Tribunal Criminal Tribunal for the Former Yugoslavia

Page 25498

 1                           Wednesday, 10 September 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The accused Popovic not present]

 5                           --- Upon commencing at 9.04 a.m.

 6             JUDGE KWON:  Good morning, everybody.  Judge Agius will not be

 7     with us for the remainder of the week and probably on Monday next week

 8     due to an urgent personal matter that he has to attend to.  And so as we

 9     said yesterday, we'll be sitting -- carry on sitting pursuant to 15 bis.

10             And Mr. Popovic is not with us today as was indicated yesterday

11     with his waiver.  I was informed, Mr. Ostojic, that you have a

12     preliminary to raise?

13             MR. OSTOJIC:  I do.  Good morning, Your Honours.  Two quick

14     points if I may.  The first point is that we've consulted with my friends

15     from the office the Prosecution.  We would like to have the next witness,

16     Mr. Bienenfeld appear on testify immediately after Professor Wagenaar and

17     before Professor Gogic.  He was scheduled after, but his personal

18     business commitments have required him to go back to Croatia, and he's

19     asked me to see if we can fit him in.

20             JUDGE KWON:  Speaking for myself, unless there's any opposition

21     from the parties or in particular the Prosecution, there's no reason for

22     the Chamber not to allow it.

23             MR. OSTOJIC:  Thank you.  The next point is our last witness,

24     which will hopefully commence tomorrow sometime.  I think his number is

25     2DW80 if memory serves me correct.  We did not file a motion for

Page 25499

 1     protective measures.  We prepared one late last night.  I'm still looking

 2     at the draft and hope to get that to the Court today.  There are some

 3     circumstances upon which we believe that protective measures are

 4     necessary for this witness including several police reports, I think two,

 5     actually, that we attached to the motion.  He lives outside of the former

 6     Yugoslavia, and we can explain that to the Court once you receive the

 7     motion later this afternoon.  But I just wanted everyone to be aware of

 8     it.  It will be an emergency motion that we're filing, and it's, I

 9     believe, the only one we filed with any of our witnesses, and we think

10     it's reasonable, but we'll let the Court decide.

11             JUDGE KWON:  It may be difficult for the Prosecution to respond

12     without seeing the actual motion, but we'd like to have it as soon as

13     possible.

14             MR. NICHOLLS:  We'll respond very quickly once we see the motion,

15     Your Honours.

16             MR. OSTOJIC:  Finally, Mr. President, if I may, just -- if I can

17     be given an opportunity to have a 5-minute break after Professor Wagenaar

18     concludes so that we could readjust some of our binders and remove some

19     the documents with respect to the current witness, Professor Wagenaar.

20     Even though it may not be time for the break, we would be asking for that

21     because we have other people who are going to come in instead of our

22     current staff here for the next witness.

23             JUDGE KWON:  By all means.

24             MR. OSTOJIC:  Thank you.

25             JUDGE KWON:  Since we are dealing with preliminary matters, there

Page 25500

 1     are some matters outstanding with respect to Nikolic Defence.  The

 2     Chamber is seized of a motion in relation to protective measures with

 3     respect to some -- several witnesses, and the Chamber is under advisement

 4     and will be issuing the decision in due course.  However, I note there's

 5     a -- one motion to add one witness on the 65 ter list, and my

 6     understanding is that there's no opposition from the Prosecution.  The

 7     motion was filed, if my memory is correct, on 28th of August.

 8             MR. NICHOLLS:  I believe that's no objection, Your Honour, but

 9     could I just confirm at the break and...

10             JUDGE KWON:  Thank you.  And also we have two motions regarding

11     the admission of written statements, one pursuant to 92 bis, and the

12     other pursuant to 92 ter.  The first one, the former was filed on 20th of

13     August, and the latter on 9th of September.  And in particular, the

14     latter one is due to give testimony very soon, so the Chamber likes to

15     hear the Prosecution's position very soon.

16             MR. McCLOSKEY:  Yes, Mr. President.  Good morning.  The 92 bis

17     motion, I believe that's the one -- if I'm thinking of -- we had --

18     basically a character witness that we had no objection to.  The 92 ter

19     motion we will be objecting to and, of course, we'll file something very

20     soon, or we are able to argue it orally, whatever the Chamber prefers.  I

21     know Mr. Thayer is working on that as we speak.

22             JUDGE KWON:  My understanding is he is due to be the first

23     witness.

24             MR. BOURGON:  Indeed, Mr. President.  He will be the first

25     witness for the Defence.

Page 25501

 1                           [Trial Chamber confers]

 2             JUDGE KWON:  The Chamber prefers to have your submissions in

 3     writing, and if you could do that by the end of tomorrow or...

 4             MR. McCLOSKEY:  No problem.  Yes, Mr. President.

 5             JUDGE KWON:  Or during the course of tomorrow so that if

 6     necessary, Nikolic Defence team may be able to file a reply.

 7             MR. McCLOSKEY:  That shouldn't be a problem, I know Mr. Thayer is

 8     working on it and he -- it shouldn't take long.

 9             JUDGE KWON:  The 92 bis motion is so granted.  And I'm not sure

10     about the degree of urgency, but we also have received a motion regarding

11     a subpoena with respect to one witness and videolink motions with respect

12     to two witnesses, and I also like to have the response from the

13     Prosecution as soon as possible.

14             Yes, let's bring in the witness.  Mr. Bourgon?

15             MR. BOURGON:  Thank you, Mr. President.  Before the witness comes

16     in, I would just like with the leave of the Court simply to clarify

17     something that I said yesterday at page 47, lines 8 to 18, which appears

18     confusing from reading the transcript.  At page 47 my colleague said --

19     sorry, at page 46, lines 20 to 22, yesterday that the Nikolic Defence

20     team had not challenged the encounter between Marko Milosevic and Drago

21     Nikolic.  Firstly, it is our position, Mr. President, that this is not

22     entirely correct but more importantly; and secondly, the fact that we ask

23     witness Milosevic to mark where this alleged encounter took place on a

24     map does not mean that we accept nor recognise that Drago Nikolic

25     directed Marko Milosevic to Colonel Beara if that encounter ever took

Page 25502

 1     place.  Thank you, Mr. President.

 2                           [The witness entered court]

 3             JUDGE KWON:  The Chamber will note it.  Mr. Ostojic, for you to

 4     continue and conclude your re-examination.

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

 6                           WITNESS:  WILLEM WAGENAAR [Resumed]

 7                           Re-examination by Mr. Ostojic [Continued]

 8        Q.   Good morning, Professor Wagenaar.

 9        A.   Good morning.

10        Q.   And sir, once again, my sincere appreciation and I thank you for

11     agreeing to come back, and I'm sure we'll get you out of here and back

12     home very shortly.  Very much appreciated.  Thank you, sir.  May I begin?

13        A.   Absolutely.

14        Q.   Thank you.  Sir, yesterday, my learned friend was discussing a

15     category of seven witnesses that I call, actually, witnesses that you've

16     identified as being no identification tests on those witnesses or

17     improper tests that were conducted on those witnesses?

18        A.   Yes, that's correct.

19        Q.   Thank you.  And I'd like to just highlight a couple so that we

20     have at least a clear record, which I'm sure we'll all be more

21     comfortable with.  Now, the OTP, the Office of the Prosecution seems to

22     be at least in my view somewhat confused about the issue of retention of

23     names and conducting proper investigations and how they may fall into the

24     mix with wanted posters that we've seen.  So let's look at the first

25     witness that we've identified, and that is Mr. Milosevic, which is 126 on

Page 25503

 1     our charts respectively that we've identified.  And you let me know --

 2             THE INTERPRETER:  Counsel is kindly asked to switch off the

 3     microphone when the witness is responding.  Thank you.

 4             MR. OSTOJIC:

 5        Q.   You'll let me know when you get to that witness, sir?

 6        A.   Yes, I have it in front of me.

 7        Q.   My first question to you, sir, is when was the first interview

 8     conducted with Mr. Milosevic by the Office of the Prosecutor?

 9        A.   I'm not sure I have the date here in my summary notes.

10        Q.   Well, let me try to refresh your memory, Professor.  I never gave

11     you that interview.  I gave you the testimony that the Court heard when

12     he testified here, but I'll help you.  The first interview that the

13     Prosecutor had with Mr. Milosevic was on March 14th, 2002.  Now, when my

14     learned friend was asking you that, he simply gave you the year 2002

15     yesterday, and you seemed to have agreed with him that, yes, if this man

16     gave an interview in 2002 and these wanted posters were actually

17     published in 2002, perhaps an identification test or a photo lineup board

18     would not be necessarily appropriate.  And I can give the specific page

19     cite where my friend references that.

20             JUDGE KWON:  Yes, Mr. Nicholls.

21             MR. NICHOLLS:  Yeah, I would like the page cite.  Just to help my

22     friend, the interview, the 14 March 2002 interview is in the binder which

23     was provided to Professor Wagenaar.  That was provided to him.  We've

24     copied those binders.  We have it as being included.

25             JUDGE KWON:  Mr. Ostojic.

Page 25504

 1             MR. OSTOJIC:  Yes.  It's on page 42, lines 22 through 25, and it

 2     proceeds on page 43.

 3             JUDGE KWON:  You agree that first interview was included in the

 4     binder?

 5             MR. OSTOJIC:  I really don't.  I don't know.  If he says it is, I

 6     have no reason to doubt it.  I understood that it was not, but it's a

 7     minor point.

 8             JUDGE KWON:  Yes, please proceed.

 9             MR. OSTOJIC:  Thank you.

10        Q.   Now, in questioning you if we know as we've established, I think,

11     by looking at these various exhibits that the first wanted poster - and

12     just if you could follow along - was I think on the 30th of October,

13     2002, then the Interpol one on the 31st of October, 2002.  Given that

14     that's approximately six-plus months after this March 14th, 2002,

15     interview, would an identification or a photo board lineup be indicated

16     in a case such as the evidence that was being offered by Mr. Milosevic?

17        A.   Mr. President, could I see in front of me the answer I gave to

18     that question yesterday?  Because the way I remembered it is that I said,

19     yes, if the first interrogation was after the publication of those

20     posters, then it would have been improper.  I didn't agree that it was

21     improper or that -- and I did not confirm the dates because it's not my

22     business to confirm dates.  That's your business.  I hope that I said it

23     in that way, if they were published, then.  So I would like to see the

24     transcript.

25             JUDGE KWON:  Thank you, Professor.  I take it that would be

Page 25505

 1     sufficient for your answer, but Mr. Nicholls?

 2             MR. NICHOLLS:  Yeah, I think it may be difficult providing that

 3     answer to the question to the Professor since I never asked him about

 4     wanted posters with this witness, and I don't see it in the reference to

 5     my friend.  Maybe he can help me out.  Maybe I'm wrong, but it's 25448

 6     that I'm looking at from yesterday where I start asking questions about

 7     Mr. Milosevic, and I don't believe that I ever asked about wanted posters

 8     and that the witness didn't answer about wanted posters.

 9             JUDGE KWON:  So Professor Wagenaar, I don't think it's

10     practically possible for you to see the relevant transcript pages through

11     your monitor, but Mr. Ostojic can read out those parts if necessary.

12             MR. OSTOJIC:  I think the professor can answer it straightforward

13     if I'm correct.  Let's just add -- let me put another question to him.

14        Q.   Now, sir --

15             MR. NICHOLLS:  I'm sorry.

16             THE WITNESS:  I hope I may address this question.

17             MR. NICHOLLS:  He's put --

18             JUDGE KWON:  So you said page 42 of yesterday's transcript?

19             MR. OSTOJIC:  Correct.  I'll put the question and I'll read it,

20     Mr. President.

21             JUDGE KWON:  What's the page number in the electronic version?

22             MR. OSTOJIC:  You know, we didn't --

23             JUDGE KWON:  We have to add 42 from the first page -- to the

24     first page?

25             MR. OSTOJIC:  We have last night's copy of the transcript, and

Page 25506

 1     they don't get updated, the transcripts, from my understanding, until

 2     early this morning, so we don't have the paginations that are consistent

 3     with the official trial transcript.

 4             JUDGE KWON:  What is the first word that appears on the top of

 5     the page?

 6             MR. OSTOJIC:  On top of the page, the first word that appears is

 7     "not".  "Not correct, is it..."  and then on line 2 the answer was:  "No,

 8     it should read..." and then it goes on.

 9             JUDGE KWON:  Yes.  Please read out.  The Prosecution can check

10     the accuracy of it.

11             MR. OSTOJIC:

12        Q.   As reflected on page 42 of yesterday's transcript, line 22,

13     Prosecution asked the following question, although long so we'll be

14     patient:

15             "Thank you.  I want to ask you now about Witness 126, Milosevic.

16     This concerns a 14 July encounter.  He's number 10 on your table.  He was

17     interviewed in 2002 and testified here in June 2007.  This is the

18     witness, you may remember, who was ordered by his commander to deliver a

19     message to Colonel Beara at the school, and he testified at TR1302:  'And

20     later in the day, did you receive some instructions from your commander?'

21     Answer" -- or I'm sorry: "'Answer:  Well, yes, sometime in the afternoon

22     he was also called from the brigade, or at least that's what he told me,

23     and he asked me to look for Mr. Beara near the elementary school and to

24     convey a message to him to report to the brigade command, and this is

25     exactly what I did.'"

Page 25507

 1             And then Mr. Nicholls proceeds with his next comment and

 2     question, I believe.

 3             "Now, thinking here about refreshing and names, if you have to

 4     deliver a message to someone who you don't know or haven't met named

 5     Beara, then you have to remember that name, perhaps even refresh it, as

 6     you go along to do the task you were ordered, correct?  So the process of

 7     imprinting that name Beara would begin even before the encounter?"

 8             And then, sir, you provide the following answer on page 43, lines

 9     12 through 14:

10             "Answer:  That's one possibility.  I'm really not to judge the

11     exact situation.  It's also possible that he would be ... go there and

12     there, there is the colonel, and tell him this and that."

13             I'm reading it verbatim.  There may be a correction in the

14     transcript from yesterday, but let me put this question to you.

15             MR. NICHOLLS:  I'm sorry to interrupt.  That's what I was

16     referring to.  The first question implied that I'd asked about posters,

17     and only given the date 2002, that's where my difficulty was.

18             JUDGE KWON:  Yes.

19             MR. NICHOLLS:  And this is 25449 of the official transcript.

20             JUDGE KWON:  Yes, we will follow.  Let's hear what the question

21     is.

22             MR. OSTOJIC:  Thank you.

23        Q.   Sir, given that Mr. Milosevic gave an interview on March 14,

24     2002, and having an appreciation that the wanted posters were first

25     published on October 30th, 2002, was an identification photo board

Page 25508

 1     required in this situation?

 2        A.   It's not for me to state what is required because I'm not aware

 3     of any prescriptive rules.  My position is that it might have been very

 4     helpful to resolve some uncertainties about the testimony of such a

 5     witness.  About the quote you gave me, that is an example of how I tried

 6     constantly to fight the invitation to have to pronounce an opinion about

 7     the facts in this case.  I think I've been very careful yesterday to

 8     constantly emphasize that I'm not to judge the facts.

 9             In the quote you gave me, I think I've been very clear to say

10     it's not for me to judge whether someone remembers something or actually

11     whether he has been given a certain name.  I can only look at some

12     possibilities.  The same applies to the question of dates and

13     publications of posters.  It's not for me to determine when

14     interrogations took place, and if you have a question about when

15     interrogations took place, please consult your files.  Don't ask me.  I'm

16     not an expert on that.

17             The only thing I can state that that's a general principle is

18     that if witnesses have seen pictures of the accused other than at the

19     confrontation that is investigated, then according to my rules - and I

20     think the Prosecution has explained it very carefully and understands it

21     - then it is not useful to apply a photo board identification.  If those

22     pictures have seen much later, then, of course, before seeing these

23     pictures it would be very helpful to do a photo board identification.

24     It's a matter of order.  But it's not for me to determine in which order

25     the several events took place.

Page 25509

 1        Q.   Now, I got confused because during that same questioning with

 2     respect to Mr. Milosevic on the very next page, although counsel was

 3     asking you about name retention, he proceeds to tell us the following:

 4     "No exposure problem there.  This is daylight, two to three" -- I'm

 5     sorry, and this was on page 45, lines 1 through 10 of yesterday's

 6     transcript.  Let me just repeat it.  He asked you first about name

 7     recognition.  Then he goes on to identify the circumstances upon which

 8     this purported encounter occurred:  "No exposure problem there.  This is

 9     daylight, 2- to 3-minute conversation, face to face.  Is 2- to 3-minute

10     face-to-face conversation adequate? " And sir, you provide the answer

11     "sure", which we have for the record.

12             Now, what does name retention have to do with exposure being

13     proper and the time interval for a face-to-face encounter?

14        A.   I think they've got nothing to do with one another, but in many

15     instances, and I've also noted it and even objected against it; I get two

16     or three questions in advance and it gets utterly confused.  I don't

17     think that's very helpful.  But let me say the following:  When -- the

18     question was is two to three minutes sufficient for a perception of a

19     face, which is a general question, I've not been asked to confirm that

20     actually it was two to three minutes or actually this witness saw the

21     face because I cannot know that.  The answer to that question definitely

22     should be taken as a general statement about in two to three minutes in

23     principle a person can see a face.  It's nothing -- no confirmation of

24     this actual situation because I'm not to judge that.

25        Q.   Given, Professor, that it seems the Prosecution is conceding that

Page 25510

 1     there was adequate exposure time and the parameters of the purported

 2     meeting and given that it occurred six months prior to any publication of

 3     a wanted poster, can you give me your opinion as to what are the

 4     consequences of the Prosecution not conducting a photo board

 5     identification lineup of this particular witness?

 6        A.   The consequence is that for the Tribunal it's far more difficult

 7     to judge what the reliability of the statement of these witness are.  The

 8     Tribunal would be very well helped if the Prosecution would have provided

 9     such an identification because we know that what we call the diagnostic

10     value, the weight of the evidence, if it is correctly, correctly

11     administered photo identification procedure, the weight of the evidence

12     is high.

13             So depriving the Court of important evidence with a high

14     informational value, I don't think that's very helpful.

15        Q.   Now -- and I only pause because I'm waiting for the translation

16     to catch up.  Thank you.  Now, the Prosecution has tried to offer us some

17     explanation as to why they were unable or felt that it was not indicative

18     or indicated to prepare a photo lineup with witnesses that they

19     interviewed purportedly after the 30th of October, 2002.  But what I'd

20     like to know is this concept that you introduced yesterday on page 44 on

21     line 6 and 7, and that is reconstruction.  You talk about the dangers of

22     reconstruction at that page and line number.  Can you share with me first

23     what that is?

24        A.   Can you give me more of the context because it means many things.

25     I'd like to be reminded to the exact context.

Page 25511

 1        Q.   Very fair, if I may.  It's just a long answer that you actually

 2     gave.  It starts off, for my learned friends, on page 43, line 20.

 3        A.   Maybe we don't need it all.

 4             JUDGE KWON:  Mr. Nicholls.

 5             MR. NICHOLLS:  Yeah, I'm going to object to the level of argument

 6     being introduced to these questions.  That question very simply could

 7     have been, on this page you talk about the dangers of reconstruction,

 8     what does that mean?

 9             JUDGE KWON:  Very well.  Let's hear the transcript pages.

10             MR. OSTOJIC:  Again, the full answer commences on page 43, line

11     20 through 25 on that page, and then proceeds on page 44 --

12             JUDGE KWON:  Because that page number is not matching with the

13     ones we have in our computers.  Start reading out those part.  We can

14     find it.

15             MR. OSTOJIC:  It starts with the Professor's answer:  "No, not

16     necessarily.  That's why I try to explain.  You need to know a lot more

17     about the situation.  If I'm told you will be examined by the Prosecutor

18     Mr. Nicholls, well, there's one person examining me, so I don't need to

19     know your name.  I just assume that that is a Mr. Nicholls, and I don't

20     have to remember the name."

21             JUDGE KWON:  Okay.  Now I understand the context.

22             MR. OSTOJIC:  And then he proceeds.

23             JUDGE KWON:  Yes.  I understand.

24             MR. OSTOJIC:  Then if I could just read the sentence immediately

25     before the word, and it states:  "So it depends on the situation.  If

Page 25512

 1     this person is sent to a certain place where someone is in charge, he

 2     needs to find the person in charge as it goes in the army, and if there's

 3     someone else who is the highest rank, you go to that person.  In his

 4     recollection later on, but that's already --"

 5             THE INTERPRETER:  Please slow down for the interpreters.  Thank

 6     you.

 7             MR. OSTOJIC:  Sorry, thank you.  "But that's already -- that's

 8     why I'm saying this, the danger is that he is now reconstructing that he

 9     was sent to meet certain Mr. Beara, whereas in fact he was just looking

10     for the highest in rank or the only colonel."  And it proceeds, but

11     that's the end of the quote.

12             THE WITNESS:  Now I understand your question.  May I answer it?

13             MR. OSTOJIC:

14        Q.   You may in one second.  I'm told that the official transcript now

15     is actually page 25449, and I apologise for not having that earlier.  You

16     may, Professor.

17        A.   Reconstruction means that after an event we either get new

18     information about the event or we rethink the event and come to certain

19     conclusions and then enter these conclusions or this new information into

20     our previous memories where they become an indistinguishable part of

21     those memories so that later on when we try again to remember that event

22     we will also remember the details that actually we had not experienced

23     but have added later on.

24             Our research generally shows that what we call the effect of

25     post-event information is that it is inserted in your memories and that

Page 25513

 1     people cannot make the distinction between the original memory and the

 2     things that were added.  So a witness would be totally honest in this

 3     example if he replied, I remember that I was told to find Mr. Beara, if

 4     -- and I'm only saying if.  I'm not saying that it happened in such a way

 5     just to get away from the confusions that are entered all the time in

 6     this court.  I'm not saying that I know what happened.  I'm only saying

 7     that there's another possibility.  That possibility is that this person

 8     was sent to meet the colonel or to deliver a message to a group of

 9     people, which would make him go to the highest in rank if is he a proper

10     military person, then later on if he was told, well, it was Mr. Beara,

11     that in the end he remembers I was told to tell Mr. Beara so and so, and

12     would in no way be able to make the distinction if questioned about it

13     between what he actually was said and what he now remembers he was told.

14     I'm not proposing this as a factual description of what happened.  I'm

15     proposing that as a thing that can happen in memory.

16        Q.   What about the concept, sir, of post-event reconstruction?  Have

17     you heard of that, by a third person or by another party?

18        A.   So one possibility is that other people present to you a

19     different -- a different account of the facts that happened, and when

20     they tell you about this, that this might work in your own memory as

21     post-event information and is integrated in your own memory after which

22     you forget the source from which this information actually has come.

23        Q.   Well, help me understand this.  How are we to determine whether

24     that information came from the initial source or it was a source from

25     this post-event reconstruction by a third party?

Page 25514

 1        A.   There's no way you can determine that, at least not by asking the

 2     witness because the witness would be unaware of what happened in his

 3     memory.  The only thing that you can verify is whether there was an

 4     opportunity for post-event information, whether he talked to anyone about

 5     these events.  That is something you can ask a witness.

 6        Q.   Now, let me give you --

 7             JUDGE KWON:  Yes, Mr. Nicholls.

 8             MR. NICHOLLS:  Your Honours, I think we're now verging into the

 9     area, again, of pure speculation.  The professor can discuss these

10     topics, which he's an expert on, but having said he can't in any way tie

11     it to any fact in this case, and to my recollection this post-event

12     reconstruction was never put to any witness.  It hasn't been put in the

13     trial.  It's just now an interesting topic, but it has no connection to

14     this case because any witness in any case is what we're talking about

15     with memory, and I think that's something that is squarely within your

16     ambit and that this is not helpful.

17             JUDGE KWON:  I thought Mr. Ostojic was moving on to another

18     topic, but...

19             MR. OSTOJIC:  Mr. President, I would -- respectfully, I think the

20     Prosecution is wrong, and if the Court permits me to put the next

21     question, although I'd like to put it as a factual matter, although they

22     are allowed to raise hypothetical questions, I'll do so in a hypothetical

23     matter, but specifically with this witness Mr. Milosevic I think we heard

24     testimony in this court from his commander who also testified.  If the

25     Court remembers, that commander and Mr. Milosevic actually drove in a car

Page 25515

 1     together for approximately two hours and gave the interview on the exact

 2     the same day and spoke about the facts upon which they were asked to be

 3     interviewed on by the Prosecution.  So I dare say that post-event

 4     reconstruction by third parties is not in this case.  Those were my

 5     specific questions at that time, and I think without summarising that

 6     evidence, we can refer to it quite plainly as to what both witnesses said

 7     in that regard.

 8             JUDGE KWON:  But the question raised by Mr. Nicholls is how it

 9     arises out of the cross-examination.

10             MR. OSTOJIC:  Two ways.  One, the professor mentions the dangers

11     of reconstruction; two, my learned friend was asking questions

12     specifically about Mr. Milosevic yesterday, and he specifically asked

13     questions both with name retention, which I think impacts on this

14     concept, and he also asked some specific questions when it relates to

15     exposure time and the qualifications in connection with that.  It's right

16     on point, I believe.

17                           [Trial Chamber confers]

18             JUDGE KWON:  Let us see first how the -- your question would be

19     formulated.  Put your question, and we'll see later on.

20             MR. OSTOJIC:  Thank you.

21        Q.   Hypothetically, Professor, when dealing with Mr. Milosevic in

22     this case and when he is going to his first interview on the 14th of

23     March, 2002, I believe, if he goes with his commander in the same vehicle

24     and drives for approximately an hour and a half to two-plus hours knowing

25     that both are being interviewed by the Office of the Prosecution, what

Page 25516

 1     impact, if any, does post-event reconstruction have if the two of them

 2     discuss the reason they're going to the Office of the Prosecution as well

 3     as the facts upon which each we're going to testify to?  But the Court

 4     should instruct you --

 5             JUDGE KWON:  Mr. Ostojic, speaking for myself, the professor

 6     would not be a position whether they discussed the matter or not, and he

 7     can only answer the question hypothetically and which answer -- in

 8     Chamber's view, he gave his answer already in previous.  So I think you

 9     can safely move on to another topic.

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

11        Q.   Let's look at some other lost opportunities by the Prosecutor

12     while they were investigating some of these witnesses.  And you know,

13     they've talked about the seven that you've identified, and we've

14     addressed one of them where you felt that identification board should

15     have been conducted, but let's look at the witness again, Mr. Egbers.

16     Now, he was interviewed from -- and I apologise for summarising, but we

17     could walk you through it and you can tell me the exact dates, but he was

18     interviewed three times by the Office of the Prosecutor, and I'll give

19     you the dates so we can all follow along:  The 24th of October, 1995; the

20     9th of July, 1999.  Let's just look at those two, and the third one is

21     the 30th of April, 2000, but let's leave the one of the year 2000 aside

22     for a moment.

23             Looking at the interview in October of 1995, knowing from what

24     you've read that Mr. Egbers claims there was this encounter with

25     Mr. Beara, was there any reason why the Office of the Prosecution should

Page 25517

 1     not have conducted a photo board lineup with Mr. Egbers at the time they

 2     interviewed him on the 24th of October, 1995?

 3        A.   May I answer that question, Mr. President?

 4             JUDGE KWON:  Yes, Mr. Wagenaar.

 5             THE WITNESS:  Just want to be certain.  Of course, I'm not to

 6     judge practical problems.  In theory, taking his testimony and realising

 7     that he claims to have met someone who he met for the first time, it

 8     should have been realized that this testimony could be backed up and made

 9     stronger by having a photo lineup.  As I remember Mr. Nicholls explaining

10     yesterday, one requirement is, of course, that you have a photo.  So at

11     that moment, the investigator should have realized that it's urgently

12     necessary to obtain a good picture of Mr. Beara, which in 1995 or 1999, I

13     don't know how difficult that would have been.

14             On the other hand, if you could take -- just take a picture of

15     Mr. Beara that would give an image, a good image of the way he looked

16     like then, so at least seeking the opportunity of obtaining pictures with

17     the purpose of using them in a photo lineup would be a matter of the

18     highest urgency, and just saying, well, we didn't have them, that's only

19     half of the story.  There's only a practical impossibility if it can be

20     confirmed that it would be impossible to get them.

21        Q.   Well, approximately three and a half years later on July of 1999,

22     they again have an interview with Mr. Egbers; and at that time, sir, they

23     did not conduct a photo board lineup.  What are the consequences now

24     after four years -- or four years approximately from the date that this

25     alleged encounter occurred of at that time not conducting a photo board

Page 25518

 1     lineup test?

 2        A.   Well, of course, it has the same disadvantage that you miss an

 3     opportunity; although, of course, it must be stated that the longer

 4     retention interval, as we call it, the longer the period that has passed,

 5     the more likely it becomes that a good witness who understands the rules

 6     and who would not guess at a photo board would in the end say, I'm sorry,

 7     I'm not certain that I recognise one, and therefore indicate no one,

 8     which does not mean that the accused is not present.  It only means the

 9     witness is not certain enough that he remembers.

10             The likelihood of that happening increases with the retention

11     interval, and therefore, a photo board preferably is administered at the

12     earliest opportunity.  Now, not having done it in 1995, then 1999 is the

13     next best, and even, say, a couple years later would be the next best

14     until the moment that pictures of the accused are -- have appeared on

15     billboards everywhere and could have been seen by this witness Egbers.

16        Q.   So am I correct that your answer would be the same with respect

17     to their third interview with Mr. Egbers in 2000, which was two and a

18     half years prior to the poster boards?

19             JUDGE KWON:  Mr. Nicholls.

20             MR. NICHOLLS:  Your Honour, I'm going to object because, again,

21     he's asking these questions now about things that he never put to our

22     investigator, Tomasc Blasczyk who he cross-examined far beyond the

23     question that he came to testify about, which the Drina corps collection.

24     And he could have asked Mr. Blasczyk then if we even knew who Mr. Beara

25     was in October 1995, how hard it was to get photos of Mr. Beara, how hard

Page 25519

 1     it would have been to get them this 1999 when -- what was going on then

 2     with Serbia, and none of that was put to our witness.  So he's trying to

 3     create this impression that he should have raised when we would have had

 4     a chance to respond to it in our case.

 5             MR. OSTOJIC:  There's two things I'd like to respond to.  One, I

 6     don't think Mr. Blasczyk would have any clue what was going on in 1995

 7     since he joined the Office of the Prosecution far later as his testimony

 8     shows.  However, when questioning Mr. Blasczyk, I was restrained from the

 9     Court to ask him anything other than with respect to the Drina corps

10     collection with the one exception, and that is when he said he went to

11     obtain only the name and the address of Mr. Beara's driver Milos Tomovic

12     at that time, and we could get that testimony for the Court.

13             My next point is if the Prosecution is going to introduce a

14     concept like photo boards as a plausible purported excuse, then they must

15     stand and take some heat as to why they didn't conduct these proper

16     identification tests prior to the poster boards.  Mr. Nicholls is trying

17     to testify, although he objects when as he claims that I do, to say that

18     it was very difficult.  We want to know those answers.  That's what

19     investigators should have said in their investigative reports and in

20     their information reports.  I don't accept that as the answer.  They had

21     photographs of Mr. Beara and almost all members.

22             And finally, I think it would have been reasonably prudent as I

23     said yesterday for the Prosecution to ask of their own witnesses who were

24     members of the Main Staff such as Savcic, Milovanovic, and Skrbic, if

25     they had any photos of their colleagues.

Page 25520

 1             JUDGE KWON:  Mr. Ostojic, it's very difficult to cut in the

 2     middle of the submission in order not to overlap for the sake of the

 3     interpreters.  I would rather refrain or avoid from dealing with the

 4     effect of rule 90(H) matters, which lead us to a very tricky area, but

 5     have we not heard sufficiently as to the effect of not conducting a --

 6     photo ID lineups?  I think we can -- you can move on, sir.

 7             MR. OSTOJIC:  With the highest of respect, yesterday I think my

 8     learned friend tried methodically to go through seven of the witnesses

 9     that were required to be --according to Professor Wagenaar to give an

10     identification.  I'm going back and trying to go to each one to show that

11     at the very least out of those seven there were four or more that even

12     under the best standards that the Prosecution sets forth that they had

13     this poster board issue - and I hesitate to comment on my feelings about

14     that - that that was the reason or explanation why they didn't produce a

15     photo board.  So I want a full record to show that exactly these

16     witnesses should have according to Professor Wagenaar and my read of the

17     report, should have been given a photo board identification test on

18     several different occasions.  But I will proceed.

19             JUDGE KWON:  If you dealt with interviews in 1995 and 1999, then

20     you don't have to deal with the later interviews.  Please go on.

21             MR. OSTOJIC:  I always like -- thank you.  It's just a matter of

22     crystalising it for everyone, Your Honour.

23        Q.   Let's talk about another lost opportunity, and that's witness

24     Boering that my friend asked you about yesterday.  Now -- and we'll try

25     to go a little quicker because I know the Court's being extremely patient

Page 25521

 1     --

 2             THE INTERPRETER:  Would you kindly bear in mind that interpreters

 3     are interpreting what you are doing.  Thank you.

 4             MR. OSTOJIC:  I will do so, and thank you.

 5        Q.   Professor Wagenaar, we are discussing witness Boering.  He gave

 6     two interviews to the Office of the Prosecutor.  September 28th, 1995,

 7     and February 3rd through the 6th and the 10th, 1998.  Now, before this

 8     trial, my learned friend asked you as to what impact it would have if the

 9     Defence of Mr. Beara purportedly conceded a second encounter but didn't

10     concede the first encounter.  What I'm asking you, though, is after 1995,

11     regardless of whether it was one or two encounters with Mr. Boering, was

12     a photo board identification test required and necessary?

13             JUDGE KWON:  Mr. Nicholls.

14             MR. NICHOLLS:  This is something he covered completely on direct.

15             JUDGE KWON:  Yes, I agree, and I believe that Witness is not in

16     the position whether Defence counsel concedes one matter and not in the

17     other.

18             MR. OSTOJIC:  I would just ask the Court, then, for the record to

19     note -- and we'll get you the proper transcript page but page 29, line 16

20     through 19 of yesterday's transcript.

21        Q.   Now, help us understand this theory or concept of wanted posters

22     if you will, Professor, and I asked you a question yesterday, and I

23     apologise because it may have been somewhat awkward.  Are you suggesting

24     that if wanted posters are published, that at that point no witnesses

25     thereafter should be given a photo board identification test?

Page 25522

 1        A.   No, that's not exactly what I said.  I said two things, if I

 2     remember correctly.  One is that it's very unfortunate to publish posters

 3     if there are still witnesses known to you who can be tested in an

 4     identification test because in that situation, of course, you should

 5     first administer the tests and then publish the posters because if you

 6     publish the posters in an area where these witnesses can see them, then

 7     it, in my opinion, would not be helpful anymore to test them in a photo

 8     board.

 9             But if there are witnesses about whom you can decide that they

10     simply had no opportunity to see these photo boards, for instance,

11     because they live in the country where they could never see them, that

12     would make a change.  So to give you an example, if the photo boards are

13     published in the former Yugoslavia and you want to test members of

14     DutchBat who live in the Netherlands and who have never returned to

15     Yugoslavia, then there's in principle not so much objection against

16     testing these members of DutchBat.

17             So it's not the general rule.  It all depends on whether there is

18     a possibility for witnesses to really have seen them.

19        Q.   And would you agree that it would be helpful if the investigator

20     or anyone would ask that question to witnesses?

21        A.   No, I won't agree to that.  As I explained yesterday, if

22     witnesses say, yes, I've seen the boards, that's helpful.  Then you know

23     it.  But if they say, no, I have not seen them, you must still assume

24     that they might have seen them but don't remember.  So irrespective of

25     the answer, you must assume they've seen them, so it's an unnecessary

Page 25523

 1     question.

 2        Q.   And help me understand on page 23 in yesterday's transcript, you

 3     were talking about this with my learned friend, and I think they gave an

 4     explanation about leads that, you know, one of the reasons purportedly an

 5     investigator wouldn't show photographs or showed a lot of photographs to

 6     the witness Babic that we were dealing with.  That was one of their

 7     explanations, the -- that they're looking for leads.  And then you talked

 8     about this, and it states on page 16, and again, I will get the correct

 9     transcript page for the Court.

10             And you say:  "And I'm always surprised if I say how easily and

11     how quickly during early investigation stages photographs are shown to

12     witnesses without the realisation that that way you lost the witnesses

13     for later identification purposes, which is not a problem if you have

14     lots and lots of witnesses but which can be very problematic if there is

15     a scarcity of witnesses.  And that is why I always recommend that you

16     show photographs to witnesses in order to find a lead if you are

17     desperate because there's no other way of getting leads."

18             I don't fully, with all due respect, understand your answer, so

19     can you help me understand it better?

20        A.   Sure.  What I said is the following:  There are two ways in which

21     you can use witnesses' reactions to photos.  One is in the investigation

22     period where witnesses looking at photos can give you leads.  For

23     instance, a very clear example is you have a photograph of something

24     related to the crime, but you don't know who these people are.  In that

25     case, you could ask a witness who is supposed to be familiar with these

Page 25524

 1     people to give you the names.  That's during investigation.  That is what

 2     Mr. Nicholls called in order to get a lead.

 3             A second use is photo identification.  That is where a witness

 4     made a statement about things he experienced and remembers, and there is

 5     a need to back up this statement by a test that verifies that the witness

 6     really met the person or persons he is describing.  That's something

 7     entirely different.  There, the use of photographs in a photo board will

 8     be to serve as evidence.

 9             Now, in my earlier publications, and I may refer you to the book

10     I wrote about the case of Ivan Demjanjuk where I very carefully explained

11     that, photographs that serve to obtain a lead do not have to conform to

12     any model or prescription.  But the outcome of that procedure cannot be

13     used instead of a photo board identification.

14             So the witnesses who looked at photos not conforming to the model

15     of a photo identification board can be helpful to provide leads but

16     cannot later on also be tested in photo boards featuring the same people

17     because if they identify someone in a photo board, that might be because

18     they saw that person in a photograph shown to them and not because they

19     saw that person at the scene of the crime.

20             So there must be no confusion, also, in the mind of investigators

21     between showing photos in order to get a lead and showing photos in order

22     to get evidence from the witness that he really is -- has seen a certain

23     person.  And my objection that I noted in my report is -- my objection,

24     my warning, rather, is that in this case some witnesses were shown

25     photographs that did not conform to the model of lineups and that,

Page 25525

 1     therefore, the Court must be warned that their responses to those

 2     photographs should be interpreted as witnesses giving leads but not as

 3     witnesses proving that they actually met someone.

 4        Q.   Thank you.  And just a follow-up question on that because I was

 5     really also looking for you to quantify for me where you say lots and

 6     lots of witnesses, and then you compare it to a scarcity of witnesses.

 7     Can you help me with that?

 8        A.   Yeah, absolutely, and I've seen many cases where you had a

 9     variety.  If you have a case on which I published, a case of a murder in

10     a bar with 82 witnesses, you may easily use 5 or 10 of those witnesses to

11     give you leads, whom you could show photographs; then you still have 72

12     witnesses remaining.

13             If, on the other hand, as I had in a supermarket murder, only two

14     witnesses of a brutal murder, and you show both witnesses just

15     photographs of suspects - not in lineups, just single photographs - I

16     would call that disastrous because maybe these witnesses remember the

17     killers very well, but their identification in a photo lineup cannot be

18     used.  You lost important evidence, and in that case their entire case

19     might be lost.

20             So my recommendation would be, always keep the minimum number of

21     witnesses that you will need in order to prove identity, and it's not for

22     me which number of witnesses -- to decide which number of witnesses is

23     convincing.  I think it's the first -- in the first place the task of the

24     Prosecution to determine which number of identification witnesses they

25     will present as sufficient evidence.  It's always wise to keep that

Page 25526

 1     minimum number out of the procedure of showing photographs in order to

 2     get leads.  And if you need three witnesses to prove identity and you've

 3     got only three, then you cannot show those three photographs in order to

 4     get leads.  If you still do that, then you lose your identification

 5     witnesses, and that's why I said that sacrifice, the cost of that is

 6     high.  So that's why I said if you still do that, you must be desperate

 7     for getting leads.

 8        Q.   Now, let me show you, if I may, quickly, 2D603 on the e-court,

 9     please.  And that is - again, just for the record and so it's clear - the

10     15th of July, 1999, information sheet that we got a couple of weeks ago.

11     I don't know the exact date, but it was certainly no more than three

12     weeks ago.  And if we could just scroll up because I'd like to focus on

13     the second and third paragraph of that.

14             And, Professor, you can read the information report in its

15     entirely to yourself, but I'll direct your attention to -- on the second

16     and third paragraph when you are complete.

17        A.   Yes, I've read it.

18        Q.   Now, what I'm confused at here, and I'm not asking you to

19     interpret what this investigator is trying to say, but he identifies in

20     the second paragraph this that other DutchBat soldier, that he did not

21     mention sighting Mr. Beara during that same encounter with Egbers

22     purportedly.  But then they goes on to say, however, he was never asked

23     that question in his first interview, and I'm paraphrasing, but it's all

24     there for us.  But in the third paragraph, he says the following:

25     "Sergeant Lutke again could not recollect anyone named Colonel Beara."

Page 25527

 1     I'm troubled by the word "again."  The first paragraph says he never was

 2     asked that, and he doesn't mention him.  Can you reconcile that for me?

 3             MR. NICHOLLS:  Do I need to object?

 4             JUDGE KWON:  Yeah, I was about to ask Mr. Ostojic whether the

 5     witness could answer the question.

 6             MR. OSTOJIC:  Given that he reviewed --

 7             MR. NICHOLLS:  I'm sorry.  And it's extra double objectionable

 8     because this person is on his witness list.

 9             JUDGE KWON:  Yes.

10             MR. OSTOJIC:  I don't have an appreciation for the extra double

11     objection.

12             JUDGE KWON:  Let's move on.

13             MR. OSTOJIC:

14        Q.   But let's look at the next exhibit if we may, 2D24.  You raised

15     the issue yesterday, I think, Professor, as to whether Mr. Egbers knew

16     what we call here B/C/S or Serbo-Croatian at the time.  And although it's

17     a 7-page document in English, I'll direct your attention to page 6, which

18     has the doc number at 2D03-0063.

19             And I further will direct your attention, if I may, to paragraph

20     number 2, particularly the end of that paragraph -- I mean, the end of

21     that sentence or line, where in parentheses it says:  "(See statement in

22     Serbo-Croat)."  Do you see that?

23        A.   Yes.

24        Q.   Now, you've looked at some of this material.  How do you -- how

25     do you view this?

Page 25528

 1        A.   It's very difficult for me to interpret what it means.  It

 2     doesn't tell me whether Lieutenant Egbers understands or speaks

 3     Serbo-Croat.

 4        Q.   Well, on the --

 5        A.   Is your implication that he is referring to a statement in

 6     Serbo-Croat he wrote himself, or is he saying --

 7        Q.   I don't know.

 8        A.   I'm utterly confused what it means.

 9        Q.   We didn't have an opportunity to inquire at that time, but we'll

10     discuss that outside of your presence later.

11             Now, Professor, I'm almost complete, but I do have to just

12     inquire of the Court.

13             MR. OSTOJIC:  Mr. President, yesterday I tried to introduce the

14     testimony of Zoran Malinic or the pertinent pages.  I would just like the

15     Court to reconsider my request because I think it impacts on specifically

16     Mr. Egbers, although in fairness to the Professor, we didn't provide that

17     to him because we wanted him to give us an analysis based on that which

18     the Court had, and that would be Exhibit 3621, and his interview was

19     conducted on the 14th of December, 2005, and I'd like to see his views on

20     that.  And I know the Court rejected me yesterday, I believe, and I'm

21     just asking if I may ask this question.

22             JUDGE KWON:  Before I'd like to answer, was Malinic protected

23     one?

24             MR. OSTOJIC:  He didn't testify, Your Honour.  I'm not sure what,

25     if any, protective measures may be necessary, but he may testify in the

Page 25529

 1     course of the Defence case.  But he was initially on the Prosecution's

 2     list, and I think they withdrew him conveniently.

 3             JUDGE KWON:  Mr. Nicholls?

 4             MR. NICHOLLS:  I don't know exactly what the question is.  I

 5     don't have that exhibit.  He put it on his list, but I think, again, it's

 6     going to be asking the professor to balance witness statements, which he

 7     said many times is something that is not his job.

 8             JUDGE KWON:  Very well.  Let us see what the question would be.

 9             MR. OSTOJIC:  May I?

10             JUDGE KWON:  Yes.

11             MR. OSTOJIC:  Thank you.

12             JUDGE KWON:  Let's bring up --

13             MR. OSTOJIC:  And it would be --

14             JUDGE KWON:  What is your question?

15             MR. OSTOJIC:  It would be page 24 of 43 as indicated on the

16     bottom of the page of 3621.  So if page 24 could be shown.

17        Q.   And specifically, I believe I'd like to -- although there's

18     references to it in the prior page, I'm really focusing specifically on

19     line 7 and on, 7 through 14.

20             And Professor, as we're reading this, I want to just give you a

21     brief background just so that you're with me on this in terms of the

22     contents.  Major Zoran, I believe - and I don't know that there's a

23     dispute - was with Captain Egbers at this purported sighting.  And now,

24     we talked yesterday briefly about who introduced purportedly Mr. Beara,

25     and we saw the different versions that were given by Mr. Egbers himself.

Page 25530

 1     But then now, here's the Prosecution's investigator trying to be

 2     purportedly fair, and he tells this witness that the United Nations

 3     officer, which I believe is Egbers who he's referring to, said that

 4     you -- that this witness introduced Colonel Beara to him and that they

 5     were present during this conversation.

 6             Now, we talked about fair questions a little bit.  That's not --

 7     that's a misstatement on all three of the interviews that Egbers gave,

 8     isn't it?

 9             JUDGE KWON:  Yes, Mr. Nicholls.

10             MR. NICHOLLS:  Nothing to do with Professor's field of expertise,

11     and it's just my friend trying to make his arguments early rather than

12     waiting for the appropriate time, and it's an unfair question for the

13     professor.

14             JUDGE KWON:  Agreed.  Come to your crux of your question you'd

15     like to put to the professor.

16             MR. OSTOJIC:

17        Q.   Sir, if you see on the next line, the question is, although this

18     gentleman answers it's possible, he says:  "You say it's possible.  Can

19     you recall it independently?"  You see the answer:  "No, I don't."  And

20     then he proceeds to ask him:  "Do you recall Colonel Beara actually being

21     there at Nova Kasaba during that time when prisoners were kept?"

22     Question.

23             Answer, line 14 by Major Zoran Malinic:  "I don't think he was."

24     And it proceeds, of course, and we have it there.  There's no need for me

25     to read it.

Page 25531

 1             Given this now in hand, can you quantify for me how important it

 2     was at least during the three interviews that the Prosecution and their

 3     investigators had of Mr. Egbers to conduct an identification test?

 4             JUDGE KWON:  I think we heard the answer from the professor.

 5             MR. OSTOJIC:  Professor, once again thank you very much for

 6     coming, and I appreciate it.  Thank you, Mr. President and Your Honours.

 7             JUDGE KWON:  Well, Professor Wagenaar, that concludes your

 8     evidence.  I, for one, listened to your evidence with great interest and

 9     appreciate it.  Now you are free to go.

10             MR. OSTOJIC:  Mr. President, if we could just convey a message to

11     the professor that if he -- you know, a couple of us just wanted to see

12     him before he leaves, and it might be a good time here for a break just

13     so we have an opportunity to see him afterwards having worked with him on

14     this case.  If you could convey that to him.

15             JUDGE KWON:  Yeah.

16             MR. NICHOLLS:  I join that, Your Honour.  I would like to speak

17     to the professor before he goes home.

18             JUDGE KWON:  Thank you, Professor.

19                           [The witness withdrew]

20             JUDGE KWON:  Shall we deal with the exhibits briefly?  We have

21     the list to be tendered from Beara Defence.

22             MR. OSTOJIC:  We do.

23             JUDGE KWON:  And Prosecution's and finally, Gvero Defence.  Are

24     there any objections with respect to any item?

25             MR. ZIVANOVIC:  Yes, I have objection.

Page 25532

 1             JUDGE KWON:  Yes, Mr. Zivanovic.

 2             MR. ZIVANOVIC:  As regard the exhibit from the Prosecution list,

 3     it is 105.  It is interview statement of Mr. Milorad Bircakovic.  He

 4     testified before this Trial Chamber on 7 and 8 May 2007, and then his

 5     interview was not admitted into evidence.  He was examined and

 6     cross-examined about the parts of this interview, and frankly, it is true

 7     that my friend examined the professor about the parts of this interview

 8     regarding recognition of one of the accused and read a part of this

 9     interview regarding my client.  However, recognition of my client was not

10     the subject of report of Professor Wagenaar on this particular occasion

11     in Zvornik brigade barracks.  Because of that, I object to admitting of

12     this interview in its entirety.

13             JUDGE KWON:  Thank you, Mr. Zivanovic.  Those part read out in

14     the courtroom will be appearing in the transcript.  Do you have any

15     observation, Mr. Nicholls?

16             MR. NICHOLLS:  I do, Your Honour.  I am moving to introduce all

17     of the documentation provided to Professor Wagenaar by the Defence that

18     he used in the preparation of his report.  That's three binders.  It's

19     not in e-court yet.  I think it's crucial for the Court to have that

20     because part of my exercise yesterday was taking the professor through

21     the conclusions of his report.  I did it when the time frame allowed.

22     The citations that he provides in his summary, which is the only place we

23     see citations for the basis of his conclusions, and then back to the

24     documentation provided -- that was provided to him.  So that way it's the

25     way for Your Honours in judging his conclusions in his report to be able

Page 25533

 1     to say, all right, Professor Wagenaar says X; how does he draw this

 2     conclusion?  He cites to this transcript, this interview, this proofing

 3     note, so that the Chamber itself can look at those and see if they

 4     believe the conclusion is supported or whether he's made mistakes, and

 5     with all due respect I think I showed that he did make some mistakes.

 6             In addition, it's the most basic principle, I think, that when an

 7     expert submits a report, you know what he based his report on, and you

 8     have those materials.  In every military report, every other report that

 9     I've ever seen in this Tribunal, the Chamber and Judge Agius - I remember

10     this from Brdjanin's - insisted them having all of the documentation

11     footnoted to, so that if the expert says, I draw this conclusion from an

12     interim combat report, that the Chamber can look at the interim combat

13     report and see if it's correct.  And it would just be amazing to me for a

14     party to put in an expert report and not want the Trial Chamber to see

15     what they had given the expert and what he used to make the report.  He

16     stated several times - I introduced the phrase - that this was his

17     universe.  This is what he had, and this is what he referred to when

18     coming to his conclusions.

19             So I -- and I think the purpose of all this documentation, which

20     includes a Bircakovic interview, is clear; the purpose is it's coming in

21     as a supporting material for this short, uncited report so that you can

22     see how the -- what material was used in the report and whether it was

23     used accurately.  So I -- that's my response.

24             JUDGE KWON:  One clarification, Mr. Nicholls.  The motion you

25     have just referred to has been already reflected in your list, so

Page 25534

 1     separate from Bircakovic statements, all the other documents are the ones

 2     that were included in those three binders.

 3             MR. NICHOLLS:  Yes, there is a overlap there, and that's the way

 4     the list came out.  The Bircakovic statement is also included in the

 5     materials.

 6             JUDGE KWON:  So -- I come to you, Mr. Bourgon, later on.  Mr.

 7     Nicholls, so you are object -- your purpose is not to tender the

 8     Bircakovic statement for the purpose of proving the content of it,

 9     rather, giving the context of Professor Wagenaar's evidence.

10             MR. NICHOLLS:  Exactly.  And Your Honours, 3669, which is on my

11     list, is the index to the materials provided by the Beara Defence to

12     Professor Wagenaar.  They gave us the binders to review, and we reviewed

13     them, and the index is accurate.  So this is a shorthand guide to what

14     Professor Wagenaar used in his report, and I think it all just absolutely

15     needs to be in so that his report can be checked.

16             JUDGE KWON:  Mr. Bourgon.

17             MR. BOURGON:  Thank you, Mr. President.  My first comment I'd

18     like to make concerning what my colleague just said regarding expert

19     witnesses.  I refer the Court back to the testimony of witness Butler who

20     was labelled as an expert by the Prosecution and accepted by the Trial

21     Chamber even though there was no possibility to even find out the

22     material that this witness had consulted before making both his report

23     and his testimony.  For my colleague to say today that unless you have

24     the whole universe you cannot accept or judge on the expert report is

25     simply astounding.

Page 25535

 1             But I simply at this point in time join the objection

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6             Mr. President, when the professor was cross-examined and

 7     re-examined, whenever these documents were used or referred to, the

 8     relevant parts were read into the transcript.  There is no need to come

 9     back and put all this material in even if it is for the purpose of

10     highlighting the context of the report of the professor.  We simply move

11     that should the Court in assessing the report of the professor at a later

12     time feel the need to see these documents, then, of course, the Court --

13     it will be open to the Court to do so.  But for the Prosecution to at

14     this time move to have all these documents admitted would not be the wise

15     thing to do at this time.  Thank you, Mr. President.

16             JUDGE KWON:  Mr. Ostojic --

17             MR. OSTOJIC:  If I may add, since in --

18             JUDGE KWON:  -- Madam Fauveau and Mr. Zivanovic.

19             MR. OSTOJIC:  Oh, I'm sorry.

20             JUDGE KWON:  Mr. Ostojic, you are the first.

21             MR. OSTOJIC:  Thank you.  There are two principles, I think,

22     here, although we're using obviously strong words like "amazing" and --

23     this Court has set a precedent in this case.  We've dealt with each

24     Prosecution witness in a manner, if you're going to use the statement,

25     the Court said we don't need that; we want to judge this case from the

Page 25536

 1     witness stand based on the public testimony that we've heard.  The

 2     Prosecution diligently went through each of those, and we provided it to

 3     them.  They diligently went throughout transcripts or the interviews that

 4     they wished to highlight to, as my learned friend says, found some

 5     mistakes or errors in the report of Professor Wagenaar, which he

 6     conceded.  The danger in setting the precedent now is that I will orally

 7     immediately ask this Court to provide me with the universe of all the

 8     documents their experts reviewed.

 9             A quick example that comes to mind is Kathleen [sic] Barr that we

10     all experienced.  She didn't provide us -- they didn't provide us with

11     her entire file nor her notes.  During her testimony, the Court allowed

12     on my motion to obtain that documentation.  We got it, but we didn't get

13     her entire universe because they complained that it's either privileged

14     or that there's a work product doctrine.  It's a poor precedent to set.

15             And the second principle is as to fairness.  The Prosecution had

16     the entire binder, has had the report for months.  We were always willing

17     to allow them to meet with Professor Wagenaar.  At each request they

18     made, we told them in the affirmative they can meet with him.  They have

19     had all these interview statements before.  To now produce all the

20     interview statements would then allow us to give this Court the entire

21     electronic disclosure filings, and our jobs would then become

22     meaningless.  Their jobs would become meaningless.  We're then inviting

23     this Court to just take the documentation and just review it on your own

24     without any arguments or cross-examination or direct examination from

25     counsel.  I strongly urge that this Court doesn't take this unilateral

Page 25537

 1     step to impose that the entire file and as specifically the statements

 2     that were produced be given in as evidence; and if they do that, they

 3     reconsider their prior orders and require an order that the Prosecution

 4     give us the complete files that Mr. Butler, Dr. Wright, Dr. --

 5     Ms. Kathleen [sic] Barr and others that have testified before this Court.

 6     Thank you.

 7             JUDGE KWON:  Ms. Fauveau, Zivanovic.

 8             MS. FAUVEAU:  [Interpretation] Your Honour, I have the same

 9     objection as regards Exhibit P3694.  This is an interview conducted by

10     the OTP with Celanovic.  If the Trial Chamber feels that this statement

11     needs to be part of the case file, then I feel that this should only be

12     as a part of Mr. Wagenaar's report and should not have anything to do

13     with the truth it contains.

14             JUDGE KWON:  Mr. Zivanovic.

15             MR. ZIVANOVIC:  Thank you, Your Honour.  I just would like to

16     join to the objection of Mr. Bourgon as to the witness statement and the

17   (redacted)

18   (redacted)

19   (redacted)

20             MR. BOURGON:  3662, Mr. President.

21             JUDGE KWON:  Oh, yes.  Mr. Nicholls.

22             MR. NICHOLLS:  Your Honours, this is not the same as just any

23     other witness, the practice where we haven't put in the whole

24     documentation and we only go through the parts read out.  This is an

25     expert report.  With Butler's report, Butler exhaustively footnoted his

Page 25538

 1     report.  All the documents that are footnoted were provided.  I think

 2     they're hyperlinked so they can click on them.  With Kate Barr everything

 3     that was asked for was provided.  They were provided with her notes.  The

 4     fact that I could have met with Dr. Wagenaar, the fact that I've

 5     cross-examined him for three hours and I tried to do it as quickly as I

 6     can, it's impossible -- the alternative is I cross-examine him for weeks

 7     and go through each statement because it's important to see not just what

 8     he cited but what he didn't cite, and I tried to point that out.  I mean,

 9     this is very simple, I think.  He's got witness summaries that he

10     prepared from reviewing those binders.  In the witness summaries, he

11     cites to the parts that he found relevant.  Now, it's also important, as

12     I say, what he didn't cite to, and it is; it's just astounding to me that

13     the material that we know was used in his report that he reviewed, the 12

14     witnesses that they called him to testify about, that they don't want you

15     to be able to see it, to see whether his report was accurate.  That

16     doesn't remove our role.  That just obscures the basic principle, that

17     footnotes to a report, the documents used in a report are available.

18     That's why they're made available to me so that I can check.  I can't

19     think of any reason why you should not be able to have that same ability

20     to check his cites, to read what he says as you would with the Butler

21     report.

22             JUDGE PROST:  Mr. Nicholls, before you sit down.  Sorry, I just

23     have a question.  With reference to 3662, 3694, and 3705, I'm assuming

24     that those three statements are, again, duplicates and overlap with the

25     -- a bundle of documents that you're proposing in your last entry, which

Page 25539

 1     is the three binders.  Is that correct?  These are all statements that

 2     were provided to Dr. Wagenaar?

 3             MR. NICHOLLS:  Yes, Your Honour.  Let me just quickly --

 4             JUDGE PROST:  I just wanted to confirm that.

 5             MR. NICHOLLS:  Yes, Your Honour.

 6             JUDGE PROST:  Thank you.  Thank you.

 7             JUDGE KWON:  And if you could answer, Mr. Nicholls, whether it

 8     would not be sufficient by including those part in the transcript pages

 9     by reading out those part?

10             MR. NICHOLLS:  No, I don't think it would, Your Honour, because

11     this is three volumes of material.  What I tried to do in my

12     cross-examination was keep it to three hours.  I tried to make it

13     shorter, but it was about three hours and 15 minutes, and I was hitting

14     the highlights.  I mean, I felt like part of what I was doing was

15     correcting some of his homework and pointing out issues.  One, there are

16     very likely in the time I had available points that I missed that may be

17     relevant that then would not be available to you; and there are points

18     that, frankly, I thought may have been important, but I did not try to

19     catch every single issue with every single one of these 12 witnesses in

20     the three hours that I had available.

21             JUDGE KWON:  And I take it there's no other objections in

22     relation to other documents to be tendered from the Beara Defence or

23     Gvero Defence?  Mr. Nicholls?

24             MR. OSTOJIC:  We would also add before they - I'm sorry, if I can

25     - additional documents that may not have made it on the list, and that

Page 25540

 1     would be - but I think we have it in there - the portion of the statement

 2     that we looked at with respect to Zoran Malinic.  And also, the -- I

 3     wanted to use, but I don't think we have --the Court has the OTP 65 ter

 4     summary of Zoran Malinic, which we've identified as 2D606.

 5             JUDGE KWON:  Do you have a 65 ter number of Malinic's interview?

 6             MR. OSTOJIC:  I do, Mr. President.  I have it as P3621, but I may

 7     have to double-check that.

 8             JUDGE KWON:  Mr. Nicholls.

 9             MR. NICHOLLS:  Yeah.  For Mr. Beara's exhibits, I object to -- if

10     this is a proper time or --

11             JUDGE KWON:  Yeah, let's deal with the submissions, and we'll

12     come back with a decision, hopefully.

13             MR. NICHOLLS:  I object to 2D603, the information report, which

14     my friend kept trying to question the witness about unsuccessfully.

15     2D606, the 65 ter summary, again, that did not -- was not used with the

16     witness and in my view is irrelevant.

17             JUDGE KWON:  How about the 3621?

18             MR. NICHOLLS:  I don't know what it is.  I'm sorry.

19             JUDGE KWON:  Malinic's interview.

20             MR. NICHOLLS:  He wants that interview in?  I don't object to

21     that interview -- I do object to that interview coming in.  There was no

22     questions on that because they were inappropriate, and it wasn't part of

23     his report.

24             JUDGE KWON:  Was it not put to the witness at the last moment?

25     2D606 is a summary of Zoran Malinic, and 3621 is his interview.  Am I

Page 25541

 1     correct, Mr. Ostojic?

 2             MR. OSTOJIC:  It is, but I think on page 41, specifically line 16

 3     through 19, I'm requesting the pertinent pages or that one page that we

 4     looked at.  There's no need, in my view, for the entirety of the

 5     statement as was our practice before.

 6             JUDGE KWON:  Yes.

 7             MR. NICHOLLS:  Your Honours, I can't remember, but I thought that

 8     my objection was upheld with the question about Malinic so that it's

 9     irrelevant.  And that just reminds me, that's the problem with putting in

10     just pages.  The Bircakovic interview is a good example because Professor

11     Wagenaar in my submission was possibly mixing up slightly these three

12     different events of -- that are spoken about in the interview he used,

13     and there were other parts of that interview that he looked at that I

14     believe contributed to his confusion about whether the identification is

15     the school in Orahovac, the Zvornik brigade headquarters, or the meeting

16     between Drago Nikolic, Beara, and Popovic.  And the only way to unpack

17     that is to see the interview, and that was part of the testimony, and it

18     can't be done by just looking at isolated parts.

19             MR. OSTOJIC:  And just briefly and ever so briefly, if I may,

20     it's very different if they call the witness and the Court has heard

21     evidence from those witnesses.  We have heard evidence from those

22     witnesses.  With respect to Mr. Malinic, the Prosecution had him on a 65

23     ter list and then withdrew him as a witness.  We don't know with any

24     certainty if he is going to appear.  I think that portion of that

25     statement is consistent with what the Court has done.  To argue that now

Page 25542

 1     we should have (redacted)

 2     (redacted) were used by counsel when appropriate during

 3     both direct and cross-examination.  They could have been elicited in the

 4     testimony.  The Court considered that in the full testimony of those

 5     witnesses.

 6             JUDGE KWON:  Thank you.  We heard enough.

 7             MR. NICHOLLS:  Last point, I'm sorry.  Nobody yet has pointed

 8     today any harm at all that would flow from the Court having available to

 9     it this material if it wants to check the cites and check the conclusions

10     of the report.

11             JUDGE KWON:  Mr. Josse.

12             MR. JOSSE:  Well, I submit there is harm.  The harm is just

13     bunging this case up with a huge amount of documentation.  Having said

14     that, if the Chamber was to find the material helpful, then we on behalf

15     of General Gvero who are not basically involved in this matter would have

16     no objection to it being admitted so long as it's admitted not out of the

17     truth of its contents.  Excuse the double negative.

18             I've only, actually, risen not to really deal with that but to

19     deal with our own exhibits.  Could I put one thing on the record, please,

20     Your Honour, and that's this:  6D308 on our schedule was in fact page 11

21     of 2D590, and we're only seeking to have page 11 of that report admitted,

22     and so we've given it a different 65 ter number.

23             JUDGE KWON:  Mr. Gosnell.

24             MR. GOSNELL:  Your Honours, we, of course, don't want to be left

25     out of this discussion.  We agree with the statement of principle by the

Page 25543

 1     Gvero Defence, but one practical matter to bring to your attention:  If

 2     you do bring all of these statements into evidence, there is the

 3     possibility that some of us might attempt to cite to those documents in

 4     their final briefs for the truth of their contents.  Now, as long as --

 5     if these documents are brought in, that does open the possibility of

 6     extensive motions to strike and complex submissions about the precise

 7     circumstances in which such documents were referred to.  So I would just

 8     implore the Chamber in any ruling it makes to be clear as to whether the

 9     documents are coming in for the truth of their contents or purely to

10     illuminate what was said by the witness on the stand.  Thank you.

11             JUDGE KWON:  Finally, Mr. Zivanovic.

12             MR. ZIVANOVIC:  I would just like to add that the part of this

13     transcript requires redaction because Mr. --

14             JUDGE KWON:  That has been already taken care of.

15             MR. ZIVANOVIC:  Thanks.

16             JUDGE KWON:  We'll break for 25 minutes.

17                           --- Recess taken at 10.39 a.m.

18                           --- On resuming at 11.10 a.m.

19             JUDGE KWON:  We come back to the issue and give our ruling after

20     the next break because we need to check some things with our transcript.

21     Shall we bring in the next witness.  Mr. McCloskey?

22             MR. McCLOSKEY:  Yes, just very briefly on what I consider to be a

23     policy matter related to this.  I just wanted the Trial Chamber to know

24     that when this material that we're offering into evidence and other

25     materials, it is not our intention to ever have this material limited to

Page 25544

 1     you in the sense of only for the truth of the matter asserted.  We think

 2     that fine, of course, for you to do that if you feel necessary or any way

 3     else you want to treat this, but this material, we would not endorse any

 4     restrictions on it except that you use it however or as little as you see

 5     fit.  That's basically our policy on that, and I just wanted to make that

 6     clear.  Thank you.

 7             JUDGE KWON:  That's a bit different position taken by Mr.

 8     Nicholls.

 9             MR. McCLOSKEY:  Well, I just wanted to clear that up, and that's

10     why I spoke, so that is our position.  We're fine if that's the way you

11     wanted to take it, but I do not want to be part of a limitation partly

12     because of the things that were pointed out by the Borovcanin team.  I

13     think that puts you in a difficult position with an old adversarial

14     concept that I think we should just forget.

15             JUDGE KWON:  We'll consider your position, well, to have postpone

16     our ruling.  Mr. Gosnell.

17             MR. GOSNELL:  Well, since I was specifically referred to, I think

18     I ought to respond.  The difficulty here, speaking very practically, is

19     if one of these documents that goes in, we have no problem with the

20     document being used in order to explain what the witness said on the

21     stand.  The problem that's going to arise is if a page in one of these

22     prior statements winds up in a final brief and we don't notice it or if

23     we do notice it, we file a motion to strike, or if the Chamber doesn't

24     notice it, and it winds up as a basis for a conviction in a judgement,

25     that's highly prejudicial.  It adds a complexity, and it adds -- in our

Page 25545

 1     view undermines the whole process of these proceedings.  So furthermore,

 2     you have access to all of these documents on e-court.  It doesn't need to

 3     be become an exhibit in order for you to have a look at it.  You can have

 4     a look at it without it becoming an exhibit.  That's the -- there is a

 5     useful purpose for having a distinction between marked for identification

 6     and something entered as an exhibit, which presumptively becomes evidence

 7     that you can safely rely on in reaching your findings in the judgement.

 8     Thank you.

 9             MR. NICHOLLS:  Very briefly.  It's not all in e-court.  That's

10     the -- part of the point.  It's not all in e-court; and secondly, I don't

11     see any -- I have a hard time seeing problems in final briefs or

12     judgements since presumably everything will be cited with its exhibit

13     number and will be very easy to trace what came in when through whom.

14     Thank you.

15             JUDGE KWON:  As a practical matter, what's the destiny of an

16     evidence that was tendered but not admitted?  That still stays on and the

17     Judges have access to them?

18             MR. JOSSE:  Precisely, Your Honour.  All I was going to say --

19     now is not the time to debate it, but with respect I'm not sure I agree

20     with Mr. Gosnell.  It's a difficult issue, and it may be one that we

21     should examine either orally or in writing in due course.  So far as Your

22     Honour's question is concerned, I do not know the answer.  I don't know

23     whether anyone else can help.

24             JUDGE KWON:  Thank you.  We'll come to that -- back to the issue

25     after the next break.

Page 25546

 1             Let's bring in the next witness.  I take it to be Mr. Bienenfeld.

 2             MR. OSTOJIC:  That's correct, Mr. President.

 3                           [The witness entered court]

 4             JUDGE KWON:  Good morning, sir.  If you could take a solemn

 5     declaration.

 6             THE WITNESS: [Interpretation] I solemnly declare that I will

 7     speak the truth, the whole truth, and nothing but the truth.

 8             JUDGE KWON:  Thank you.  Please be seated.  Mr. Ostojic.

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

10                           WITNESS:  JAKOV BIENENFELD

11                           [Witness answered through interpreter]

12                           Examination by Mr. Ostojic:

13        Q.   Good morning, sir.  AS you know, my name is John Ostojic, and I'm

14     one of the attorneys who represents Mr. Ljubisa Beara.  Can you for the

15     record give us your full name?

16        A.   My name is Jakov Bienenfeld.

17        Q.   Mr. Bienenfeld, can you share with us a little bit about your

18     background?  What's the highest level of education that you've attained?

19        A.   I have an associate university degree.

20        Q.   May we have your date of birth, please, and your place of birth?

21        A.   [In English] 28 of July, '48, Zagreb.

22        Q.   I know you do speak English.  Just so that there's no confusion,

23     may I ask in which language you would prefer to provide answers to some

24     of my questions?

25        A.   [Interpretation] Just to be sure, I would like to do it in

Page 25547

 1     Croatian.

 2        Q.   And just so I'm clear, can you tell us your ethnic background,

 3     and I apologise for asking.

 4        A.   No problem.  I was born in Zagreb.  I'm a citizen of Croatia, of

 5     the former Yugoslavia first and then Croatia, and my ethnicity is Jewish.

 6        Q.   I think the record says your ethnicity is Jewish as well as your

 7     religion, if I may ask?

 8        A.   [In English] It's a mistake.  Ethnically, ethnically I'm --

 9     [Interpretation] The situation is different in Croatia now.  I'm a

10     citizen of Croatia, and my religion is Jewish.

11        Q.   Sir, just share -- thank you.  Share with us briefly whether or

12     not you were gainfully employed prior to the war in former Yugoslavia in

13     1990.

14        A.   I have my own private company.  I've had it for 30 years now.  I

15     had it in the former Yugoslavia, and I still have it now in the state of

16     Croatia.  I am engaged in the development of software, and as of recently

17     I have also been engaged in construction.

18        Q.   Turning our attention to the period approximately of 1990 through

19     1995, can you tell us what you did at that point, if anything, with

20     respect to evacuation of certain population?

21        A.   Very well.  In early 1990, as you know, an attack was carried

22     out.  A bomb was planted on the building of the Jewish community in

23     Zagreb.  Immediately after that, I was appointed the head of security of

24     the Jewish community in Zagreb.  In keeping with that and in keeping with

25     the duties that that entailed, I handed my company over to my son, and I

Page 25548

 1     took care of the Jewish community in the period between 1990 and 1995.

 2     According to my free estimate, I concluded that I as a representative of

 3     the Jewish national minority had a very good and very suitable

 4     environment for all the warring parties to accept me as a neutral,

 5     non-religious person who could not fall into the trap of ethnicity or

 6     religion, and I realised that I could help in the exchange of the

 7     prisoners, and this is what I actually did most of the time.  I was

 8     involved in the exchange of prisoners between the then-JNA and the

 9     Croatian army.

10             During that period of time, I believe that it was already 1991,

11     and when I say that, I don't think I'm mistaken.  There were already

12     problems in Bosnia, and we were invited by the community in Sarajevo to

13     launch an initiative for assistance in food, medicines, and to see

14     whether there were any possibilities to launch an initiative to evacuate

15     some members of the Jewish community in the BiH who wanted to be

16     evacuated, and this is what I did and the activities that I was involved

17     in up to 1994.

18        Q.   And just so that we may obtain a proper parameter, you mentioned

19     that in early 1990 you were head of security of the Jewish community in

20     Zagreb.  For how long did you maintain that position?

21        A.   Too long.  Until 1996.

22        Q.   Share with us, if you will, and I know you mentioned the exchange

23     of POWs, whether or not you were involved in the evacuation of civilian

24     population during the period in which you were chief -- or head of

25     security of the Zagreb Jewish community?

Page 25549

 1        A.   Look, I've already said that I'm not burdened by any religious

 2     affiliation, and I really don't make any difference among people based on

 3     their religion.  We assisted the evacuation of part of the Jewish

 4     community from Sarajevo.  I would like to draw attention to a very

 5     important detail.  I personally evacuated seven convoys, and in every of

 6     these convoys members of the Jewish community were always a minority of

 7     each and every of these convoys.

 8        Q.   We're getting a little ahead of ourselves, I think, but let me

 9     focus because I wasn't sure if I understood it.  You are specifically

10     relating to an evacuation that you participated in in Sarajevo, correct?

11        A.   Yes.  Yes.

12        Q.   Can you tell us, please, when that occurred?

13        A.   It did not occur.  It was not just a one-off occurrence.  It kept

14     on repeating in 1992, 1993, and even maybe 1994.  I may be mistaken, but

15     it was a long time ago, and my memory is fading due to age.

16        Q.   Thank you.  Can you tell me if your organisation of which you

17     were the head of security, whether they had any affiliates that they

18     worked with during that time period?

19        A.   To be absolutely precise, I would like to say that the initiative

20     for the evacuation of Jews from Sarajevo was not an initiative of the

21     Jewish community of Zagreb, but the American institution, Joint

22     Distribution Committee, similar to Caritas, who received a query in

23     Sarajevo and launched the operation.  And since in Zagreb we had the best

24     logistics and the best equipment, we together with them became involved

25     in the complete operation.  As a Jewish community, we participated in the

Page 25550

 1     exchange of prisoners between the former Yugoslavia and Croatia on our

 2     own, but when it comes to Sarajevo we were partners with the American

 3     institution.

 4        Q.   I think you mentioned an organisation called Joint, J-O-I-N-T,

 5     but I think -- and you correct me if I'm wrong, I think it's referenced

 6     from time to time as the American Jewish Joint Distribution Committee?

 7        A.   [In English] Committee.

 8        Q.   Okay.  Thank you.  Is that correct?

 9        A.   Yeah, correct.

10        Q.   Thank you.  Sir, can you describe the events leading up to this

11     evacuation from the population in Sarajevo that you referenced earlier

12     today?  How did it come about?

13        A.   [Interpretation] As you know, the war started in Slovenia and

14     then spilled over to Croatia, and then everybody who wanted to see that

15     could see that Bosnia as the ethnically most-divided republic of the

16     former Yugoslavia will also hit hardship very soon.  We warned our

17     community in Sarajevo about that, but as in '45, the Jews did not believe

18     what would happen to them.  The same situation repeated in Sarajevo in

19     1991.  They did not believe that things might go wrong.  When the Croats

20     struck Bosnia, there was a shortage of food and medicine, and they turned

21     to us for help.  Actually, they first turned to Joint headquartered in

22     Paris.  Joint contacted us.  We mounted a radio search in the Jewish

23     community in Sarajevo, and in the Jewish community in Zagreb we ensured

24     communications lines.  We started our first food conveys, and after the

25     first convoy when we arrived there, there was a pressure to be evacuated

Page 25551

 1     not for the reasons of religious threats but because of the threat of a

 2     war.  The Jewish community in Sarajevo not for a single moment was

 3     threatened as an ethnic community, but there was normal fear among

 4     people, and this is actually the first war in the history when we were

 5     not threatened as a people.  Actually, I would like to point out that

 6     everybody treated us with much more respect than could have been

 7     expected.

 8        Q.   Thank you, sir.  I'd like to focus our attention specifically in

 9     connection with the seven convoys that you previously discussed; and in

10     connection with those seven convoys, I think you reference that in each

11     bus there was a minority of Jewish people.  Can you tell me what were the

12     other ethnic backgrounds, if you know, of the people that were being

13     evacuated with this 7-convoy evacuation?

14        A.   From the point of view of the former Yugoslavia, the composition

15     of these conveys was absolutely multiethnic.  There were Serbs, Croats,

16     Jews, the Roma -- or gypsies, as you will.  We also had one Albanian.  We

17     also had an Afro-American, an African-American.  In other words, these

18     were -- these convoys were absolutely multiethnic, but let me explain.

19     You have to understand that Sarajevo - I apologise - that Sarajevo was

20     organised as a ring in the middle.  There were Muslims around them, there

21     was a ring of Serbs, and after that there was a ring of Croats on the

22     outer edge.  And effectively, every ethnic group had to pass through an

23     enemy territory.  For Serbs in Sarajevo to reach Serbs in Pale or Lukovic

24     I had to pass through a Muslim barrier.  The Croats in Sarajevo had to

25     pass through both barriers, both Muslim and Serbs.  People wondered why

Page 25552

 1     Serbs in convoy, why not Serbs were in Sarajevo.  That was under the

 2     control of Muslims at that moment, and they found it very difficult to

 3     get to the Serb territories of Lukovic and Pale, and that's why they

 4     found themselves in our convoys.

 5        Q.   Sir, I'm still not clear based on the transcript as to the

 6     composition of the different ethnic groups.  I know you said all of them,

 7     but let me put a direct question to you.  Within this convoy, this

 8     7-convoy evacuation, were there Bosniaks and/or Bosnian Muslims that were

 9     also being evacuated by your organisation and your assistance?

10        A.   Look, in Bosnia, the Jewish community numbered some 900 people.

11     It was a very small community, and it could not provide for a normal life

12     such as a community would have.  That's why there were interethnic

13     marriages, and this resulted in the fact that over 60 percent of the

14     members of the Jewish community of some -- Sarajevo were married to a

15     non-Jewish person, be it a Muslim, a Croat, or a Serb.  However, from my

16     perspective, somebody whose wife is Jewish or whose husband is Jewish at

17     the moment of such a tragedy that prevailed in Sarajevo, there was

18     absolutely no difference between Jews and others, everybody who wanted to

19     leave Sarajevo, and you were limited by numbers.  It was not an

20     organisation to export or import people into and out of Bosnia.  If you

21     wanted to smuggle somebody, to put it that way, you had to invent their

22     origin.  You had to give him or her a story so as to make the Bosnian

23     authorities provide him or her with documents that would allow them to

24     leave the territory of Sarajevo.

25        Q.   Prior to the completion of the evacuation - specifically, I'm

Page 25553

 1     referencing to these seven convoys - did you have an opportunity or did

 2     you negotiate with the various ethnic groups?  I think you mentioned you

 3     did because you had to pass through the different areas, so if you could

 4     just clarify that for me.

 5        A.   I arrived from Croatia, and Croatia had the administrative

 6     control of the HVO, the Croatian Defence counsel, and it's a notorious

 7     fact.  When we went there, we did not have to have any licences.

 8     However, when we wanted to pass through the Muslim or Serbian

 9     territories, this required a lot of negotiations, but all these were --

10     proved to be successful at the end.  The then-head of the

11     counterintelligence, General Vasiljevic, referred us to General

12     Milovanovic as a person with whom we could negotiate.  At that moment, he

13     was the Chief of Staff or something to that effect, and we negotiated

14     with him about all the convoys that were supposed to cross the territory.

15     In Bosnia, we negotiated with Bosniaks, and this was done between the

16     Jewish community of Sarajevo and somebody whose name I can't remember.

17     The name escapes me.  He was the vice-president of the Presidency.  If I

18     remember, I'll tell you.  And we did not have any problems with these

19     negotiations.  I repeat once again, this is the only thing that I would

20     like to repeat and something that people have to be given credit for, and

21     that is that from all the three ethnic groups we received maximum support

22     when it came to the evacuation of the members of our Jewish community of

23     Sarajevo.

24        Q.   Are you familiar with the name --

25        A.   [In English] Excuse me, excuse me.

Page 25554

 1        Q.   I'm sorry.

 2        A.   Excuse me.

 3        Q.   Yes, sir.

 4        A.   Name was Ganic. [Interpretation] Family name.

 5        Q.   Thank you.  Did you have an opportunity to meet or are you

 6     familiar with the name of Ljubisa Beara?

 7        A.   Yes, I'm familiar with the name, and I met with Mr. Beara.  I met

 8     him when we were negotiating the passage of the second convoy.  There was

 9     a meeting which I attended together with General Milovanovic, and I was

10     escorted by the appropriate services of the Croatian Defence counsel.  We

11     had been invited to that meeting with General Milovanovic, and Mr. Beara

12     was also present at the meeting as the head or chief of the

13     counterintelligence of the then-Army of Republika Srpska.  He attended

14     our negotiations for the organisation of the second convoy.  Actually,

15     the way I saw it was that we were kind of transferred under his

16     competence for safety reason, and that is -- that was the only time when

17     I met him tete-a-tete and when I had an opportunity to talk to him.

18        Q.   Okay, and we'll get into the some of the details of that.  But

19     first, if you can tell me to the best of your recollection, what year or

20     what month did this meeting take place?

21        A.   Well, you're asking quite a lot.

22        Q.   Sorry.

23        A.   It may have been late spring 1992, I think, but I could not swear

24     that this is a fact.

25        Q.   Okay.  Where did this meeting take place?

Page 25555

 1        A.   At Pale.

 2        Q.   You referenced other -- or you mentioned a couple other

 3     individuals.  To the best of your recollection, can you give us a more

 4     detailed description as to how many people participated in these

 5     negotiations with respect to the seven convoys as you've referenced it, I

 6     believe.

 7        A.   [In English] You think on this meeting or generally?

 8        Q.   In particular this meeting.

 9        A.   [In English] This meeting was present General Milovanovic,

10     [Interpretation] Mr. Beara, Mr. Zarko Keza, and myself.

11        Q.   And how long did the meeting last?

12        A.   [In English] one hour, one hour and a half.

13        Q.   To the best of your recollection, what occurred which

14     necessitated this meeting with, among others, Mr. Beara in Pale?  Was

15     there a problem with the first convoy?

16        A.   [Interpretation] Personally, I believe - this is just my

17     speculation - that Mr. Beara had been invited to attend the meeting only

18     because we had announced that that convoy would not be unique, a one-off

19     occurrence, that is, that we intended to make several journeys and bring

20     food to Sarajevo.  This was a delicate issue, and I believe that he as a

21     professional occupying that position had been given a task to look at the

22     whole situation from his professional point of view and to provide us

23     with an unhindered and relatively clear passage as I've already told you.

24     I was escorted by the member of the -- appropriate member the HVO, which

25     was also in charge of securing our passage to the boarder, and it was

Page 25556

 1     only natural for me to see his counterpart, the gentleman in question,

 2     attending that meeting.

 3        Q.   You mentioned "unhindered and relatively clear passage."  Was

 4     that accomplished with respect to the evacuation process that was

 5     undergoing in Sarajevo that you referenced?

 6        A.   Except for one isolated case when because of the circumstances of

 7     its size the convoy had to be divided into two so that one of my

 8     colleagues pulled one of the convoys out, and the other one stayed in

 9     Sarajevo, and I came out with that one six hours later.  A group of

10     people, according to information which was accessible to me later, a

11     group of people in uniforms entered the bus, confiscated money, gold from

12     the passengers.  When I was informed about that, I felt very bad about

13     that, not only because of the valuables because that was the entire

14     property those people owned on the bus.  I was very angry about it and

15     indignant, and I called General Milovanovic first, and I must admit I

16     said all sorts of things to him, and the comment to that was that I

17     wanted to secure the return of all of those things with the utmost speed,

18     and I -- and now this is the first time since the war that this was said

19     publicly.  General Milovanovic understood the seriousness of that

20     problem, and that was something that -- it could not at that point be of

21     any use politically or in other -- any other way to Republika Srpska.  At

22     the time, he said that he would assign that to Beara.  I said, I don't

23     care who he entrusted that task to, as long as it was resolved, and I

24     must say that this was in the evening on the next day in the morning.  At

25     the crossing, Zarko picked up a sack, which was definitely to the last

Page 25557

 1     penny all of the property that was confiscated.  There was one small coin

 2     missing, and it was all returned with an apology.  We never had anybody

 3     hurt in the convoy, and as for the relationships of the Republika Srpska

 4     towards the Jewish community and the transference of people of Sarajevo,

 5     we always had an ambulance, an escort in the front, an escort in the back

 6     with us, and we were absolutely supported in every way in this.

 7        Q.   Tell me, sir, after this hour, hour and a half --

 8             THE INTERPRETER:  Microphone, please.

 9             MR. OSTOJIC:

10        Q.   After this hour, hour-and-a-half meeting that you've described

11     for us where Mr. Beara was present, can you tell us if you had ever met

12     him at any time subsequent to that?

13        A.   No.

14        Q.   And sir, just so we have it on the record and to be clear, are

15     you familiar or are you friends with any members of his family?

16        A.   I remember that somebody once told me that he has two children,

17     but I don't know them.  I don't know how old they are, what they look

18     like.  He could be about ten years older than I am, so I can assume the

19     age of the children, but I don't have any idea, and I never saw them, and

20     I didn't even see Mr. Beara after that.  Now is the first time that I'm

21     seeing him.

22        Q.   Thank you.  And sir, can you just tell me again, you mentioned

23     Zarko Keza Can you tell me what his role was in this evacuation of the

24     people from Sarajevo who participated in this meeting that you recall?

25        A.   Zarko Keza -- well, he was assigned to me from the SIS, which is

Page 25558

 1     the equivalent of the KOS, to help me, and he was some sort of assistant

 2     of something.

 3        Q.   During this meeting, were you able to observe whether or not

 4     Mr. Beara had any prejudices or bias towards any ethnic group?

 5        A.   Look, sir, I'm not dealing with the attitudes or the positions of

 6     Mr. Beara.  He was a very good professional at that time, so I didn't do

 7     that.  I did not enter into the reasons why the treatment of the Jewish

 8     community within the Republika Srpska and within the Republic of Croatia

 9     and within Bosnia was more than satisfactory.  I didn't notice any bias.

10     If I had noticed any, I would have stood up and ended the conversation.

11        Q.   Based upon your observations, sir, who in your view was the most

12     instrumental in making sure that there was this safe passage through

13     Republika Srpska for these convoys that you were assisting to evacuate?

14        A.   I personally think that Mr. Ljubisa Beara was a person in whose

15     technical jurisdiction was security, so in a way we were part of his

16     duty.  And also, I sincerely and deeply believe that he was up to his

17     neck involved in any convoy that was leaving Republika Srpska near

18     Stolac.  I cannot believe that he was not involved in some way.

19        Q.   And just a couple more questions, and thank you for your

20     patience.  You told us that there were seven convoys that you among

21     others, obviously, during your position as head of security for the

22     Zagreb Jewish community.  But can you give us a better estimate to the

23     best of your recollection as to approximately how many people of

24     multiethnic identities were on these convoys that were being evacuated

25     from Sarajevo?

Page 25559

 1        A.   My estimate -- I mean, we didn't have the precise record.

 2     Probably we could find the exact information at the Jewish community

 3     office in Zagreb.  According to my records, it's about 16 or 1700 people

 4     of which were legitimate and registered members of the Jewish communities

 5     of Sarajevo, 500, and the rest were just people from throughout the area.

 6     So it was perhaps 1200, 1300, 1400 people.

 7             MR. OSTOJIC:  Thank you, sir.  I have no further questions at

 8     this time.  Thank you, Mr. President.

 9             JUDGE KWON:  Does any team of other Defence has

10     cross-examination?  I see none.  Mr. Elderkin.

11             MR. ELDERKIN:  In fact, I'd just like to thank you Mr. Bienenfeld

12     for coming, and we also have no questions for him.

13             JUDGE KWON:  Mr. Ostojic?

14             MR. OSTOJIC:  Thank you, Mr. President.  I apologise for

15     interrupting.  I'm told that on line 59 -- on page 59, line 13, actually

16     the reference was to Stolac, S-T-O-L-A-C, without the K, but just so we

17     have that, but we'll look into it, but I think that's the way it should

18     be spelled.

19             JUDGE KWON:  What is the line again?  13?

20             MR. OSTOJIC:  Correct.

21             JUDGE KWON:  12.

22             MR. OSTOJIC:  I have it.  I didn't highlight it accurately, but I

23     thought -- actually, we could ask the witness to clarify that maybe.

24             JUDGE KWON:  No, I was asking what the reference of the

25     transcript page and line.

Page 25560

 1             MR. OSTOJIC:  Page 59, line 13.

 2             JUDGE KWON:  It's part of your question?  Probably my line is

 3     different from yours.

 4             MR. OSTOJIC:  Well, I found it now, and I have it.  I think we're

 5     looking at the same thing.  It's line 17, which is part of the answer,

 6     and I apologise for that.

 7             JUDGE KWON:  Oh, yes.

 8             MR. OSTOJIC:  Do you see it now?

 9             JUDGE KWON:  Yes.  Thank you.

10             MR. OSTOJIC:  Thank you.  I apologise, and thank you, sir.

11             JUDGE KWON:  Thank you, Mr. Bienenfeld.  That concludes your

12     testimony here.  On behalf of the Tribunal, I thank you for your coming

13     to give it.  Now you are free to go.

14             THE WITNESS: [Interpretation] Thank you.

15                           [The witness withdrew]

16             JUDGE KWON:  Do you have any documents to tender, Mr. Ostojic?

17             MR. OSTOJIC:  We do not, Mr. President.

18             JUDGE KWON:  Thank you.  Is the next witness ready?

19             MR. OSTOJIC:  I believe the next witness is ready, and it's

20     Professor Gogic, and Mr. Nikolic will lead the evidence with him.

21             JUDGE KWON:  You need some short break in order to prepare?

22             MR. OSTOJIC:  Just to maybe -- no, I don't think so, but if the

23     Court wants.

24             JUDGE KWON:  Let's bring him in, then.

25                           [The witness entered court]

Page 25561

 1             JUDGE KWON:  Good morning, Professor.  If you could take a solemn

 2     declaration.

 3             THE WITNESS: [Interpretation] I solemnly declare that I will

 4     speak the truth, the whole truth, and nothing but the truth.

 5             JUDGE KWON:  Thank you, please be seated.

 6                           WITNESS:  LJUBOMIR GOGIC

 7                           [Witness answered through interpreter]

 8             JUDGE KWON:  Mr. Nikolic.

 9             MR. NIKOLIC: [Interpretation] Thank you, Mr. President.  I'm just

10     going to wait a little for my learned friend.

11                           Examination by Mr. Nikolic:

12        Q.   Good day, Mr. Gogic.

13        A.   Good day.

14        Q.   Mr. Gogic, are you ready?  Can we begin?

15        A.   Yes.

16        Q.   Thank you.  I'm going to introduce myself.  It's required for the

17     transcript.  I'm Predrag Nikolic representing Mr. Beara in his Defence

18     team.  I'm going to be questioning you today on behalf of the Defence

19     team.  Now, I'm going to ask you to introduce yourself.

20        A.   My name is Ljubomir Gogic.  I was born on the 10th of December,

21     1958, in Sarajevo.  I work at the criminal investigations expertise of

22     the criminal investigation centre of the MUP of Republika Srpska in Banja

23     Luka, and I work as an expert on handwriting bills or paper bills and

24     signatures.

25        Q.   Mr. Gogic, can you please tell us your qualifications, your

Page 25562

 1     education?

 2        A.   I completed the faculty of theology the department of psychology

 3     and pedagogy in 1971 in Sarajevo.  I did not complete, but I did attend

 4     the post-doctoral studies.  I became -- and I completed half of the

 5     requirements for a masters degree, but because of the war I had to

 6     interrupt my studies.

 7             THE INTERPRETER:  Interpreter's correction:  The faculty was

 8     completed in 1981 in Sarajevo, not '71.

 9             MR. NIKOLIC:

10        Q.   [Interpretation] Can you please tell us what duties and what jobs

11     you carried out?

12        A.   After completing my studies in psychology and pedagogy, from 1983

13     to 1986 I worked as the assistant -- teaching assistant at the faculty of

14     philosophy in Zadar, which was part of the Split University.  Because of

15     family problems that I have, my parents' illness, I returned to Sarajevo,

16     my home town, and in 1986 I got a job at the Ministry of the Interior of

17     the socialist republic of Bosnia and Herzegovina in the criminal

18     technology department sector of the crime-fighting department on

19     handwriting documents and signature expertise.

20             I then from 1986 until 1992 worked at the MUP of the socialist

21     republic of Bosnia Herzegovina, and because of the war this was suspended

22     when the MUP of Republika Srpska was formed and the department of

23     criminal expertise where I then transferred to the MUP of Republika

24     Srpska in Banja Luka in the unit that exclusively deals with expertise

25     including expertise on documents, handwriting, and signatures.

Page 25563

 1             In 1995, I was appointed by the justice ministry as an in-house

 2     expert for documents, handwriting, and signature as a graphologist

 3     expert, although that is not the best possible description of that job.

 4     On the 20 --

 5             THE INTERPRETER:  The interpreter didn't understand the date.

 6             THE WITNESS: [Interpretation] -- I was appointed as the permanent

 7     court expert for handwriting, documents, signatures by the basic and the

 8     appeals Court of the Brcko district of Bosnia and Herzegovina.

 9             MR. NIKOLIC:

10        Q.   [Interpretation] Mr. Gogic, I'm going to ask you to repeat the

11     date when you became the court expert because that was not entered in the

12     transcript.

13        A.   Yes.  On the 23rd of August, 1995, I was appointed as the

14     permanent graphologist expert by the justice ministry and the

15     administration of Republika Srpska.  It was a certificate of the minister

16     --

17             THE INTERPRETER:  The interpreter did not catch the number.

18             THE WITNESS: [Interpretation] -- and then on the 26th of July,

19     2002, I was appointed as permanent graphic expert -- graphology expert

20     for documents, signatures, and handwriting.  On the 26th of July, 2002, I

21     was appointed as a court expert in documents, handwriting, and signature

22     expertise by the appeals and basic court of the Brcko district of Bosnia

23     and Herzegovina, 249/02 of the court and also by the decision number

24     604/02 of the same court.

25             MR. NIKOLIC:

Page 25564

 1        Q.   [Interpretation] Mr. Gogic, I'm first going to ask you --

 2             JUDGE KWON:  Mr. Gogic, I take it you are reading from your CV.

 3     Am I correct?

 4             THE WITNESS: [Interpretation] Yes.

 5             MR. NIKOLIC:

 6        Q.   [Interpretation] I'm going to ask you to speak more slowly

 7     especially when discussing numbers.  But I also received the information

 8     that on page 62, line 24, it has been entered what you studied.  I would

 9     like you to repeat that.  What it says here is theology, but actually I

10     would like you to complete that.

11        A.   I completed studies of pedagogy and psychology at the faculty of

12     philosophy in Sarajevo.

13             JUDGE KWON:  Mr. Nikolic, what I meant is that because we have

14     the CV, so you can go through a bit more quickly with respect to his CV.

15             MR. NIKOLIC: [Interpretation] Thank you, Mr. President.  I just

16     wanted to ask the witness to speak more slowly, and I was going to go to

17     the heart of the matter.

18        Q.   Sir, could you please provide us some more details about the work

19     of your department.  What are the tasks that you were involved in?

20        A.   When it comes to forensic analysis, we establish the originality

21     of documents; we analyse the paper of the document with regard to the

22     property, the size, the colour, the chemical composition, the

23     identification of the means for writing, whether be it a ballpoint pen,

24     felt tip pen, pencil.  We also identify typing, typewriters, electronic

25     -- mechanical typewriters, inkjet, laser, thermal, printers, and so on,

Page 25565

 1     so forth.  We also identified the integrality of typing.  We also

 2     identify the typing cartridges, the type of printing in terms of --

 3     there's being offset, high, or deep.  We'd identify photocopied and

 4     scanned documents.  We identify the systems of writing.  We also identify

 5     scriptors, the handwritings -- the handwriting of figures and signatures.

 6     We also identify scriptors with regard to the chronological age, the

 7     physical and mental status of the writer.  We also identify the influence

 8     of the instruments and the position in writing on the handwriting.

 9             THE INTERPRETER:  Could the witness please slow down.

10             JUDGE KWON:  Professor Gogic, if you could slow down for the

11     benefit of the interpreters in your answer.

12             THE WITNESS: [Interpretation] Thank you.

13             JUDGE KWON:  I think you need to repeat the last part of your

14     answer, but if Mr. Nikolic could attend to it.

15             MR. NIKOLIC: [Interpretation] Thank you.

16        Q.   Mr. Gogic, could you just briefly explain to the Trial Chamber,

17     what are the tasks are involved in graphological analysis that you have

18     performed as a member of the -- your department in the Ministry of the

19     Interior?

20        A.   The collation of the originality of documents to see whether the

21     document was forged.  Moreover, identification of the device that was

22     used, be it a mechanical, electrical, electromechanical, electronic,

23     writers, printers, thermal, dot matrix.

24        Q.   I apologise, Mr. Gogic.  I have to interrupt you before you start

25     repeating yourself.  In your explanation, you arrived at an explanation

Page 25566

 1     with regard to the establishment of the method of handwriting and so and

 2     so forth.  I would like you to tell us more because this is relevant, I

 3     don't want you to go over the same grounds again, I'm going to remind

 4     you, you left it off with the establishment or detection of the

 5     synchronous on asynchronous types of handwriting.  Can you tell us

 6     something about that when it comes to the establishment of these?

 7        A.   When it comes to the establishment of the absolute or relevant

 8     age of a document, there are three methods available to us.  The first

 9     one is to establish the absolute age of the ink; the establishment of the

10     relative age of the document, i.e., the establishment of the fact that if

11     something was created simultaneously or whether something was created

12     before or after; and the third method is the method of detection of the

13     synchronous and asynchronous inscription, i.e., separate or sequential

14     inscription.  And in that sense, there are appropriate criteria, i.e.,

15     starting points for the procedure to detect separate from sequential

16     inscription.  These criteria and starting points are based on the

17     relevant number of different research projects, primarily those that were

18     so-called case studies which were based on the investigation of different

19     handwritings in various journals, logbooks, and other materials where

20     contents are entered, in which especially important is Robert Foley's

21     research.  He investigated 500 documents of a known but different origin

22     - originating from government and other organizations - arrived at a

23     general conclusion, and established a set of criteria that might serve as

24     a starting point for the differentiation of one from another.

25        Q.   Mr. Gogic, when we are talking about the research of documents

Page 25567

 1     and the establishment of facts that you've just spoken about, did you

 2     undergo any other courses or types of education?  And if you did, could

 3     you tell us something about that?

 4        A.   After the war, I believe that this was in the year 2000, in the

 5     organisation of the American Ministry of Justice, I attended a seminar in

 6     Sarajevo which was led by Gideon Epstein, one of the top authorities

 7     across the world in this area of forensic analysis.  For awhile he was

 8     also the president of the American association of experts on the

 9     investigation of documents and document analysis, and he's also well

10     known for the fact that he was a member of the team of investigators of

11     the war crimes committed by Joseph Mengele.  A person under the pseudonym

12     Helmut Gregor in Sao Paolo was identified by him as Josef Mengele based

13     on the handwritings and the handwritten notes of that person.  After that

14     in the month of September 2001, I spent some time at the forensic

15     institute at the headquarters of the German federal police in Weisbaden

16     in -- it's the KT-5 department, which deals primarily in the forensic

17     analysis of handwriting and signatures headed by Mr. Manfred Hecker, who

18     is famous for having created a system of the investigation of

19     handwriting, the so-called FISH system, standing for the Forensic

20     Information System of Handwriting, which was also taken over by the FBI

21     amongst other organizations.

22        Q.   Mr. Gogic, when you attended these seminars, did you receive

23     certain qualifications?  Did you receive certificates certifying your

24     attendance and the knowledge that you acquired?

25        A.   Yes, we did obtain certificates after these seminars.  Those were

Page 25568

 1     attendance certificates testifying to the -- to their successful

 2     completion.

 3        Q.   At the very beginning of your testimony, you said that you are

 4     also a forensic expert in graphology in Bosnia and Herzegovina?

 5        A.   Yes.

 6        Q.   Can you tell us something about that, primarily what does it

 7     entail?  What does your forensic expertise entail when you work as a

 8     forensic expert?

 9        A.   When a Court or a Prosecutor's Office issues an order or request

10     or when police organizations issue such requests, I mostly perform the

11     same duties and tasks I perform in the department for forensic analysis

12     at the police.  In other words, I examine documents, bank notes,

13     handwritings, and signatures.

14        Q.   Mr. Gogic, tell us a bit more about the methodology that you use

15     in your forensic analysis.

16        A.   When it comes to the forensic analysis of handwriting and

17     signatures, we apply the so-called comparative methodology based on

18     special and general handwriting characteristics; to be more specific, a

19     disputable handwriting and the handwriting of the suspects who might have

20     been the authors of the document.  In that sense, in order to be able to

21     embark on any forensic analysis, one has to study in detail the object of

22     the expertise or analysis.  In this particular case as it would be a

23     handwritten document, one has to establish the general characteristics of

24     that handwriting and -- as well as very specific individual features of

25     that handwriting as departing elements for the procedure and methodology

Page 25569

 1     of comparison with the equally established characteristics of the

 2     handwriting of the suspects in question.

 3        Q.   Did you also use the same method when you drafted your report on

 4     the task given to you by the Defence team?

 5        A.   Yes.

 6        Q.   Mr. Gogic, when was it that you had first contact with the

 7     Ljubisa Beara Defence team?

 8        A.   I believe that this was towards the end of March or the beginning

 9     of April of this year.

10        Q.   Were you provided with all the necessary documentation, and if

11     you did, what kind of documentation did you receive, and were you also

12     provided with a detailed instruction as to what you were expected to do?

13        A.   Yes.  I received documentation, but I received photocopies.  I

14     received three photocopied books or logs, the logbook of the duty

15     operations officer that was marked by number 02935619 on the cover page;

16     also, the logbook of the IKM Kitovnice marked by the following number on

17     the cover page, 00760268; and the auxiliary logbook marked by the

18     following number, 02936603.

19             JUDGE KWON:  Mr. Nikolic, for clarity could we have the 65 ter

20     numbers of those three logbooks?  First, the duty operation logbook.

21             MR. NIKOLIC: [Interpretation] Just going to do that.  Just a

22     moment, sir.  It would be 2D -- I apologise, 7DP00378.

23             MS. SOLJAN:  Your Honours, I think I can assist the Trial

24     Chamber.  In order, they would be Exhibits 377, that was the first one

25     that was number 02935619, what we referred to as the duty officer

Page 25570

 1     notebook; the second document would be P935, that would be the IKM

 2     notebook; and then the final one is Exhibit 378 -- I believe 7DP378.

 3             JUDGE KWON:  Thank you.  I think that's correct, Mr. Nikolic.

 4             MR. NIKOLIC: [Interpretation] Absolutely correct, and I thank my

 5     learned friend for her assistance.

 6        Q.   Mr. Gogic, kindly tell us what was your brief given to you by the

 7     Beara Defence team?

 8        A.   By my specific expertise of the documents, it was necessary to

 9     establish the following:  whether the pages in question have been

10     altered, whether anything was added, retraced, or whether there were any

11     changes of any kind that would violate their authenticity and integrity.

12     Then we would need to see if any scriptor, one or several, were used to

13     write the handwriting on the pages in question or not, and then to

14     compare - as the third task - the characteristics of the handwriting on

15     the pages to classify them, group the different handwritings according to

16     their common characteristics.  Then the fourth assignment would be --

17     which what was written by Jokic, Trbic, Obrenovic, and Nikolic on these

18     pages, whether there were any words or numbers added on those pages or

19     inserted there and if the handwriting was created asynchronously or

20     separately for themselves or synchronously sequentially in a series.  The

21     sixth assignment is if there were any insertions, where they are; and the

22     seventh task would be to differentiate between the different means of

23     scripting.

24        Q.   Of all these tasks, did you complete all of them?  Were you able

25     to complete all of them?

Page 25571

 1        A.   All the tasks were completed except one, and that is the one

 2     under number 4 that I referred to in the sense of whether the scriptors

 3     of the contents in these diaries, Jokic, Nikolic, Trbic, and Obrenovic,

 4     in view of the fact that I didn't have their handwriting as a comparison

 5     and also in the diaries.  If there is the participation of these

 6     scriptors, it was not indicated what specifically they wrote.  So for the

 7     above reasons, I was not able to approach the procedure of comparative

 8     analysis of their handwriting or the characteristics of their handwriting

 9     with the characteristics of the handwriting that I found and which

10     structure these referred-to diaries.

11        Q.   After this assignment, how many reports did you complete?

12        A.   There are two reports.  The first one was a report which was done

13     and forwarded on the basis of an analysis of documents which were

14     photocopies.  In view of the fact that in order to provide a specific

15     opinion, one requires original documents.  I asked or sought the

16     possibility to have access and review original documents.

17        Q.   Did you have an opportunity - and if you did, when and where - to

18     look at the original documents?

19        A.   Yes.  The original documents I reviewed at the premises of the

20     Prosecutor's Office of The Hague Tribunal in late June of this year, and

21     I did this in order to analyse and review the documents right there.

22        Q.   After looking at the original documents, did you draft another

23     report based on the original documents?

24        A.   Yes.  On the basis of the reviewed original documents at the OTP

25     of The Hague Tribunal and the expertise done on the ink, which was

Page 25572

 1     conducted at the institute of forensics here in The Hague, a report -- a

 2     new report was drafted, and that is the second report that has also been

 3     included here.

 4        Q.   Just one moment, I'm going to refer to this new report so that we

 5     can all follow.  That is number 2D582.

 6             Mr. Gogic, is this report any different than the other report

 7     that was drafted on the basis of photocopies, and if it is, what are the

 8     differences?

 9        A.   The differences are that the ink was analysed, and then on the

10     basis of those results that section was added to the previous report, and

11     also in view of the fact that an expertise was conducted on the originals

12     and not on the photocopies of the documents, the opinion given was more

13     firm, more decisive.

14             MR. NIKOLIC: [Interpretation] Mr. President, we have made a small

15     introduction, and now we would like to embark on analysis of the report.

16     If you think that this is now a good moment, we could go on a break and

17     then move to more specific parts of this witness's testimony.

18             JUDGE KWON:  I think it's a convenient time, but before we take a

19     break, I remember -- whether -- I'm not sure that Ms. Soljan can address

20     this.  I remember Mr. McCloskey referred to a comparison book or the --

21     which will contain the both B/C/S and English, and there was an issue

22     whether to include the comment from the Prosecution or not, but what

23     happened to -- can I hear the further development?

24             MS. SOLJAN:  Your Honours, on the 14th of December during a trial

25     session, it was decided that the Prosecution's annotation would not be

Page 25573

 1     treated as evidence by the Trial Chamber but that this book could be used

 2     as an aid in an approach to it.  And this -- I believe in e-court it is

 3     set out as 377(A), but obviously we have given hard copies of this.

 4             JUDGE KWON:  It has the both B/C/S.

 5             MS. SOLJAN:  Which - exactly - has both B/C/S/ and English with

 6     annotations on it.

 7             JUDGE KWON:  I don't remember we have received that in hard

 8     copies, but do you have hard copies available?

 9                           [Prosecution team confers]

10             MS. SOLJAN:  Your Honours, we do have them available.

11             JUDGE KWON:  It would be very beneficial.

12             MS. SOLJAN:  Absolutely, Your Honours.

13             JUDGE KWON:  Okay, we will take a break for 25 minutes.

14                           --- Recess taken at 12.28 p.m.

15                           --- On resuming at 1.00 p.m.

16             JUDGE KWON:  Mr. Nikolic, please continue your examination.  We

17     may need about five minutes at the end of the session for our ruling.

18             MR. NIKOLIC: [Interpretation] Thank you, Mr. President.

19        Q.   Mr. Gogic, I would like to move to an analysis or an explanation

20     of the report that you furnished.  But before that, I would ask you to

21     explain some terms that you referred to before the break, primarily

22     referring to the way things are written.  You mentioned sequential and

23     separate writing.  Can you please explain these terms for us in the

24     context of your testimony?

25        A.   As for the meanings of separate or asynchronous marks, the basic

Page 25574

 1     characteristics of this writing is -- are that the previous position of

 2     the hand in writing has to be, again, repositioned for the following

 3     separate writing, so it indicates a slower more thought-out writing, an

 4     upright position of the letters, larger letters and numbers, shorter

 5     words, occasional ornamentation, greater or lighter pressure of the ink

 6     stroke, increase legibility of the contents, alignment to the margin, and

 7     random shaping of the letters.  When we're talking about sequential

 8     writing or serial writing, once the hand position and the position of the

 9     fist is established during the writing, it remains until a certain line

10     of script is completed.  They are also characterized by a greater speed

11     of writing and the slant of the letters and the numbers.  There is

12     reduced legibility, and the letters are less compact and the pressure is

13     less.  The letters are more drawn out or squashed.  The regularity of the

14     series of script, consistent use of a certain shape of a letter or a

15     number.  There are some others, but these are the most prominent

16     characteristics of the two types of script or writing.

17        Q.   Thank you.

18             MR. NIKOLIC: [Interpretation] I forgot one important piece of

19     information.  Mr. Gogic's report has been translated into English, and we

20     can look at it on page 2D410018.  This is the English version, and in the

21     B/C/S version the number is starting from page 2D41-0001.  I think that

22     this will be useful.

23        Q.   Now, we can go back to your findings.  Mr. Gogic, you said that

24     you looked at all of these books.  Did you concentrate on the entire

25     books, or did you just look at specific pages?

Page 25575

 1        A.   I looked at the entire books, but my attention was exclusively

 2     focused on the pages that I was asked to review by Mr. Beara's Defence

 3     team.

 4        Q.   Thank you.  I would like to ask you to analyse one of the pages

 5     for us, and that would be a page from Exhibit P00377, page RN02935741.

 6     Mr. Gogic, if you can see -- well, let's wait a little bit.  We'll wait

 7     until it appears.

 8             MS. SOLJAN:  Your Honours, just -- we have the originals of the

 9     notebooks here in the event that they want -- the Defence wants to use

10     them.

11             MR. NIKOLIC: [Interpretation] Thank you.  I guess it would be

12     good to hand the originals to Mr. Gogic so then he can show us on the

13     ELMO the elements which are important in his findings.

14        Q.   I'm going to ask to look at page 02935741.

15             Mr. Gogic, the original page that you have in front of you, can

16     you place it on the ELMO?  I'm going to ask the usher to help us, if she

17     can, and I would like to ask you in accordance with the task that you

18     were given by the Defence team to explain what you find on this page in

19     terms of your task and to indicate those places to us.  Do you have the

20     page in front of you?

21        A.   No.  I have it here, yes.

22        Q.   Mr. Gogic?

23        A.   Yes, yes.  I have the attachment, and I have it on the screen.

24     On the page numbered 02935741, it has been established that there are

25     traces of tracing and alterations.  The alterations are --

Page 25576

 1             JUDGE KWON:  We have it in e-court so that the witness can mark

 2     on the B/C/S version.  Can we zoom out so that -- I'll leave it in your

 3     hands, Mr. Nikolic.  For the record, I take it to be the -- page 123, 123

 4     of that logbook in e-court.

 5             MR. NIKOLIC:

 6        Q.   [Interpretation] Thank you, Mr. Gogic.  I would now like to ask

 7     you to show us pursuant to the task you were given on this page what you

 8     established and to circle that with a felt tip pen so that we could note

 9     that.

10        A.   What was established here are traces of alterations.  [Witness

11     marks], also signs of retracing here, another sign of alterations here.

12     It was noted in the ink analysis that the same ink was used in the

13     writing of the original and in the retracing and alterations.

14        Q.   Mr. Gogic, one of the tasks was also to establish if these

15     documents - specifically this one and the following one - were written by

16     one writer or several of them.  So my question would be in terms of this

17     page, if this was written by one writer or several of them?

18        A.   The entire handwriting of the numbers and the figures is of one

19     scriptor, whom I indicated as scriptor A.

20        Q.   Thank you.  The retracing and alterations, are they, and - if yes

21     - to which degree to they affect the authenticity of this document?

22        A.   Alterations and retracing were mostly done at items number 2 and

23     number 4 - I think that is here - and lower case and upper case D with

24     the word "dule," and then also retracing at the beginning of the page.

25     When you have such retracing or alterations, their nature is not such

Page 25577

 1     that it would have any significant effect on the authenticity of this

 2     document.

 3        Q.   I would also like to ask you the following:  The types of script

 4     here, what sort of handwriting are they?

 5        A.   This is the sequential script.

 6        Q.   All right.  Before we finish with these documents, can you please

 7     look at the bottom and place your name and the date at the bottom of this

 8     page so that this particular page would be verified?

 9        A.   [Witness marks]

10        Q.   You talked about alterations and retracing.  I would like to ask

11     you to mark them in a different way, what was specifically altered in the

12     document, and we can mark that with the letter A, and we can mark the

13     retracings with the letter B, and that way it would be more clear.

14        A.   [Witness marks]

15        Q.   Thank you.  I would like to now look at Document R02935742.  This

16     document and all the others that we will go through in the same way, I

17     would like to tender as evidence.

18             We have the document.  Mr. Gogic, I would like to ask you to

19     analyse this document from the aspect of how many scriptors there were,

20     one or several, and to explain if there are other elements that would be

21     the subject of your notice.  In the same way, we are going to try to

22     identify everything that you established.

23        A.   The handwriting on page 02935742 was produced by three scriptors.

24     The handwriting from the beginning, beginning with the asterisks and the

25     word "Vukotic" and the contents, "lovac 2", and the arrow was written --

Page 25578

 1     I'm sorry.  Actually, it's two scriptors, not three.  I made an error.

 2     So from the beginning, from -- from the beginning until "lovac 2" was

 3     written by one scriptor as well as the contents above the underlined word

 4     "aco."  Where there is a dash and a content that can be partially

 5     identified, it says something, "na dza se," [phoen] something in that

 6     sense, and this was written by one scriptor.  The second scriptor wrote

 7     the contents that begin from the middle of the page beginning with the

 8     word that starts with the capital letter T, and ends with the words

 9     "Beara."

10             On this page we have examples of retracing, alteration, and

11     crossing-out.  Places where there was retracing are here.  [Witness

12     marks] Alterations can be seen here, and crossing-out, here.

13             In order to write the content on this page, two colours of ink

14     were used, blue and black, and the actual things written by the first

15     scriptor, scriptor A, was written by a blue pen of a referent composition

16     of that type while the contents written by the second scriptor who I

17     marked as scriptor C until the last word "Beara" was written, the text

18     was written by a black ballpoint pen.  On this page there are sequential

19     and separately written contents.  Scriptor A wrote sequentially and

20     scriptor C including the last paragraph, but the word "Vukotic" is

21     written separately in front of the word "da," as well as there is an

22     example of separate script with this already-mentioned entry that is

23     above the underlined word "aco", which can be read as, dash, "dzefin

24     dzafin" [phoen].  This is an example of separate script.

25        Q.   Mr. Gogic, can you also show us and encircle the parts written by

Page 25579

 1     scriptor A and those written by scriptor C?

 2        A.   This was written by scriptor A.  Scriptor A.  And this was also

 3     entered by the same scriptor A, whereas this part of the content from the

 4     middle of the page down to the bottom of the page was written by scriptor

 5     C, obviously not the encircled part written by scriptor A.

 6        Q.   Could you please mark the encircled parts with letters A and C,

 7     which would indicate to us exactly who the authors are.  Thank you.

 8             You have told us that you also noticed some parts having been

 9     crossed out.  Could you please point to the places where this happened

10     and whether you can see the previous text under the crossing-out?

11        A.   This is in the penultimate line of the handwritten page.  The

12     crossing-out was carried out so that the previous content was not

13     completely neutralised, which means that one can read the following words

14     "PUK Beara", standing for Colonel Beara, underneath.  By analyzing the

15     ink, we determine that the same ink was used both for the original entry

16     as well as for the crossed-out entry, so the same ballpoint pen was used.

17        Q.   Is there anything relevant that you would like to tell us about

18     this particular page?

19        A.   I believe that I've told you everything.

20        Q.   Thank you very much.  We will also tender this into evidence, but

21     the procedure preceding that has to be the same.  Please sign it, i.e.,

22     put your initials on the document and today's date.

23             While Mr. Gogic is doing that, I would kindly ask for the

24     following document, which is 02935744.

25             The document is on the screen now.  Kindly analyse this document

Page 25580

 1     based on your brief.  Tell us exactly how many scriptors there were, one

 2     or several, and explain all the other things that you have established.

 3     And I will also kindly ask you to put the same type of markings on this

 4     document as well.

 5        A.   The handwritten content on the page bearing number 02935744 is a

 6     product of three different scriptors or writers.  The first writer

 7     authored the content, and this scriptor I marked as scriptor A, from the

 8     top of the page to the word "Bajagica" and including that word.

 9             Writer B authored the contents of the last two paragraphs.

10     Finally, Writer C -- I apologise, an unknown scriptor, entered the

11     following entry, "14.07 Jokic."

12             When I analysed the means of writing used, I determined that

13     scriptor A used the same blue ballpoint pen.  The first paragraph written

14     by scriptor B was done by a different blue ballpoint pen, and for the

15     second paragraph written by scriptor B, a different ballpoint pen was

16     used.  The content "14.07 Jokic" was entered with a graphite pencil.

17     When it comes to the writing, this would be an example of sequential

18     writing done by scriptors A and B.

19             Here, we also have an example of a separate entry, i.e., an

20     example of inserted content which, as I've already indicated, is in this

21     case the entry "14.07 Jokic", which was entered separately between the

22     last two paragraphs entered by scriptor B.

23        Q.   What is the character of the entry "14.07 Jokic"?  How would you

24     describe this?

25        A.   As I've already told you, this is a separate inscription standing

Page 25581

 1     on its own which was entered by a different writer.  This is best seen

 2     from a series of elements.  For example, if you look at the way this

 3     person wrote the words and numbers in the structure, and we don't see

 4     that in Scriptor's B writing, and we see it in Scriptor's A writing, we

 5     will see that there is a separation between figures, that there's no

 6     slant, that numbers are vertical, that the numbers are extremely large,

 7     that there is a problem with the line of writing.  These are all elements

 8     which undoubtedly point to a separate inscription.  There's also another

 9     fact that cannot be ignored, although it is not always the most relevant,

10     and the fact is that a different means of writing was used to make this

11     entry.

12        Q.   How could you determine that the entry "14.07 Jokic" was made

13     with a different means of writing, and what means was that?

14        A.   I've already told you this was done by a graphite pencil, and

15     this was determined when we analysed the ink that was carried out in the

16     Dutch forensic institute here in The Hague.  In that sense, I would

17     kindly ask you to display from the CD.

18        Q.   I'm sorry.  We will have to ask you -- it will be much more

19     efficient if you have those images that you took from the CD to put them

20     on our display.  I apologise.

21             MR. NIKOLIC: [Interpretation] Mr. President, I am asking for this

22     to be done because the material from the CD has still not been downloaded

23     on e-court.

24             THE WITNESS: [Interpretation] Yeah, I have it in my briefcase,

25     but I haven't got my briefcase on me here in the courtroom.  It is in the

Page 25582

 1     room for the witnesses.

 2             MR. NIKOLIC: [Interpretation] We have a technical problem.  The

 3     witness has left the materials behind in the witness room.  I don't know

 4     whether this would be a good moment to let the witness go since the Trial

 5     Chamber has asked for five minutes before the end of today's session.

 6     Maybe we could release the witness and continue with him -- his testimony

 7     tomorrow because I have other material to go through with him.

 8             JUDGE KWON:  That's a good idea.  Let the witness sign this

 9     document and keep it for the moment and continue tomorrow morning at 9.

10             MR. NIKOLIC: [Interpretation] Thank you.  I apologise.  I would

11     kindly ask the Trial Chamber to instruct the witness to have all of his

12     materials on him tomorrow when he comes to the courtroom.  This would

13     certainly avoid any similar problems, any problems of the nature that

14     we're facing at the moment.

15             JUDGE KWON:  Thank you.  And Professor Gogic, you are advised not

16     to contact any of the Defence team or Prosecutor to discuss the evidence

17     you are going to give, so we'll meet again tomorrow morning, 9 o'clock.

18                           [The witness stands down]

19             JUDGE KWON:  And this is our ruling on the admission of

20     statements we discussed about at the end of the testimony of Mr.

21     Wagenaar.  First of all, we would like to make sure that we are not

22     dealing with this issue on a general basis.  We are deciding whether or

23     not to admit these documents with reference to this particular expert

24     witness in the specific context of his report and evidence.

25             In that context, we are of the view that documents contained in

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 1     the binders should be admitted because they are important or helpful for

 2     a proper and full analysis of Professor Wagenaar's evidence.  Therefore,

 3     we are admitting those statements but solely for that purpose and not for

 4     the truth of the contents.

 5             The same will apply to 2D603, Mr. Lutke's information report.

 6     However, as regards Mr. Malinic's interview, transcript, and summary, we

 7     will not admit them because we did not allow any question to be answered

 8     at the end of the day.

 9             That said, we'll adjourn for today, and we'll meet again at 9

10     o'clock tomorrow morning.

11                           --- Whereupon the hearing adjourned at 1.37 p.m.,

12                           to be reconvened on Thursday, the 11th day of

13                           September, 2008, at 9 a.m.