ms. Fauveau and how long do you think you will take?

20            MS. FAUVEAU: [Interpretation] Your Honour, I believe I will go

21    until the break.

22            JUDGE AGIUS:  Okay.  In the meantime, Madam Usher, you can bring

23    the witness in.  Who will follow after Madam Fauveau?  Don't rush.

24            MR. JOSSE:  As things stand at the moment, we are proposing to ask

25    a few questions and I mean a few.  Our estimate was 30 minutes.  It's

Page 18106

 1    likely to be significantly less than that.

 2            JUDGE AGIUS:  Okay.  It seems I will be able to celebrate

 3    Thanksgiving with the rest of you earlier than expected.

 4                          [The witness entered court]

 5            JUDGE AGIUS:  Let's wait for Mr. Blaszczyk.

 6            Good afternoon to you, Mr. Blaszczyk.

 7            THE WITNESS:  Good afternoon, Your Honour.

 8            JUDGE AGIUS:  We are going to proceed with cross-examinations

 9    today.  The idea was to conclude today but we cannot because one of the

10    lawyers, actually Mr. Ostojic, who was cross-examining you the last time,

11    is not with us today due to personal matters, reasons, and we will have to

12    postpone his continuation of the cross-examination until a later date but

13    I think we will be able to finish with all other cross-examinations today.

14    So you will only have to return for a short while at some later point in

15    time.

16            THE WITNESS:  Okay.  Thank you.

17            JUDGE AGIUS:  Today, Madam Fauveau, representing General Miletic,

18    will cross-examine you first.  Madam Fauveau.

19                          WITNESS:  TOMASZ BLASZCZYK [Resumed]

20                          Cross-examination by Ms. Fauveau:

21       Q.   Good afternoon, sir.  In your testimony of the 22nd [as

22    interpreted] of November on page 17438, that the document of the Drina

23    collection was sent to Mali Zvornik in 1998; is that right?  Is it fair to

24    say that the document -- the 2004 document was found in Milanovac?

25       A.   My testimony of the 2nd of November, I think.  The collection was

Page 18107

 1    sent to Mali Zvornik in 1988 and in 2004 the document was found in Gornji

 2    Milanovac in Serbia.

 3       Q.   Thank you for having corrected the date.  Do you know when these

 4    documents were forwarded from Mali Zvornik?

 5       A.   I don't know exactly.  We can assume that they were forwarded --

 6    they were taken to Gornji Milanovac but we have no confirmation of that.

 7       Q.   And you don't know whether they were forwarded directly from Mali

 8    Zvornik to Gornji Milanovac?

 9       A.   No, I don't know.

10       Q.   So you cannot exclude the possibility that the documents were kept

11    in several other places, notwithstanding --

12       A.   I cannot exclude that.

13       Q.   -- Mali Zvornik and Gornji Milanovac?

14       A.   I cannot exclude that possibility but we received information from

15    the government of Serbia, they were mention only transportation of this

16    collection from Mali Zvornik to Gornji Milanovac, nothing more.  But I

17    cannot exclude that they were kept somewhere else.

18       Q.   This information concerning the forwarding of the collection from

19    Mali Zvornik to Gornji Milanovac, when were you informed about this?

20       A.   We were informed about this in 2005, in the beginning of 2005.

21    But this is information we received official information from government

22    of Serbia, but, of course, yeah, we knew that the collection was in Mali

23    Zvornik until 1999, from the witness statement.

24       Q.   Yes, you're quite right.  Some witnesses did state that in the

25    spring of 1999 these documents were still in Mali Zvornik.  But as far as

Page 18108

 1    a period running from the spring of 1999 to December 2004, there is no

 2    information pertaining to the location where these documents might have

 3    been kept?

 4       A.   We have no statement with such information.

 5       Q.   Do you know who ordered the forwarding of these documents from

 6    Mali Zvornik?

 7       A.   From Mali Zvornik to Serbia, yeah?  Or somewhere?

 8       Q.   Yes, sir.

 9       A.   No, I don't know.

10       Q.   Therefore, you don't know who could access these documents once

11    they had left Mali Zvornik?

12       A.   No.  I don't know.

13       Q.   In your testimony of 2nd of November, 17419 and 17420 you said

14    that the Ministry of the Interior of the Republika Srpska and the Ministry

15    of Defence of Republika Srpska undertook an operation to retrieve these

16    documents, i.e. the Drina collection, to transfer them to Banja Luka.

17    Have I understood you correctly?  Was this a joint operation between the

18    Ministry of the Interior of the Republika Srpska and the MOD of the

19    Republika Srpska?

20       A.   Yes, you are correct.

21       Q.   Were the official bodies of the Serbian Republic involved in any

22    of this?

23       A.   From the information we received from authorities of Republika

24    Srpska and later on from Serbia as well, the official body of Serbia

25    were -- was involved, I think, it was autumn 2004, I think it was

Page 18109

 1    October.  Because the first time, about the -- okay, the first time

 2    information about existence of this collection came out in the meeting

 3    with Ministry of -- Minister of Interior of Republika Srpska, with the

 4    bodies of Serbia, in 2004, I think it was October.  And it was agreed at

 5    this meeting that the collection should be returned to Republika Srpska,

 6    to Bosnia.

 7       Q.   Do you have any minutes or any information pertaining to the

 8    information you've just provided us with?

 9       A.   No.  We received this information as a response of our request

10    to -- forwarded to Republika Srpska and also to Serbia.

11       Q.   Did you ever receive -- did you ever receive any official

12    information from the Republic of Serbia stating that the Republika Srpska

13    had taken hold of the collection in Mali -- in Gornji Milanovac?

14       A.   We received information, official information, from Republic of

15    Serbia that the collection was stored in Gornji Milanovac and was handed

16    over to the representative of Republika Srpska.

17       Q.   So you have a written document that would confirm this; is that

18    right?

19       A.   As I said, we have -- I'm pretty sure that we have a response for

20    our request, official request, from Serbia.

21       Q.   Does this mean that after the Republika Srpska official bodies

22    retrieved these documents and transferred them to Banja Luka, you filed

23    similar request and you addressed this to the Republic of Serbia?

24       A.   Yes.  This is correct.  When we got information that -- in fact,

25    when we received this archive in Banja Luka and then the archive was

Page 18110

 1    transported to Zagreb and then to The Hague, we requested Republika Srpska

 2    and also Serbia to give us more information about circumstances of this

 3    collection, how the collection was taken from Mali Zvornik to Gornji

 4    Milanovac and so on.

 5       Q.   I don't know if you can answer this question.  I don't know if

 6    you're the right person.  Could the OTP provide us with the answers they

 7    have received after having filed these requests, after the documents were

 8    sent to Banja Luka?

 9       A.   I am not sure that I'm right person to tell you but I'm pretty

10    sure that, yes, it's my opinion.

11            MS. FAUVEAU: [Interpretation] I would like to show the document

12    Exhibit number P2809, please.

13       Q.   In the meantime, I would like to confirm that you did see these

14    documents for the first time when they reached Zagreb; is that right?

15       A.   Okay.

16       Q.   The box we can see on this picture is the box, one of the boxes in

17    which the documents were transported and reached Banja Luka, and if I

18    understood you correctly, you have never seen this box in Banja Luka; is

19    that right?

20       A.   Yes.  I never seen these boxes but I saw the contents of these

21    boxes later on in Zagreb.

22       Q.   Do you know when these documents were found in Gornji Milanovac,

23    whether these documents were found in this container or were they

24    specifically put in these box for them to be forwarded to Banja Luka?

25       A.   From the information -- from the information we received, the

Page 18111

 1    documents were kept in these boxes, 16 boxes and only the boxes were taken

 2    to Bosnia-Herzegovina, to Banja Luka.

 3       Q.   But you don't know when these documents were actually put in the

 4    box, you cannot state whether they were put in the box in Gornji Milanovac

 5    or Mali Zvornik?

 6       A.   No, we don't have such information.  I don't know.

 7       Q.   And you don't know either who put them in the document -- in the

 8    box?

 9       A.   Yes, you are correct.  We don't know.

10       Q.   You said that 16 boxes were carried to Banja Luka, but two of

11    these boxes contained material not pertaining to the Drina Corps; is that

12    right?

13       A.   No.  This is not right.  There were 16 boxes containing the

14    documents, and another boxes delivered to Banja Luka field office - not

15    these boxes but cardboard boxes - contained the tapes.  These boxes with

16    tapes were delivered to Banja Luka field office one day later, on the 14th

17    of December 2004.

18       Q.   So in all, in Banja Luka, on those days, on the 13th and 14th of

19    December, there would have been 18 boxes?

20       A.   There were 16 boxes, wooden -- actually -- in fact, 15 wooden

21    boxes, one aluminium box containing the documents plus two boxes,

22    cardboard boxes containing the tapes.

23            MS. FAUVEAU: [Interpretation] Can we please show the witness

24    Exhibit 5D434?

25       Q.   This is a statement stating that the following items were

Page 18112

 1    delivered.  It's similar to the receipt for the 16 boxes.  And this has to

 2    do with the two boxes received in Banja Luka on the 14th of December 2004.

 3    This declaration on receipt of materials, does it confirm the reception of

 4    these two separate boxes which did not pertain to the Drina Corps?

 5       A.   Yes, you are correct.

 6            MS. FAUVEAU: [Interpretation] Could we now please show the witness

 7    Exhibit P2807?

 8       Q.   While the exhibit is being shown, we have these two boxes plus 16

 9    boxes pertaining to the Drina Corps.  So all in all, 18 boxes; is that

10    right?

11       A.   Yeah, that is right.

12       Q.   Here, we have the declaration on receipt of materials for 16

13    boxes, as it is written at the top of the page, and here at the bottom

14    part of the page, I would like to show, if you can scroll it down, the

15    handwritten part.  It appears that the 16 boxes were opened and then

16    repacked into 24 boxes.  Already last time, you stated that the boxes had

17    been reopened and repacked into new boxes.

18       A.   You want me to comment this document?

19       Q.   I just want you to confirm that these 16 boxes were actually

20    repacked into 24 boxes?

21       A.   This is mistake done by the investigator Tollefsen because in fact

22    that 16 boxes containing that documents were repacked into 23 boxes and

23    this 24th boxes consists of these two boxes containing the tapes seized in

24    other operation.

25       Q.   So you were not in Banja Luka when the document was written?

Page 18113

 1            MR. NICHOLLS:  Asked and answered about eight times.

 2            JUDGE AGIUS:  Correct.

 3            MS. FAUVEAU: [Interpretation] This is a question that I have to

 4    ask for my next question.  But I'll move on directly to my next question.

 5       Q.   Then how can you know that there was a mistake in the document?

 6    There was no mistake when the boxes reached Zagreb and you received 23

 7    boxes?

 8       A.   This is not mistake because I was present when the boxes arrived

 9    to Zagreb field office and probably we checked these boxes, we received

10    also information how many boxes arrived.

11       Q.   How did these boxes travel from Banja Luka to Zagreb?

12       A.   They travel with UN truck with escort with one of the security

13    officer, UN security officer.

14       Q.   And you were not present during their transport?

15       A.   I was not present during the all transport but I was present when

16    the truck arrived to Zagreb field office.

17       Q.   And when the boxes arrived, how many boxes were there altogether?

18       A.   There were altogether, there were 24 boxes.

19       Q.   And when you opened these 24 boxes, let me rephrase my question.

20    Were the 24 boxes which arrived, were they marked with their content?  Do

21    you know -- did you know before opening them what was inside those boxes?

22       A.   No, I didn't know.

23       Q.   Therefore, when you received those 24 boxes, you didn't know which

24    one did not include material pertaining to the Drina Corps?

25       A.   As far I remember, I received information that one box contained

Page 18114

 1    tapes seized in other operation not connected to Drina Corps collection.

 2       Q.   Do you remember who provided you with that information?

 3       A.   I was in touch with my supervisors in The Hague and also with the

 4    investigator on the field in the Banja Luka field office, and -- yeah.

 5       Q.   Do you remember today who gave you that specific information on

 6    the fact that one of these boxes contained the video and audio recording?

 7       A.   No.  I don't remember right now exactly who of these persons give

 8    me this information but it is possible that also this information was

 9    received by the head of the office who actually was recipient of this

10    stuff in Zagreb field office.

11       Q.   Did anybody ever tell you that in the declaration there was a

12    mistake, that the actual number of boxes did not match the declaration?

13    I'm referring to the handwritten part at the bottom of the document.

14       A.   No.

15            MS. FAUVEAU: [Interpretation] Now, could we show the witness

16    Exhibit P192, please?  Can we show the original document in the B/C/S

17    version, please?

18       Q.   Can you confirm that this document was found in the Drina Corps

19    collection?

20       A.   I recognise these documents, yes.

21       Q.   Can you recognise this document because of its ERN number?

22       A.   Not only.  On the bottom of this document there is, I think, the

23    signature of one of the witness who testified to this Court before, and

24    this document was shown, if I could remember, to the witness during his

25    interview.

Page 18115

 1            JUDGE AGIUS:  One moment.

 2                          [Trial Chamber and registrar confer]

 3            JUDGE AGIUS:  Go ahead, Madam.

 4            MR. NICHOLLS:  I don't know if that's what you were asking about,

 5    Your Honour, the witness is not protected.

 6            JUDGE AGIUS:  All right.  Okay.  Okay.  Then go ahead.

 7            MS. FAUVEAU: [Interpretation]

 8       Q.   Therefore, you recognise this document today because you've had

 9    the opportunity to see it when it was shown to the witness?

10       A.   Yeah.  I remember these documents was shown to the witness as well

11    but I remember also in Zagreb because these documents were part of small

12    binder.  There were a few documents in one place, collected, and I

13    remember seeing this binder in Zagreb.

14       Q.   You said, I believe, that there were over 300.000 pages when the

15    documents reached Banja Luka and then Zagreb?

16       A.   Yes, you are right.

17       Q.   And you didn't have time to take an inventory of these documents?

18       A.   You are right.  I have no time to make an inventory of these

19    documents but as I told before, I just made a copy of few documents, I

20    mean on the copy machine, which looked for me very interesting, and I

21    never seen it before, and this is one of these documents, and I remember

22    very well this binder.

23       Q.   So if I understand you correctly, you don't remember each of the

24    300.000 pages but you remember that document specifically?

25       A.   I remember the binder, and I am sure that these documents belong

Page 18116

 1    to this binder.

 2       Q.   If we assume that the document actually came from the Drina Corps

 3    collection, you said earlier that to your knowledge the document in Gornji

 4    Milanovac were kept in the boxes in which they arrived at Banja Luka.  Do

 5    you know whether the documents in these boxes were classified on the basis

 6    of documents remaining pending?

 7       A.   I don't think so.

 8       Q.   I believe there is a problem with interpretation.

 9            Do you know if in Gornji Milanovac the documents in the boxes were

10    archived by category of documents received, documents sent, or documents

11    to be dealt with?

12       A.   On the base of information we received from Serbia, no.

13       Q.   On the basis of the fact that these documents were found, and

14    please do not take into account what you may have heard from witness

15    depositions, so on the basis of these documents, you could not know

16    whether these documents were sent or received by the Drina Corps, could

17    you?

18       A.   This is visible for me that the documents were created in Drina

19    Corps units and on the Drina Corps itself.  It should came from Drina

20    Corps collection, the archive.  They were created or were sent through the

21    units of the Drina Corps.

22       Q.   Okay.  But actually what I meant was that it's impossible for you

23    to assert whether it was one thing or another, whether they were sent or

24    received?

25       A.   I see that from the documents, from the notes on the documents,

Page 18117

 1    that the documents were used by the -- let's say, let's -- sent by the

 2    units of Drina Corps or was sent from Drina Corps itself or the Drina

 3    Corps unit received some of these documents, it was visible for me that

 4    they are documents from Drina Corps collection.  And also in information

 5    we received from Serbia, there was mentioned that this was the collection

 6    who was first kept in Mali Zvornik but no more explanation how it was kept

 7    over there -- I mean, how was transported from Mali Zvornik to Gornji

 8    Milanovac -- but they refer to the same documents, from Mali Zvornik and

 9    then finally the documents were found in the barracks in Gornji Milanovac.

10            MS. FAUVEAU: [Interpretation] Can we now please show the witness

11    Exhibit P2869?  I don't believe that's the exhibit I asked for.  That

12    might be my mistake.

13       Q.   The right document is the document on your right, number 042303.

14    Now we have the correct English version.  This is not a -- it's not a

15    document from the Drina Corps collection.  I just want to ask you whether

16    you know where that document comes from.

17       A.   Yes, I know.

18       Q.   Can you tell me where the document comes from?  How did you

19    receive it?

20       A.   Yes, we received this document from one of our witnesses, the

21    member of the 10th Sabotage Detachment.

22       Q.   And when this person gave you the document, did that person give

23    you the original document?

24       A.   As far I recall right now, we received first the copy of this

25    document, then I think we received the original of this document.

Page 18118

 1       Q.   And the original document was given to you by the same person?

 2       A.   I am not recall exactly but it's possible that it was given to me

 3    by the same person but it was given to me by the member of the 10th

 4    Sabotage Detachment as well.

 5       Q.   Have you ever asked that person how he had obtained the document?

 6       A.   For sure I did.

 7            MS. FAUVEAU: [Interpretation] Can we show the witness Exhibit P --

 8    5D432?

 9       Q.   Would you agree to say that this particular information report has

10    to do with the reception of the document?

11       A.   Yes, I agree.

12       Q.   If we look at the last page, we could conclude that the person had

13    the original document?

14       A.   Yes.

15       Q.   And you told me that you asked that person how he had got hold of

16    the document.  Why isn't the information written out in the report?

17       A.   It's not written out.

18            MS. FAUVEAU: [Interpretation] Thank you.  I have no further

19    question, Your Honour.

20            JUDGE AGIUS:  Thank you, Madam Fauveau.  Who is next?  Mr. Josse?

21            MR. JOSSE:  Well, I'm going to be even quicker than I had promised

22    earlier because most of the matters I was going to ask have just been

23    explored.

24                          Cross-examination by Mr. Josse:

25       Q.   Just want to ask you this, please, sir.  By the way, I represent

Page 18119

 1    General Gvero.  Have there been any developments in the last month in

 2    relation to these Drina Corps documents?

 3       A.   You mean developments in receiving information how we received

 4    these documents or whereabouts did these documents between 1999 and 2004?

 5       Q.   That would be a good start, yes.

 6       A.   No.  I don't recall, at least I don't know.  No.

 7       Q.   Nothing that's come to your attention?

 8       A.   No.

 9       Q.   As the chief investigator you're still in charge of any inquiries

10    in relation to the veracity of these documents; is that correct?

11       A.   I am not chief investigator, I am leading investigator in this

12    team because I am the oldest investigator in this team.

13       Q.   What's the difference, please, between that and chief

14    investigator?

15       A.   Chief investigator this is the person responsible for all

16    investigation between the OTP.

17       Q.   I see.  So it's me using the wrong technical terminology, correct?

18       A.   Yes.

19       Q.   You're the lead investigator for this case; is that correct, at

20    the moment?

21       A.   At the moment, yes.

22       Q.   And you took over that role when Mr. Ruez departed; is that

23    correct?

24       A.   No, it's not correct.

25       Q.   No?

Page 18120

 1       A.   After Mr. Ruez departed, Alistair Graham became the team leader or

 2    lead investigator also for this investigation.  After him it was

 3    Bruce Bursik and when Bruce left, I was the oldest one.

 4       Q.   So any information in relation to these documents would come to

 5    you at the moment; is that correct?

 6       A.   Not necessary because not only Srebrenica team was involved in

 7    this collection or any archives but also another teams, it's possible

 8    another teams some information but I have not --

 9       Q.   Help us, please, with which teams that may be and the names of the

10    investigators who would be responsible in those particular teams, if you

11    can?

12       A.   I remember that the people from team A was very involved to get

13    all necessary information, how the documents ended up in Serbia and all

14    the circumstances.

15       Q.   And what's team A, please?  What's it mean to those of us not in

16    the know?

17       A.   Okay.  Yeah.  The OTP is divided for the teams, team A is the team

18    who used to work also with Slobodan Milosevic case.

19       Q.   And could we have the name of the lead investigator in team A, if

20    you know it?

21       A.   The team leader of team A left the Tribunal already, Yves Roy, but

22    who is team leader right now, really, I don't know.

23            MR. JOSSE:  Thank you.

24            JUDGE AGIUS:  Thank you, Mr. Josse.  According to my records, the

25    Popovic and the Borovcanin team do not wish to cross-examine this witness.

Page 18121

 1            Nikolic Defence team, Mr. Bourgon?

 2            MR. BOURGON:  Thank you, Mr. President, I do have a few questions.

 3            JUDGE AGIUS:  Go ahead.

 4                          Cross-examination by Mr. Bourgon:

 5       Q.   Good afternoon, sir.

 6       A.   Good afternoon.

 7       Q.   You are aware that Major Obrenovic, when he was accused before

 8    this Tribunal, provided documents to the Prosecution on at least two

 9    occasions; is that correct?

10       A.   Yes.  This is correct.

11       Q.   So he provided documents immediately after pleading guilty in May

12    or June of 2003?  Are you familiar with that?

13       A.   I know that he provided documents in June 2003, and the next batch

14    of the documents provided actually not by him but his lawyer, it was

15    September 2003.

16       Q.   Thank you for that.  And you're correct, these documents were

17    provided indeed through his counsels.  Now, among these documents, I take

18    it you're familiar with the fact that there were some daily combat reports

19    which were sent from the Zvornik Brigade; is that correct?

20       A.   It's possible, yes.

21       Q.   Is it possible or are you familiar with that?  Did you look at

22    those documents that were given by Obrenovic to see what was in those

23    documents?

24       A.   I look at these documents for sure but not recently.

25       Q.   And when you looked at it, were you interested to find out whether

Page 18122

 1    you had all the documents -- let me strike this question.  When you

 2    receive the Drina Corps archives, when you took possession, and after the

 3    exercise of scanning and giving numbers to each of these exhibits, my

 4    question is the following:  Did you find daily combat reports and other

 5    documents sent from Zvornik Brigade?

 6       A.   Yes, we did.

 7       Q.   And when you saw these documents being sent from Zvornik Brigade,

 8    did you notice that these numbers -- that these documents were numbered in

 9    a sequential manner?  Is that one of your observations?

10       A.   Yes, yes.

11       Q.   And seeing that there was a sequential order to all these

12    documents sent from the Zvornik Brigade, my question is:  Did you try to

13    collate all the documents to see how many and which ones you were missing?

14    For example, July 1995?

15       A.   I don't recall exactly, but yeah, for sure, we noticed that some

16    documents are missing and we were sure that also a few of that documents

17    are in our possession already.

18       Q.   Now, what I'm referring to is the documents from the archives,

19    let's set aside for now Major Obrenovic, I'll come back to him, but the

20    documents you have from the archives, did you -- did you make a report,

21    did you make the exercise of finding out how many documents you are

22    missing for July of 1995 based on that sequential order?

23       A.   No, I didn't.

24       Q.   To your recollection did anyone in the Office of the Prosecution

25    in the investigator's team did anyone perform such an exercise?

Page 18123

 1       A.   It was analysed for sure.  It's possible that one of our analysts

 2    was involved in this project but I have no details about it.

 3       Q.   So you can't share with us today how many documents you are

 4    missing, I'm talking the documents sent from the Zvornik Brigade in July

 5    of 1995?  This is not something you can share with us today?

 6       A.   Yeah, this is correct.  I cannot.

 7       Q.   With -- you will have to come back for further cross-examination.

 8    Is this something that you can share with us when you come back for

 9    further cross-examination?

10            JUDGE AGIUS:  Yes, Mr. Nicholls?

11            MR. NICHOLLS:  I think requests like that should probably be made

12    to us, to the OTP, and we will do what we can.  Of course, I can't talk to

13    this witness about it but I don't think it's appropriate for counsel to

14    ask for the witness to do some kind of homework assignment before he comes

15    back for cross by Mr. Ostojic.

16            MR. BOURGON:  Mr. President, maybe my colleague does not

17    understand where I'm coming from.  I'm not asking him to do it from now

18    on.  I'm trying to know whether this was something performed as part of

19    the investigation in this case.  And if it was, can he bring the result

20    next time?  I'm not asking him to do any work from now until then.

21                          [Trial Chamber confers]

22            JUDGE AGIUS:  Yes, Mr. Nicholls?

23            MR. NICHOLLS:  Well, just -- he is asking him to do some work, and

24    that would require since the witness has answered the question that he

25    doesn't know, it would require him to talk to other team members about

Page 18124

 1    his -- the subject of his testimony, which we have agreed not to do.  So I

 2    think that my friend should just stick to asking questions and taking the

 3    answers.  If he has any requests of us, we will talk to him about that.

 4            JUDGE AGIUS:  The problem, as I see it, Mr. Bourgon, is the

 5    following:  Your first question was asking for a confirmation from the

 6    witness that really can't tell you how many documents may be missing or

 7    are missing from this collection.  He told you that he has no details

 8    about it, he can't tell you more than that.  You then clarified, and I

 9    don't think you really needed to clarify because it was clear to us

10    already, that you're not asking him to do something else from now on,

11    you're just trying to elicit from him whether this was an exercise

12    performed as part of his investigation or the OTP's investigation in this

13    case and if it was can he bring the result next time.  How can he do that

14    without consulting with the rest of the investigations team?

15            MR. BOURGON:  Consulting to see if someone did it 'cause he

16    mentioned - I don't have the exact line right now, Mr. President - but

17    what I have what he answered to me is that he believes this is an analysis

18    that was performed.  I'm trying to get whether by consulting with the

19    others, of course, see if the analysis was actually done.  That's what I

20    want to know.

21            JUDGE AGIUS:  He never said that he believes that this is an

22    analysis that has been done.  He said it's possible that one of our

23    analysts was involved in this project.  But I do not have details about

24    it.  Yes, Mr. McCloskey?

25            MR. McCLOSKEY:  Mr. President, I can share that information with

Page 18125

 1    Mr. Bourgon and others, as I know it.  I can do it after court.  I can do

 2    it in front of court.  At any time.  And we are always open for that.

 3            JUDGE AGIUS:  Okay.  Shall we move, Mr. Bourgon?

 4            MR. BOURGON:  Yes, Mr. President I've only got a few more

 5    questions for this witness.

 6            JUDGE AGIUS:  Go ahead.

 7            MR. BOURGON:  Thank you, Mr. President.

 8            JUDGE AGIUS:  Thank you, Mr. McCloskey.

 9            MR. BOURGON:

10       Q.   When you received those documents that were handed to the

11    Prosecution by Mr. Obrenovic, you mentioned earlier that some of these

12    documents you already had; is that correct?

13       A.   But I think we had already at least a copy of or we have documents

14    with the same contents, but I don't recall now which one but I'm pretty

15    sure that we had already.

16       Q.   Okay.  Your answer was, and that was on page 29, lines 18 to 20,

17    "I don't recall exactly but yeah, for sure we noticed that some documents

18    are missing and we were sure that also a few of that documents are in our

19    possession already."  So what you're saying is that a few documents with

20    the same contents but not the exact same documents?  Is that what your

21    answer is today?

22       A.   Maybe it was the same document but sent to another unit that say

23    the documents was sent to Bratunac Brigade or to Zvornik Brigade.  We may

24    received one of these documents.

25       Q.   And my next question is:  From having included the documents given

Page 18126

 1    to the Prosecution by Mr. Obrenovic, can you or are you in a position to

 2    confirm that there are still gaps and documents that you are missing, and

 3    again I'm referring specifically to documents sent by the Zvornik Brigade

 4    or from the Zvornik Brigade in July of 1995?

 5       A.   I'm not in such position.  I cannot confirm, I cannot -- no.

 6       Q.   And to your recollection, were any questions ever put by you or

 7    somebody in your investigation team to Mr. Obrenovic as to why there were

 8    still gaps in the -- in the number of documents sent by Zvornik Brigade in

 9    July of 1995?

10       A.   I don't know if this question was put to Mr. Obrenovic but it's

11    possible that there are gap and we are also -- yeah.  I remember that the

12    OTP also conducted operation in Zvornik Brigade and Bratunac Brigade and

13    they found few documents at that time, and probably these documents were

14    never handed over, you know, to the Drina Corps collection when the Drina

15    Corps collection -- archive was collected by Drina Corps command.

16            JUDGE AGIUS:  Yes, one moment, Mr. Bourgon.

17            MR. BOURGON:  My last question, Mr. President --

18            JUDGE AGIUS:  Yes, Mr. Nicholls?

19            MR. NICHOLLS:  It's no objection, just to clarify, a little bit

20    complicated.  My friend asked did you see that when you said earlier when

21    you received some documents from Mr. Obrenovic you realised that you

22    already had copies of those and then read back an answer from page 29 at

23    line 18.  There on page 29 at line 18, the witness was actually answering

24    that when he went through the documents received from the Drina Corps

25    collection, he noticed that there were copies so I -- just for clarity, I

Page 18127

 1    think that was not clear.

 2            JUDGE AGIUS:  Yes, Mr. Bourgon?  I think it's clear enough.

 3            MR. BOURGON:  Thank you, Mr. President.  I'll move on.

 4       Q.   As the investigator in this case, you are familiar with the fact

 5    that some documents from the Zvornik Brigade were obtained from at least

 6    three sources, and a search conducted at the Zvornik Brigade area?  You're

 7    familiar with that?

 8       A.   I know about this -- these events, yeah.

 9       Q.   And you know that documents were given by Major Obrenovic on at

10    least two occasions?

11       A.   Yes, I know.

12       Q.   And you're familiar with the results of the documents you obtained

13    from the Drina Corps archives which you had a chance to look at; is that

14    correct?

15       A.   Yes.

16       Q.   Now, looking at those, all those documents, if there are still

17    some gaps in the documents sent from Zvornik Brigade in July of 1995, were

18    you able to come up with any explanation?

19       A.   This can be an explanation, somebody else except Major Obrenovic

20    or General Miletic or whoever had access to this Drina Corps collection

21    could get these documents but we can -- we have no confirmation of it.

22            MR. BOURGON:  Thank you.  I have no further questions.

23            JUDGE AGIUS:  I thank you, Mr. Bourgon.

24            Mr. Sarapa?  Mr. Sarapa, do you have any cross-examination for

25    this witness?

Page 18128

 1            MR. SARAPA:  No, we don't have any questions.  Thank you.

 2            JUDGE AGIUS:  Which means we need to stop here, basically, because

 3    I'm not asking you for re-examination before Mr. Ostojic finishes.

 4            Mr. Blaszczyk, that's all for today.  I apologise for the

 5    inconvenience that you will have to return but it's something that we

 6    couldn't avoid and we do appreciate your patience with us.  Thank you.

 7            THE WITNESS:  Thank you, Your Honour.

 8                          [The witness stands down]

 9            JUDGE AGIUS:  It's time for the break in any case.  Is there any

10    other further business that we can transact today?

11            MR. JOSSE:  Well, I'm hoping that we're going to get this

12    explanation from Mr. Thayer that we were promised at the start of the

13    proceedings.  It would be of some assistance to the Gvero team if we had

14    that explanation prior to deciding on our submissions.

15            JUDGE AGIUS:  Yes.  Yes, Mr. McCloskey?  Thank you, Mr. Josse.

16    Can Mr. Thayer come down?

17            MR. McCLOSKEY:  I think he's proofing at the moment.  And we

18    now -- we know he's read the e-mail so I think we can get him during the

19    break.  We would like to see where he is in the proofing session and I can

20    provide part of an answer, though this is obviously not going to be

21    satisfactory but I can begin but I think we should have Mr. Thayer in

22    after the break.

23            JUDGE AGIUS:  Okay.  We'll have a 25 minute break and then we'll

24    hear what Mr. Thayer has to tell us.  And then we adjourn after that.

25    Half an hour?  Half an hour break.

Page 18129

 1                           --- Recess taken at 3.45 p.m.

 2                           --- On resuming at 4.20 p.m.

 3            JUDGE AGIUS:  Let's start with you, Madam Fauveau.  Your request

 4    for certification, we've discussed.  It's granted.

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

 6            JUDGE AGIUS:  And you follow it up from there.  It's not going to

 7    be followed by any written decision.

 8            That's number 1.  Mr. Thayer, yes.

 9            MR. THAYER:  Good afternoon, Mr. President.  And Your Honours.

10            JUDGE AGIUS:  Salvage operation.

11            MR. THAYER:  Good afternoon, everyone.

12            The motion that we filed, I think, sets forth the factual

13    background pretty clearly and if we look at page 2 and actually look at

14    the 12 items which we've listed as proposed exhibits and for which we are

15    seeking to add to the 65 ter list, eight of them were in fact listed as

16    exhibits for General Nicolai on the 16 October submission of exhibits and

17    witnesses for the remainder of the Prosecution's case.  So they have been

18    on that list for over a month.

19            In addition -- and I can tell you which numbers those are.  Those

20    are numbers 2, 3, 4, 5, 6, 8, 9 and 10.

21            Also on the issue of notice, Your Honours, as we stated in the

22    motion, items 1, 2, 3, 4, 6, 8, and 9 were all specifically referred to by

23    ERN and discussed substantively in the witness's OTP witness statement and

24    were disclosed with that witness statement on 16 December 2005.

25            So again, there is no question of notice.  These are all exhibits

Page 18130

 1    which were explicitly discussed in this witness's -- and we are talking

 2    about witness number 31 -- in his OTP witness statement.

 3            Now, in fact, as I was getting ready for both of these witnesses,

 4    I noticed that some of those exhibits had been disclosed to the Defence

 5    under more than one ERN, which happens from time to time, documents from

 6    different collections, even though they are identical get marked with

 7    different ERNs.  So a couple of days ago, just so there would be no

 8    confusion when it comes to calling for exhibits on e-court by either

 9    party, I went ahead and made hard copies of every single document that was

10    referred to in that OTP witness statement, although they had all been

11    disclosed previously almost two years ago.  I made copies of all those

12    documents and placed them in Defence counsel's locker just so we were all

13    working off exactly the same ERN numbers, again, so there would be no

14    confusion.  So with respect to those exhibits, again, I don't think there

15    can be any credible claim of surprise or having to fish around EDS or

16    anywhere else.  It's all been in front of Defence counsel for a long time

17    and again, those numbers that I referred to at the outset were all listed

18    on our 16 October submission.

19            Now, there are a couple of documents, four, which were not listed

20    on the 16 October submission, and with respect to those, let me just

21    review item number 1, the notes of the telephone conversation on the 8th

22    of July at 0830 hours, again, that was part of the documents that were

23    referred to explicitly in the OTP statement.  I had not originally

24    intended to use that as an exhibit in the examination-in-chief of that

25    witness, but I think as we saw in the cross-examination of General Smith,

Page 18131

 1    the issue of protests to the warring parties, what was done in response to

 2    certain actions by warring parties, for example, I think questions were

 3    put to General Smith, well, when the Muslims did X, what did you do then?

 4    This is an example of a phone call that was placed by General Nicolai to

 5    the Armija specifically to complain about actions that they took that

 6    resulted in the death of a Dutch soldier.  I thought that became relevant

 7    during the course of the cross-examination of General Smith and that is

 8    why that has been added at this point.

 9            That is the same rationale with respect to item 7, a protest

10    letter from General Janvier to General Mladic, again, the issue of protest

11    letters being issued during this time period.  And I'll note that we

12    listed in our October 16th submission some other letters of protest from

13    UNPROFOR headquarters to, for example, General Delic protesting certain

14    conduct by the Armija against DutchBat, in fact, I've -- to try to save

15    time I've taken a couple of those items off the list so we don't have to

16    have so many of these letters of protest.  But, again, the issue is not

17    one of surprise and is one that clearly the Defence has been interested in

18    as evidenced by their cross-examination of General Smith.

19            That leaves items 11 and 12.  Again, which have both been

20    disclosed in connection with David Harland.  They are Sector Sarajevo

21    weekly situation reports from the civil affairs office.  I don't think

22    anybody here is surprised by these reports.  We've made liberal use of

23    David Harland's reports.  These two reports specifically concern events

24    during the VRS attack on Zepa.  And these were added in response to

25    specific questions on cross-examination of General Smith pertaining to

Page 18132

 1    complaints or allegations, reports, by the Ukrainian battalion that they

 2    had been fired upon by VRS forces.  In fact, those complaints and their

 3    credibility was placed in direct question during the cross-examination of

 4    General Smith.  And in getting ready for these two witnesses, these two

 5    documents I selected to address that issue with Witness 31, who, I think,

 6    is well-placed given that he was Chief of Staff and was operationally

 7    involved in events during this period of time to talk about these two

 8    reports.  Again, these aren't reports that have never been disclosed.  I'm

 9    happy, as I did with all of the other documents that were referred to in

10    the OTP witness statement, to make hard copies of any of these 12

11    documents that my friends can't readily find, but I honestly can't see how

12    anybody had to go on a hunting expedition for these but I will do what I

13    can, as I've done in the past, to try to make life a little bit easier

14    where I can.  I'll make those hard copies available, whatever my friends

15    need by the close of business day.  They are -- we can go right now,

16    anybody that wants, I can go to a copier and give them copies.  Again, we

17    are responding to issues that are raised during the course of the trial.

18    There is no notice issue here.  These are items that have been long ago

19    disclosed and are in most cases, as you can see from this list,

20    specifically referred to by these witnesses in their witness statements.

21            Now, why they didn't get a 65 ter number back in April of 2006,

22    all I can do is repeat what I've said on more occasions than I care to

23    recall.  Would it have been perhaps a better practice to go through each

24    and every witness statement of each and every witness on our witness list

25    and slap a 65 ter number on each and every document that's referenced in

Page 18133

 1    the witness statement and put that on our 65 ter list and to do the same

 2    with respect to other exhibits that are coming up in prior testimony?

 3    Perhaps.  Perhaps that would have been better to do.  But at the same time

 4    the risk then is that our 65 ter exhibit list has to be burned on to five

 5    DVDs and it becomes an impenetrable, incomprehensible, unduly burdensome -

 6    to use the language of civil practice - exercise.  And that's I think we

 7    have hoped to make clear, that's something that we have no interest in

 8    engaging in on this side.  If anything, what we've done is we have cut our

 9    exhibit lists too narrow and our witness list too narrow as the Court can

10    see from our request to add witnesses that, as we've gone through the

11    trial, we realise we should have put on to begin with but took off in our

12    zeal to present a streamlined case to this Court.

13            JUDGE AGIUS:  Thank you, Mr. Thayer.  Mr. Josse?

14            MR. JOSSE:  Three brief observations.  First of all, speaking for

15    myself, that is helpful and informative.  We are grateful and we can work

16    on those submissions.

17            Secondly, I was going to suggest that it would have been useful if

18    we had been provided with hard copies of all 12 documents and I will

19    certainly take up my learned friend's offer in relation to that.  But

20    beyond that, I'll reserve my position, if I may, until Monday as the Trial

21    Chamber had previously indicated.

22            JUDGE AGIUS:  Thank you.  I take it that you will read into that

23    as meaning that all the others would appreciate having the same copies

24    available.  We are not talking of a big volume of documents here.

25            And then we'll reserve your position until Monday and as well our

Page 18134

 1    decision on the question on Monday, if it's necessary to go that far.

 2            All right?  Okay.

 3            Any further business?  Do we have an idea as to whether 190 is

 4    coming over tomorrow?

 5            MR. McCLOSKEY:  We are speaking to him right now or will soon be

 6    speaking to him based on what we've heard so, hopefully, he's good enough

 7    to see people now.  So we are hopeful but we don't have any confirmation

 8    yet.

 9            JUDGE AGIUS:  Okay.  Anyway, we'll be here available tomorrow

10    morning to start the sitting at 9.00 as scheduled.  All right?  Thank you.

11    Is there any other business you wish to transact?

12            MR. McCLOSKEY:  Mr. President, we -- in the event that the person

13    is not well, we do have one exhibit that requires an investigator to talk

14    about and we have begun discussions with the Defence about that, and it's

15    a book, we call it the Muslim identification book.  It's pictures of

16    Muslims taken from the various videos at Potocari and other places and

17    where some people have been identified as being alive and some have been

18    identified as missing or dead and we could put an investigator on

19    tomorrow, if that is going to be a contested issue.  Mr. Ruez has

20    testified about this, if anyone can recall back that far, but we do need

21    an investigator to lay out the process of how these various

22    identifications have been made if there is a challenge.  I've begun to

23    remind my colleagues on the aisle what this exhibit is and I'm sure they

24    are looking at it and will have a view on it either tonight or tomorrow.

25            JUDGE AGIUS:  Okay.  We'll be here tomorrow morning at 9.00 and

Page 18135

 1    we'll see what happens then.  All right.  Thank you.

 2                           --- Whereupon the hearing adjourned at 4.35 p.m.,

 3                          to be reconvened on Friday, the 23rd day of

 4                          November, 2007, at 9.00 a.m.