Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12

1 Thursday, 24th June, 1999

2 (Evidentiary hearing)

3 (Open session)

4 (The accused entered court)

5 --- Upon commencing at 2.35 p.m.

6 THE REGISTRAR: Good afternoon, Your

7 Honours. IT-95-8-PT, the Prosecutor versus Dragan

8 Kulundzija.

9 JUDGE MAY: The appearances, please.

10 MR. NIEMANN: If Your Honours please, my name

11 is Niemann, and I appear with my colleague

12 Mr. Waidyaratne for the Prosecution. The case manager

13 for the Prosecutors is Ms. Reynders, Your Honours.

14 MR. OSTOJIC: Good afternoon, Your Honours.

15 John Ostojic on behalf of Dragan Kolundzija.

16 JUDGE MAY: Thank you.

17 Can the accused hear in a language which he

18 understands?

19 THE ACCUSED: Yes, Your Honours.

20 JUDGE MAY: Thank you.

21 This hearing was ordered after an initial

22 appearance of this accused on the 14th of June. It was

23 then suggested that the accused is not the man named in

24 the indictment, and this hearing was ordered to

25 determine whether the accused is in fact the man in the

Page 13

1 indictment. Written submissions were ordered, and it

2 may be helpful if I summarise the submissions which

3 have been received.

4 The Prosecution have made their written

5 submission dated the 21st of June. It contains a

6 number of affidavits and a written declaration

7 certifying that this accused has been identified by

8 three people who confirm, having seen photographs of

9 him, that he is the man in the indictment, named in the

10 indictment.

11 The Defence have submitted a document from

12 Mr. Vucicevic dated the 22nd of June. It is a fairly

13 lengthy document, most of which deals with the merits

14 of the case, but it does include this sentence: "I

15 withdraw the request for the evidentiary hearing set up

16 for the purpose to establish the identity of the

17 accused named in the indictment as 'Dragan Kulundzija'"

18 and explaining that there had been a misunderstanding,

19 and for that reason the point had been raised. Those

20 are the written submissions which are before the

21 Chamber.

22 Mr. Ostojic, do you confirm that the

23 application for a hearing is withdrawn, or do you wish

24 to pursue the point about the identity of the accused?

25 MR. OSTOJIC: If I may, Your Honour, I have

Page 14

1 two points on that. One, after reviewing the

2 Prosecution's submission, we think that, as this

3 honourable panel has probably reviewed and found, that

4 it is grossly flawed, and that by way of example, the

5 affidavits are contradictory to one and each other.

6 The point is that Mr. Kolundzija is not the

7 man who was identified in the indictment. When asked

8 with Mr. O'Sullivan, who was interviewing him earlier,

9 "Is this you," and by pointing at the paragraph in the

10 indictment, he identified himself and said, "This is

11 not the way I spell my name; it is not my birth date;

12 nor is it my place of birth." However, Mr. Kolundzija

13 did acknowledge to Mr. O'Sullivan that that was the

14 nickname that he was known by at that time, "Kole."

15 Subsequent to that, Mr. O'Sullivan appeared

16 before the Tribunal. I spoke to him briefly today, and

17 I spoke with my client as well. He was from time to

18 time at the camp; there's no denial on that. But I

19 think the Prosecution, in their submission, when they

20 informed this panel that they have the burden of proof,

21 they still have that burden of proof on this

22 indictment, and they still carry the burden of proof.

23 The only issue I disagree with is that the

24 burden of proof is not prima facie evidence; it's not

25 just on its face. But even if we were to accept their

Page 15

1 point of view on the burden of proof, the affidavits in

2 and of themselves fail to adequately and appropriately

3 identify this gentleman as the person who is sought in

4 this indictment.

5 And I point out one affidavit or one

6 statement that may be -- and I say this very

7 cautiously -- that may be -- have some weight in his

8 credibility, and that is the affidavit of Mr. Dominik

9 Smyth. If we --

10 JUDGE MAY: Mr. Ostojic, before you go on,

11 I've already read out Mr. Vucicevic's letter, document,

12 to the Tribunal, in which he says he withdraws the

13 request. Now, he is, as I understand it, your lead

14 counsel.

15 MR. OSTOJIC: That's correct, Your Honour.

16 And as I opened, I did say that we are standing by

17 that, but I'd also like to point out to the Court, in

18 the very last paragraph of that first page, he

19 continues to state that the -- and may I quote: "The

20 Prosecutor has committed a serious mistake not only in

21 identity but in failing to establish what in particular

22 Kole failed to do prevent ..." et cetera, following on

23 the second page of his brief.

24 With all due respect, Your Honour, if the

25 issue here today is whether Mr. Kolundzija was at the

Page 16

1 camp at any time, we acknowledge that. We do not have

2 a dispute with that. We do have a dispute with the

3 Prosecution's affidavits, because they are flawed, and

4 we are willing to challenge those affidavits.

5 Particularly, there are exhibits there which

6 purportedly bear Mr. Kolundzija's signature. There has

7 been absolutely no authenticity or handwriting expert

8 to verify to that signature, yet, boldly, the

9 Prosecutor makes their own handwritten expert opinion

10 and renders it to the Court, when in fact, after

11 consulting with my client, at the very least one of the

12 exhibits -- one that the Prosecutor is relying on most

13 heavily -- does not bear his signature at all.

14 JUDGE MAY: Yes, but there are other matters

15 of evidence which I've referred to in which your client

16 is said to be identified by various witnesses as being

17 the man. So even leaving aside any reference to

18 handwriting, there is other evidence on which the

19 Prosecution say they can produce a prima facie case

20 that your client is the man in the indictment; added to

21 which, on his own admission, he was in Keraterm.

22 Now, as I understand your position, what

23 you're saying is that what is alleged against him in

24 this indictment is denied, and it's denied that he

25 behaved in the way which is set out. And that, of

Page 17

1 course, is an issue which has to be determined at a

2 trial, isn't it?

3 MR. OSTOJIC: Your Honour, that's part of our

4 request, yes, we are going to deny all the issues. But

5 our other request is also -- it's not just the

6 signature. If this Honourable Panel were to just look

7 at the first two exhibits that the Prosecution

8 tendered, the first exhibit, by Mr. Dominik Smyth

9 clearly sets forth that Mr. Smyth never knew who the

10 identities were in the photograph that he purportedly

11 showed to two of the witnesses. In the second

12 affidavit, interestingly enough, the affidavit clearly

13 states that he knew it was Mr. Kolundzija who was in

14 the affidavit, and also there were newspaper articles,

15 as all the other affidavits seem to suggest, that were

16 contemporaneously given with these witnesses when they

17 made this purported identification.

18 So it's for that reason that we think it is

19 flawed, but the very first affidavit of Mr. Smyth, we

20 believe, if you're going to take any affidavit, that

21 one clearly doesn't even say or suggest, by the one

22 witness that identifies him, and only one did out of

23 those four, he doesn't even put him in the camp. So

24 they can't even meet their own purported burden of a

25 prima facie case, which I object to, but -- for the

Page 18

1 record.


3 (Trial Chamber deliberates)

4 JUDGE MAY: Mr. Ostojic, the Chamber want to

5 be certain as to your position now.

6 We take it that you've concluded your

7 submissions. Do you wish to call any evidence?

8 MR. OSTOJIC: We do not believe that it is

9 our burden, so we do not at this time, Your Honour.

10 JUDGE MAY: Do you ask us to rule on the

11 matter?

12 MR. OSTOJIC: Yes, we do, Your Honour.

13 JUDGE MAY: Thank you.

14 (Trial Chamber deliberates)

15 JUDGE MAY: Mr. Niemann.

16 MR. NIEMANN: If Your Honours please, just

17 addressing some of the matters that were raised by my

18 colleague.

19 The position with respect to the affidavits I

20 think is misunderstood. There was, in fact, two

21 photographs, a photograph which I believe was taken to

22 a witness or a number of witnesses prior to arrest, and

23 then photographs taken after arrest, the photographs

24 taken after the arrest being photos that show the

25 person who has been remanded, and in our submission

Page 19

1 that process is necessary to establish that not only

2 the person prior to the arrest but after the arrest was

3 the same.

4 The confusion over the date of birth, place

5 of birth and spelling is something that the

6 Prosecution, right from the very outset, Your Honours,

7 indicated was in error, and it was something that we

8 also indicated was something that we would be seeking

9 to resolve by way of an amendment to the indictment.

10 Your Honours are no doubt aware that quite

11 often this situation occurs where you have different

12 people with the same names, and one has to go to

13 lengths such as discovering the names of parents and so

14 forth in order to differentiate between.

15 The situation is, Your Honours, that the

16 Prosecution relied upon the information supplied to it

17 by its witnesses at the time, and this information has

18 now been subsequently checked and corrected. It seems

19 that it is true that there would seem to be two persons

20 by the name of Kolundzija, with different dates of

21 birth and spelling.

22 Your Honours, I have here, which I could hand

23 to the Chamber and to the Defence, a copy of a letter

24 that we have received from the government of the

25 Federation of Bosnia-Herzegovina in which this

Page 20

1 situation is set out and the two names are mentioned.

2 If I may, Your Honour, I could hand that to you, and

3 that would clearly show the two separate names and the

4 two different persons. So if I may, Your Honour, I'll

5 hand that up.

6 This is a document that has been translated,

7 Your Honours. I give this document to Your Honours in

8 order to demonstrate that according to the records of

9 the government of the Republic of Bosnia-Herzegovina,

10 they have on their records two persons by the name of

11 Kolundzija, with different spellings and with different

12 birth dates.

13 The relevant Kolundzija we say, Your Honours,

14 is the gentleman referred to second in the document on

15 page 5 of the translated copy, with his father's name

16 of Milan, M-i-l-a-n; date of birth, 19th of December,

17 1959, and with the spelling K-o-l-u-n-d-z-i-j-a, and

18 that's an amendment to the indictment which we're

19 seeking to make at this moment, Your Honours.

20 In addition to that, Your Honours, the

21 Prosecution has arranged for two witnesses to be in

22 attendance here today. Should Your Honours wish to

23 hear from those witnesses, I can call those witnesses.

24 In my submission, their evidence will go further to

25 establish the identity of the person in remand as being

Page 21

1 the accused in the indictment.

2 In our submission, Your Honours, the person

3 to whom the witnesses refer has the nickname Kole,

4 K-o-l-e, and indeed it is the Prosecution's case that

5 the accused person Kole is the person referred to in

6 the body of the indictment in terms of the charges.

7 So in our submission, if one corrects the

8 spelling of the name, the place and date of birth,

9 which is clearly in error, then in our submission all

10 other aspects of the indictment are correct in

11 reference to the person Kole.

12 JUDGE MAY: In Mr. Vucicevic's document,

13 there is a reference to the accused having that name,

14 Kole.

15 MR. NIEMANN: That's correct, Your Honours,

16 yes.

17 JUDGE MAY: If I'm right, being at Keraterm.

18 MR. NIEMANN: That's correct, Your Honour,

19 yes.

20 JUDGE MAY: The dispute apparently from that

21 document is, of course, what he did at Keraterm.

22 MR. NIEMANN: Yes, of course. That would be

23 our interpretation of it, Your Honours.

24 It seems to me that -- I was a little

25 confused by the submission made this afternoon, because

Page 22

1 I would have thought that really there is no dispute

2 between the Defence and the Prosecution that the person

3 in remand is, in fact and indeed, Kole, who was at

4 Keraterm and is referred to in the indictment. The

5 dispute arises over what he did there, and of course

6 that's a matter for trial. But there may be a

7 different position now, Your Honours. I'm not sure.

8 But that certainly would be the position as I would

9 interpret it, having regard to the Defence submission

10 that was filed on the 22nd of June.

11 JUDGE MAY: Now the issue is not whether Kole

12 was at Keraterm or not, it's what he did when he was

13 there?

14 MR. NIEMANN: Yes. I think, into such

15 matters as to whether he had command and control and so

16 forth.

17 JUDGE MAY: Yes. It's stated that he was a

18 member of the reserve police unit in Keraterm.

19 MR. NIEMANN: Indeed, Your Honour, the

20 principal charge in the indictment relates to a

21 massacre in one of the rooms, room 3 of the Keraterm

22 camp, and from my reading of the submission provided by

23 the Defence on the 22nd of June, 1999, there's not so

24 much a dispute as to whether or not the accused Kole,

25 Kolundzija, was there at the time, it's a question of

Page 23

1 whether he had any authority to do or prevent anything

2 from happening at that time, if my interpretation is

3 correct on that.

4 I rely to what is referred to on the top of

5 the second page, Your Honour. It says, at the

6 second-to-last sentence, "Moreover, he is very

7 compassionate --" sorry. I think I've misstated it,

8 Your Honour. I'll just see if I can find the

9 reference.

10 Yes, I just can't pick it out at the moment,

11 Your Honour, but there is indeed a reference there to

12 the superior being present, I believe -- yes, here it

13 is, Your Honours. It's mentioned on the first page,

14 the second-to-last paragraph, where they say in the

15 second sentence: "Prior to the shooting Kolundzija was

16 in charge of only 12 men. Before the firing was

17 commenced, about 80 to 100 soldiers were brought in

18 indictment avers, but does not connect and never could

19 assign command to the reserve policeman of a military

20 unit. In addition, the superior police officer,

21 Commander Zivko Knezevic, brought in ten policemen from

22 a different police station to control the disturbance

23 or riots in the camp. One of the Prosecutor's

24 statements attached to the application of the amended

25 indictment corroborates this averment ..."

Page 24

1 It seems to me, Your Honour, that even the

2 question of presence of the time is not necessarily in

3 dispute, it's a question of who had control and

4 command. But that, of course, is not a matter for

5 resolution today. It's a matter for the trial, and

6 certainly we're not in any way suggesting Your Honours

7 should resolve that in today's hearing.

8 JUDGE MAY: Thank you.

9 JUDGE BENNOUNA: (Interpretation) Mr. Niemann,

10 the two witnesses that you suggested could be called to

11 the witness box, is it in order to testify that we are

12 indeed dealing with Dragan Kolundzija, who was the

13 commander of the camp when the alleged acts occurred?

14 Is it to testify the position of the accused in the

15 hierarchy, the position of Dragan Kolundzija? That is

16 the question that I am asking, because as the President

17 has just said, it is not a question of knowing whether

18 he was in the camp or not but rather what his

19 composition was in the hierarchy among the guards of

20 the camp.

21 MR. NIEMANN: Your Honours, with respect to

22 his position in the camp, yes, the witnesses can attest

23 to that. The question of what command and control he

24 had would, I submit, be fully explored as a matter for

25 trial. But these witnesses are witnesses who were

Page 25

1 brought here for the purposes of doing two things; one,

2 saying that there was, in fact, a person called

3 Kolundzija in the camp who was referred to by the

4 street name or nickname of Kole, and in our submission

5 we anticipate that these witnesses will be able to say

6 that the person in the dock is indeed that person,

7 Kole.

8 JUDGE MAY: Mr. Ostojic, do you want to say

9 anything more?

10 MR. OSTOJIC: If I may, Your Honours, two

11 points.

12 We cannot anticipate or speculate who the

13 Prosecutor is looking to indict. In their very own

14 indictment, they suggest that 80 to 100 soldiers were

15 brought in on the one night that my client is being

16 accused of, on that one evening on July 24th; 80 to 100

17 men.

18 They've established, by their very own

19 affidavits, by their very own submissions, that there

20 was, at the very least, one other Kolundzija there.

21 It's not our burden of proof.

22 But what I would like to point out to the

23 panel today is that if you just compare briefly the

24 first two affidavits, and if you look to the gentleman

25 by the name of Fikret Alukic in Mr. Dominik Jonathan

Page 26

1 Pierre Smyth's affidavit, Mr. Alukic cannot identify

2 Mr. Kolundzija. He in fact, on the second page of the

3 affidavit, states he did not recognise the man on the

4 right of the photograph. We know, without looking at

5 the photograph, that the man on the right of the

6 photograph, according to their own witness above that,

7 Mr. Varmaz, was purportedly Mr. Kolundzija.

8 Compare that, Your Honours, with two days

9 later the purported sworn statement and affidavit which

10 all of a sudden Mr. Alukic recognises Mr. Kolundzija,

11 and he recognises him how? The distinguishing factors

12 are relatively clear, because it states in the first

13 paragraph, or I should say in the third paragraph, that

14 he knew who Kolundzija was. That entire process, we

15 submit, was poisoned, that newspapers were submitted to

16 these witnesses.

17 So on June 4th, a witness cannot recognise

18 Mr. Kolundzija in a photograph. The same photograph

19 and summary is presented to him two days later, and

20 apparently he can identify him with relative ease. Not

21 only can he identify him in the photograph, but in the

22 second affidavit he can now identify who he is and that

23 he saw him at the camp.

24 JUDGE MAY: I'm sorry, I'm not with you on

25 this.

Page 27

1 I've got the affidavit of Mr. Smyth, and that

2 refers, first of all, to somebody called Suad Varmaz,

3 who looked at a photograph apparently of your client

4 and said that he was 100-per-cent sure. There is then

5 a reference to Fikret Alukic, who was not sure.

6 Now what are you referring to after that,

7 Mr. Ostojic?

8 MR. OSTOJIC: In the second affidavit that

9 was submitted, I think it's appendix B or annex B, as

10 they've identified it, is the affidavit of a Hans

11 Oelvebro, O-e-l-v-e-b-r-o. In this second affidavit

12 again, these witnesses in Sanski Most, two days later

13 apparently were asked to identify Mr. Kolundzija.

14 Before I go into that detail, remember

15 Mr. Varmaz's statement --

16 JUDGE MAY: But are you really disputing that

17 this is Kole?

18 MR. OSTOJIC: I missed the question, Your

19 Honour.

20 JUDGE MAY: Are you disputing that the man

21 here is Kole, that that's his nickname?

22 MR. OSTOJIC: Your Honour, my client's

23 nickname is Kole, as I say he was, but I would hate to

24 see any judicial system indictment or convict an

25 individual because someone has attributed a nickname to

Page 28

1 him or has called him something that isn't by his right

2 and full name.

3 Respectfully, I'm submitting this to the

4 Court, and if you examine just these two affidavits,

5 you'll see conspicuously missing from the first

6 affidavit of Mr. Smyth, and I apologise if I'm

7 mispronouncing his name, he doesn't put Mr. Kolundzija

8 at the camp. Subsequent to that, according to Mr. Hans

9 Oelvebro, both witnesses clearly identify him in the

10 photograph, and then they add the additional verbiage,

11 which we think is suspect, as I mentioned before, and

12 for those reasons.

13 JUDGE BENNOUNA: (Interpretation) Excuse me,

14 Mr. Ostojic. He also identified him as a shift

15 commander of the Keraterm camp in 1992. This is what

16 we find in the affidavit, not only as Dragan Kolundzija

17 but also as shift commander of the Keraterm camp in

18 1992.

19 MR. OSTOJIC: What affidavit are you

20 referring to?

21 JUDGE BENNOUNA: (Interpretation) The one that

22 you yourself referred to, Hans Oelvebro, signed on the

23 18th of June, 1999.

24 MR. OSTOJIC: I recognise, Your Honour, that

25 the affidavit does point that out, my point being that

Page 29

1 if we simply compare the two affidavits, they are

2 inconsistent. They are fraught with errors, and

3 there's flaws within those affidavits.

4 It is not logical, and common sense would

5 dictate to us, that if two days before an individual

6 cannot identify someone, and subsequent to that they

7 are offered newspapers, as we know from the subsequent

8 affidavits, and the individual who was enquiring of

9 those witnesses knows the identity of the person in the

10 photograph, that we should not in this proceeding or in

11 any criminal proceeding accept that affidavit as being

12 true.

13 If you look at Mr. Smyth's affidavit, it is

14 clear and concise and very lengthy. It says, "I did

15 not know the identity of the individuals," and he gives

16 his honest statement, what Mr. Varmaz said. He does

17 not, at any time, mention Mr. Kolundzija in the camp at

18 all, and that was my point.

19 JUDGE MAY: So, Mr. Ostojic, before you sit

20 down, let me see what you're submitting.

21 You're submitting that this accused,

22 according to Mr. Vucicevic in his document, was a

23 member of the reserve police unit in Keraterm, has the

24 nickname Kole, as alleged in the indictment, but you're

25 submitting that at this stage, before a trial, we ought

Page 30

1 effectively to find him not guilty and release him?

2 MR. OSTOJIC: It would please us most

3 definitely, Your Honour. However, that's not our

4 request, and I think it would be premature.

5 What I believe is that the Prosecutor

6 correctly identified their burden of proof and said,

7 "Before we can go forward," acknowledging that there

8 are at least two individuals with similar if not

9 identical names, that they carry the burden of proof,

10 not Mr. Vucicevic, not myself, nor my client, but the

11 Prosecution carries the burden of proof to establish

12 that the person they are alleging in this complaint is

13 truly this individual. And by their submissions, I'm

14 offering to this panel that they failed in their burden

15 and they did not meet that burden, by the very fact

16 that the affidavits are inconsistent, by the very fact

17 that the affidavits are flawed, by the very fact that

18 the affidavits are poisoned by the process in which the

19 affiants admit themselves they were requesting the

20 identity of the persons in the photograph.

21 JUDGE MAY: Thank you.

22 JUDGE ROBINSON: Mr. Ostojic, but statements

23 on behalf of the Prosecution in cases of this kind are

24 quite often flawed and contradictory, but that doesn't

25 mean that you don't go to trial. It's at trial that you

Page 31

1 settle those contradictions to a degree where you are

2 satisfied beyond a reasonable doubt. We are not at

3 that stage here.

4 MR. OSTOJIC: I agree with you, Your Honour,

5 but my point, if I can clarify, is that they have the

6 burden to establish a prima facie case. From the

7 documents and submissions they've tendered to us, I do

8 not believe that they have met their burden. I simply

9 do not believe that, not because they are inconsistent

10 but because they are inconsistent, and, because of the

11 process in which the identification was made by all the

12 other affiants except for Mr. Dominik Smyth, and a

13 careful review of those affidavits clearly show us that

14 the witnesses, when asked to identify, were given

15 newspaper articles showing that there was an indictment

16 of a gentleman by the name of Kolundzija, showing and

17 identifying that this gentleman was in the camp that is

18 at issue here, so those, in and of themselves, are so

19 flawed that it should not be permitted in a criminal

20 proceeding, much less in this honourable proceeding

21 here.

22 The only affidavit, as I mentioned earlier,

23 that may have some credibility is Mr. Smyth, for the

24 reasons as I indicated, but taking that affidavit alone

25 and applying it to the indictment, we cannot see

Page 32

1 anywhere in the affidavit of Mr. Smyth where he or any

2 of his witnesses place Mr. Kolundzija at the camp.

3 It's silent as to that issue. But I would agree with

4 you that the burden of proof is beyond a reasonable

5 doubt at the trial, but I would also suggest

6 respectfully that it is at this level as well.

7 Thank you.

8 (Trial Chamber confers)

9 JUDGE MAY: The Trial Chamber will

10 deliberate.

11 --- Recess taken at 3.15 p.m.

12 --- On resuming at 3.25 p.m.

13 JUDGE MAY: Mr. Niemann, call your evidence.

14 MR. NIEMANN: If Your Honours please.

15 Your Honours, I call the first witness,

16 Sulejman Crnkic. And while the witness is coming to

17 the Court, might I indicate to Your Honours that in

18 respect of the second witness that I call, I wish to

19 make an application for his evidence to not be made

20 public and for the image of the witness not to be shown

21 in public, Your Honours.

22 (Trial Chamber confers)

23 JUDGE MAY: Yes, we'll grant that

24 application.

25 MR. NIEMANN: If Your Honours please.

Page 33

1 JUDGE MAY: Yes. Let the witness take the

2 declaration.

3 THE WITNESS: I solemnly declare that I will

4 speak the truth, the whole truth, and nothing but the

5 truth.

6 JUDGE MAY: Yes, if you'd like to take a

7 seat.


9 Examined by Mr. Niemann:

10 Q. Would you please state your full name?

11 A. Sulejman Crnkic.

12 Q. And where were you born, Mr. Crnkic?

13 A. In Prijedor.

14 Q. And what was your date of birth?

15 A. 1956.

16 Q. And up to the period of 1992, where did you

17 live for all of your life?

18 A. Prijedor.

19 Q. And was that in the Prijedor opstina or in

20 the city of Prijedor?

21 A. In the city of Prijedor.

22 Q. And during that period of time, did you come

23 to know a number of the people who lived in and around

24 the Prijedor city area?

25 A. I did.

Page 34

1 Q. And would it be true to say that you knew a

2 lot of people in that town?

3 A. Yes, it would.

4 Q. And during the period of time that you lived

5 in Prijedor, up until 1992, did you come to know the

6 person who had a nickname, "Kole"?

7 A. I did.

8 Q. And can you tell Their Honours how it is that

9 you knew this person with that name, "Kole"?

10 A. I met him in town, as I did all other

11 colleagues, passing by. We didn't have any personal

12 contacts.

13 Q. Perhaps, would it be fair to say that he was

14 a person you knew of, more than that you knew

15 personally?

16 A. Yes, it would.

17 Q. Now, during the course of 1992, in fact in

18 May of 1992, were you arrested?

19 A. Yes, I was.

20 Q. And upon your arrest, where were you taken?

21 A. I was taken to Keraterm.

22 Q. And where were you confined in Keraterm?

23 A. I was confined in room number 2.

24 Q. Now, immediately upon your arrival, was it

25 possible for you to move freely about the Keraterm

Page 35

1 facility?

2 A. Upon my arrival, it was not possible at

3 first, freely. Only when people had to go to the

4 toilet.

5 Q. But did that situation change some eight days

6 later? That is, your ability to move about?

7 A. Yes. After interrogation I was moved to

8 number 1, and I had greater freedom there, freedom of

9 movement.

10 Q. And following your interrogation, some eight

11 days later, were you then able to make observations of

12 who were people that were guards in the camp and other

13 such officials?

14 A. Yes, one could observe them. They were all

15 people we knew from Prijedor and the surroundings.

16 Q. Now, the person that you described a moment

17 ago as "Kole," did you at any stage see that person in

18 Keraterm camp?

19 A. Yes. After a certain amount of time, walking

20 around, I saw him, among others.

21 Q. And did you ever have occasion to speak to

22 him while you were in the Keraterm camp?

23 A. On a couple of occasions we exchanged a few

24 words in passing. Nothing personal.

25 Q. Now, this person, "Kole," did you know his

Page 36

1 name, his proper name, prior to going into the Keraterm

2 camp?

3 A. No, I didn't know.

4 Q. Now, when in Keraterm camp did you

5 subsequently discover his name?

6 A. I learnt it from colleagues who were there

7 with me and who knew him.

8 Q. Did you know this person -- and what name

9 were you given for "Kole"?

10 A. His name was Dragan Kolundzija.

11 Q. And do you know what position or status he

12 had when he was in the camp at Keraterm while you were

13 there?

14 A. He was the leader of a shift.

15 Q. Now, after you were subsequently released

16 from the Keraterm camp, did you ever see or meet this

17 person, Dragan Kolundzija, again?

18 A. Yes, I met him in Brcko, in the street. I

19 think he was in the communications company. It was a

20 building that was used as a command building.

21 Q. And what was he doing at the time when you

22 met him on the next occasion, in Brcko?

23 A. In Brcko was the front line, and he was

24 there.

25 Q. Was he performing military duties, that you

Page 37

1 know of?

2 A. No.

3 Q. Well, can you tell me what he was doing? If

4 you know; if you don't know, it doesn't matter.

5 A. I didn't have any contact with him. Perhaps

6 on one occasion only we exchanged a few words in

7 connection with the camp. In fact, afterwards, we just

8 said hello to each other when we passed each other,

9 "Are you tired or not," and that's all.

10 Q. Tell Their Honours about the time that you

11 discussed with him the camp. Can you firstly tell us

12 what date this was, approximately when it was, the year

13 and month?

14 A. This was in April in '94, I assume. A lot of

15 other things have become mixed up. I changed my

16 battalion, and I went to work in a work-duty unit.

17 Q. And this work-duty unit, did it go to Brcko?

18 A. Yes. Yes, the work unit did work in Brcko.

19 Q. And was it while you were performing duties

20 in the work unit that you'd seen the person "Kole" who

21 you now know as Dragan Kolundzija?

22 A. We met in the morning, when we went to work

23 on the division line.

24 Q. Would you tell Their Honours what he said to

25 you when you met, as best you can remember, what he

Page 38

1 said to you?

2 A. He told me not to tell anybody that I was in

3 the camp, because there were a lot of guards on the

4 dividing line who were guards in the camp, so to tell

5 my colleagues not to tell that to anybody.

6 Q. And did you see this as being an offer of

7 help or assistance to you, to protect you?

8 A. In any case, it was protection for me and for

9 the others who were with me, so that we could know how

10 to behave ourselves.

11 Q. Now that person, "Kole," who you subsequently

12 knew as Dragan Kolundzija, who you saw before the war,

13 saw in the Keraterm camp, and then subsequently talked

14 to in Brcko, would you look around the courtroom and

15 see if you can see that person here today.

16 A. Yes, that person is sitting right there in

17 the middle, between those two gentlemen right there.

18 JUDGE MAY: Yes, the transcript should say

19 that the witness has identified the accused.

20 MR. NIEMANN: No further questions, Your

21 Honour.

22 JUDGE MAY: Mr. Ostojic?

23 MR. OSTOJIC: Yes, thank you, Your Honour.

24 Cross-examined by Mr. Ostojic:

25 Q. Mr. Crnkic, when were you released from the

Page 39

1 Keraterm camp?

2 A. On August 3rd, 1992.

3 Q. From August 3rd of 1992 up until April of

4 1994, did you have an occasion to see Mr. Kolundzija?

5 A. No, I didn't have any opportunity to see him.

6 Q. Prior to May of 1992, can you give us an idea

7 how many times you saw Mr. Kolundzija?

8 A. I can't really respond to that. It's a small

9 town, and we constantly meet when we're not doing any

10 work.

11 Q. Would you agree with me, sir, that it was

12 less than five occasions that you saw Mr. Kolundzija

13 prior to May of 1992?

14 A. Five, six times, seven.

15 Q. What is your best estimate, sir? Five, or

16 seven?

17 A. Five times, perhaps.

18 Q. So over what period of time would you say

19 that you had met Mr. Kolundzija's acquaintance in the

20 years prior to 1992 on those five occasions?

21 A. It was perhaps a couple of years, five or six

22 years before the war.

23 Q. Sir, do I understand your testimony that over

24 a five-to-six-year period, you had come across a

25 gentleman by the name of "Kole" on approximately five

Page 40

1 or so occasions?

2 A. Yes.

3 Q. Sir, in April of 1994, you testified that you

4 had a conversation with Mr. Kolundzija; do you remember

5 that testimony? Who else was present during that

6 discussion?

7 A. It wasn't a discussion. It was just in

8 passing.

9 Q. Okay. Thank you for correcting me. During

10 that passing in April of 1994, who else was present

11 when you exchanged pleasantries and some words?

12 A. No, colleagues who were with me there were

13 present. There were about nine or ten of us in Brcko

14 in 1994.

15 Q. Can you identify those nine or so

16 individuals?

17 A. No, no, I couldn't.

18 Q. You don't remember any of those nine or ten

19 individuals as you sit here today?

20 A. There was one person from Prijedor, the

21 others from different municipalities, from Brcko, Banja

22 Luka, from Ljubija.

23 Q. Can you today, sir, identify the names of

24 those nine or ten individuals that were in the group

25 during this period when you and Mr. Kolundzija, in

Page 41

1 April of 1994, purportedly exchanged a conversation?

2 JUDGE MAY: Well, the witness has said that

3 he can't.

4 MR. OSTOJIC: If I may direct a question to

5 Your Honour. I thought the witness may have

6 misunderstood the question, because he subsequently

7 identified where the witnesses were from, and he

8 mentioned a couple of cities and villages. So I was

9 just restating it in the event that he may have

10 misunderstood it, because his response was actually not

11 responsive, so I put the question to him again for that

12 very reason. So I just needed clarification on that.

13 JUDGE MAY: Well, I think you have it. The

14 answer is, "No."

15 MR. OSTOJIC: Thank you, Your Honour.

16 Q. What, if anything, did you respond to

17 Mr. Kolundzija in April of 1994?

18 A. I just said once that I didn't know anybody

19 and that nobody knew, and that I wasn't going to tell

20 anybody about it.

21 Q. Subsequently, sir, did you tell anyone about

22 this conversation, other than here today?

23 A. The only thing that I said to those boys who

24 were with me was that if anybody is in the camp, don't

25 tell anybody about it.

Page 42

1 Q. [Inaudible]

2 A. No.

3 Q. Sir, do you remember what occurred in June of

4 1992?

5 JUDGE MAY: What does that question mean?

6 MR. OSTOJIC: I can restate it, Your Honour.

7 JUDGE MAY: Yes. Make it clear.

8 MR. OSTOJIC: I apologise.

9 Q. Can you tell us, in June of 1992, what your

10 day-to-day activities were, if you recall?

11 A. I was in the camp. We were walking around,

12 sitting around. Sometimes it was interesting. Many

13 people were beaten up. We were trying to stay alive,

14 to stay out of the way.

15 Q. When you say, "We were walking around," who

16 are you referring to?

17 A. I mean all the people who were in the camp.

18 Q. [Inaudible]... 1992, I believe the Prosecutor

19 asked you approximately eight days upon your arrest,

20 that you saw Kole walking around; correct?

21 A. On May 31st, I was brought to the camp.

22 Q. [Inaudible]... days after May 31st of 1992?

23 A. Yes. I was in one room. They took me for

24 interrogation. From that room, they would take us out

25 only to go to the toilet.

Page 43

1 Q. You mentioned, sir, a room, that you were

2 detained in room number 2; correct?

3 A. Yes.

4 Q. During your entire stay at the Keraterm camp,

5 were you detained in room number 2?

6 A. Only the first eight days that I was in the

7 camp.

8 Q. Subsequently, sir, where were you detained?

9 A. In room number 1.

10 Q. So is it fair to say, sir, from approximately

11 June of 1992, through and including the date of your

12 release August 2nd, 1992, you were detained in room

13 number 2? I mean room number 1.

14 I'm sorry, strike that. If I can repeat the

15 question.

16 Sir, is it fair to state that from June 8th,

17 approximately, 1992, through August 3rd, 1992, you were

18 detained in the Keraterm camp in room number 1?

19 A. Yes.

20 Q. Since April of 1994, can you tell us how many

21 times you either saw, exchanged pleasantries, or had a

22 discussion with Mr. Kolundzija?

23 A. When we went to the front line, we would pass

24 by the command, by the headquarters where they were.

25 That was from the period of April 1994 up until perhaps

Page 44

1 May or April '95. We would meet every time that he was

2 on the shift.

3 Q. Other than -- pardon me.

4 A. Every 15 days.

5 Q. Up until when, sir?

6 A. I worked for about six months there in that

7 place.

8 Q. Sir, are you calculating six months from

9 April of '94, or if you could estimate for me, when was

10 the last time that you saw Mr. Kolundzija?

11 A. I can't really tell you when was the last

12 time that I saw him.

13 Q. Would you agree with me, sir, that it's been

14 approximately three to five years since the last time

15 you saw Mr. Kolundzija?

16 A. From which period?

17 Q. If we would go back three to five years, can

18 we agree, or if you can just tell us what you recall,

19 when was the last time that you saw Mr. Kolundzija,

20 other than here today?

21 A. I didn't see him after that period at all.

22 Q. So approximately April 1994 and possibly the

23 six months thereafter, you had not seen Mr. Kolundzija;

24 correct?

25 A. Later, no.

Page 45

1 Q. Can you explain to me, then, because I do not

2 understand when the last date was when you saw him.

3 A. This is very hard to say, because I was

4 constantly there for about six or seven months and I

5 wasn't going home, I didn't go home at all, so it's

6 very difficult to connect that time with the present.

7 MR. OSTOJIC: Thank you, sir. That's all the

8 questions I have.

9 JUDGE MAY: Any re-examination?

10 MR. NIEMANN: No, Your Honours.

11 JUDGE MAY: Mr. Crnkic, that concludes your

12 evidence. Thank you for coming to the International

13 Tribunal to give evidence. You are released.

14 (The witness withdrew)

15 MR. NIEMANN: Your Honours, with respect to

16 the next witness, I ask that his testimony not be made

17 public.

18 JUDGE MAY: Are you asking for a closed

19 session?

20 MR. NIEMANN: Yes, Your Honour.

21 JUDGE MAY: Very well.

22 (Closed session)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 62

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20 (redacted)

21 (Open session)

22 JUDGE MAY: At this stage of the proceedings,

23 we only need rule as follows: Having heard and seen

24 the witnesses called by the Prosecution, we are

25 satisfied that Dragan Kolundzija, the person remanded,

Page 63

1 is the accused named in the indictment.

2 Now that we are here, although time is short,

3 Mr. Niemann, it may be helpful to consider the future

4 progress of the case.

5 MR. NIEMANN: If Your Honours please: Your

6 Honours, on the last occasion I did indicate to you

7 that we would be seeking to amend the indictment

8 because of the errors in it, but in addition to that,

9 we would be seeking to have this indictment joined with

10 the indictment of Kvocka and others. Your Honours,

11 last Friday we filed an amendment to the indictment

12 with His Honour Judge Vohrah. His Honour is

13 considering that amendment to the indictment at this

14 moment.

15 Your Honours, with respect to where we go

16 from here, it seems to me that there are two courses

17 open, and I'm in Your Honours' hands as to which course

18 Your Honours prefer. If, Your Honours, the reference

19 to the date of birth, the place of birth, and the

20 spelling in the original indictment -- and that's the

21 indictment of Sikirica and others -- is not put to this

22 accused, then it seems to me that he could be read

23 those charges and could plead to that indictment, and

24 then the amendment could take its course, and if

25 confirmed by His Honour Judge Vohrah, that new

Page 64

1 indictment would come back, and this accused would be

2 asked to plead to that indictment.

3 That's one course that could occur, Your

4 Honours, but I think it would be important that the

5 incorrect date of birth, place of birth, and spelling

6 of the name be not put to this accused if that plea is

7 taken.

8 Alternatively, Your Honours, it's hard -- I'm

9 not in a position to assist the Chamber with respect to

10 when the other indictment would be ready, if indeed it

11 is confirmed by His Honour Judge Vohrah. I can say

12 that there's not a lot of new material, so although

13 these confirmation processes can be burdensome at

14 times, this particular indictment is not on the extreme

15 end of that process in terms of material and reading

16 that has to be done, but nevertheless the process must

17 take place.

18 It seems to me that if that indictment were

19 to be ready within one or two weeks, and as I say, I

20 just can't tell Your Honours when that's going to be,

21 then the accused could be brought back, those charges

22 could be read to him from the new indictment, and he

23 can plead to it. That would obviate the necessity of

24 having two initial appearances. The Prosecution is

25 content with whichever course Your Honour chooses or

Page 65

1 prefers to take.

2 JUDGE MAY: So if the indictment were

3 amended, it would seem preferable for the accused to

4 plead to the amended indictment and in correct form.

5 That should be done within 30 days of the initial

6 appearance.

7 MR. NIEMANN: Yes, and if it's not confirmed

8 in that period, we would have to come back and present

9 the old Sikirica indictment.

10 My concern, Your Honour, is about putting to

11 this accused information which is proven incorrect and

12 the difficulty associated with that.

13 JUDGE MAY: Yes.

14 (Trial Chamber deliberates)

15 JUDGE MAY: The date we have in mind for the

16 accused to plead to the indictment would be Tuesday,

17 the 13th of July, it being the amended indictment, it's

18 to be hoped, which will by then be ready.

19 The other matter, Mr. Niemann, is the

20 question of joinder.

21 MR. NIEMANN: Yes, Your Honour.

22 JUDGE MAY: I don't know what consideration

23 is being given to that at the moment.

24 JUDGE BENNOUNA: (Interpretation) There's no

25 transcript.

Page 66

1 JUDGE MAY: There's no transcript coming up

2 on the screen, but I think we can go on to deal with

3 these matters.

4 One consideration is the effect of joining

5 this case to Kvocka, the effect on that trial.

6 MR. NIEMANN: Yes, Your Honours. Under the

7 Rules, it's not, as I understand it, an application

8 that we make to Your Honours in relation to joinder, as

9 such, at this stage. As I have interpreted the Rules,

10 at this stage of the proceedings we approach the

11 confirming Judge for an amendment. Then after that,

12 the Defence presumably would make an application for

13 severance if they were unhappy with the fact that the

14 indictment is joined. I did examine this issue, Your

15 Honour, before we went down this road. Our intention

16 was to join it to the Kvocka indictment and to make the

17 amendment for that purpose.

18 As Your Honours know, we had to have an

19 amendment anyway, the indictment had to be amended,

20 which was to join it to the Kvocka indictment so we

21 could have the one trial, thus obviating the necessity

22 for two trials, and so we proceeded on the basis that

23 we would have this indictment against this accused form

24 part of the Kvocka indictment, and that's the

25 application that is now before His Honour

Page 67

1 Judge Vohrah.

2 Presumably, if the Defence find that

3 objectionable, they might bring an application for

4 severance and, in so doing, would ventilate all issues

5 which concern them. And indeed the other parties to

6 the Kvocka indictment could join in that, if they so

7 wished. That would also permit ventilation of the

8 issue of whether or not the Kvocka indictment will in

9 any way be delayed.

10 In our submission, there's no reason why that

11 should happen. It's not the eve of the trial, and I

12 don't want to argue the point now, Your Honour, but

13 it's not the eve of the trial and so we, ourselves,

14 proceeded on the assumption that we wouldn't be unduly

15 delaying the trial. In the event that that would have

16 been the case, we might have taken a different view of

17 it, but that was the position we took at the time.

18 But I don't think that it can happen any

19 other way in this jurisdiction, where the application

20 is adjourned, is dealt with as an issue before the

21 trial, but I may be wrong on that, Your Honour. But

22 that was my interpretation of the Rules.

23 JUDGE MAY: Thank you. Mr. Ostojic, is there

24 anything you want to say?

25 MR. OSTOJIC: I'm not sure if the time is

Page 68

1 appropriate. We would strenuously object to the

2 Prosecutor's attempt to file an oral motion in joinder

3 with the other matter.

4 As this panel knows, there were two entirely

5 different camps. There is absolutely no mixture of the

6 witnesses, no commonality of any of the factors that we

7 would normally find in a motion such as this.

8 I would just request this panel, if you're

9 entertaining that, that you give us an ample

10 opportunity so that we may brief it and address it

11 fully to you.

12 JUDGE MAY: At this stage, there's no such

13 motion before the Chamber. If one comes, of course you

14 will have the opportunity to deal with it or to apply,

15 if necessary, for severance.

16 If there are no other matters, there simply

17 remains two matters for me to deal with.

18 First of all, dealing with the accused, he

19 will be detained in the detention unit until further

20 order.

21 This matter will be adjourned until the 13th

22 of July, 2.30, for the accused to plead to the

23 indictment.

24 Very well.

25 --- Whereupon the hearing adjourned at

Page 69

1 4.30 p.m., to be reconvened on

2 Tuesday, the 13th day of July, 1999,

3 at 2.30 p.m.