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
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
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
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
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
24 MR. BOURGON: Indeed, Mr. President. He will be the first
25 witness for the Defence.
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
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
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
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.
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
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
25 JUDGE KWON: Thank you, Professor. I take it that would be
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
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
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.'"
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
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
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.
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
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.
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
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
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
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?
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
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
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
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
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
25 alleged encounter occurred of at that time not conducting a photo board
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
1 it would have been to get them this 1999 when -- what was going on then
2 with Serbia
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.
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
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
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?
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
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
14 DutchBat who live in the Netherlands
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
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
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,
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
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."
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
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?
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
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
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
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.
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
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?"
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.
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.
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
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
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
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
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.
1 But I simply at this point in time join the objection
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
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
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
5 the former Yugoslavia
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
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
14 A. I have my own private company. I've had it for 30 years now. I
15 had it in the former Yugoslavia
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
24 the Jewish community in Zagreb
25 the duties that that entailed, I handed my company over to my son, and I
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
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
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
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
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
21 Jewish community of Zagreb
22 Distribution Committee, similar to Caritas, who received a query in
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
1 exchange of prisoners between the former Yugoslavia and Croatia
2 own, but when it comes to Sarajevo
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
15 could see that Bosnia
16 former Yugoslavia
17 community in Sarajevo
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
21 to us for help. Actually, they first turned to Joint headquartered in
23 community in Sarajevo
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
1 not for the reasons of religious threats but because of the threat of a
2 war. The Jewish community in Sarajevo
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
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
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
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
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
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
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
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
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
16 Jewish community of Sarajevo
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
24 Q. Are you familiar with the name --
25 A. [In English] Excuse me, excuse me.
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?
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
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
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
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
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
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
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
25 A. Zarko Keza -- well, he was assigned to me from the SIS, which is
1 the equivalent of the KOS
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
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
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
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
4 of which were legitimate and registered members of the Jewish communities
5 of Sarajevo
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.
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]
1 JUDGE KWON: Good morning, Professor. If you could take a solemn
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
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
25 Q. Mr. Gogic, can you please tell us your qualifications, your
2 A. I completed the faculty of theology the department of psychology
3 and pedagogy in 1971 in Sarajevo
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
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
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
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.
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
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
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
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
24 604/02 of the same court.
25 MR. NIKOLIC:
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,
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
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
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
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
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
1 attendance certificates testifying to the -- to their successful
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
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
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
24 Q. Of all these tasks, did you complete all of them? Were you able
25 to complete all of them?
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
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
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
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
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?
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
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
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 --
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
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
1 that it would have any significant effect on the authenticity of this
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 --
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
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
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
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
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
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
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
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
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.