Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11811

1 [Private session]

2 [The accused entered court]

3 [The witness entered court]

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13 Page 11812-11874 redacted private session













Page 11875

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7 [Open session]

8 JUDGE MUMBA: Yes, we are now in open session.

9 There's a ruling the Trial Chamber would like to give now on an

10 oral motion, on an oral motion by the Defence, which was sometime in

11 September. On 14 September, 2001, Mr. Pantelic, on behalf of

12 Mr. Blagoje Simic, by oral motion, invited the Trial Chamber to visit the

13 municipality of Bosanski Samac in order to have a better understanding of

14 the area, the geographical region, the buildings, such as Cafe AS, and the

15 spirit of the place. The Prosecution opposed the motion, that such a

16 motion was unnecessary, and that the Trial Chamber would be able to

17 understand the Bosanski Samac area through witness evidence, photographs,

18 and maps.

19 THE INTERPRETER: The interpreters kindly request Judge Mumba to

20 read slower, please.

21 JUDGE MUMBA: Yes. I will do so.

22 The Trial Chamber at that time reserved its ruling, indicating

23 that it would give its ruling later on, after some evidence had been led

24 in the case. The Trial Chamber has noted submissions of the parties and

25 has observed that this is not the type of case whose verdict will turn on

Page 11876

1 any one geographical feature of the region, but rather on the activities

2 of the accused persons throughout the period covered by the indictment in

3 that region.

4 The majority of the places have been sufficiently described and

5 depicted through the evidence and exhibits, such that the Trial Chamber

6 does not find it necessary to visit the region. The motion is therefore

7 denied.

8 The next matter the Trial Chamber would like to find out from the

9 Prosecution is that some evidence which was tendered during the pre-trial

10 stage, which was supposed to -- and the witnesses were supposed to come

11 for cross-examination, as demanded by the Defence, and the pre-trial

12 Chamber did make that ruling, that if the evidence was going to remain on

13 record, then the witnesses should come for cross-examination. This is in

14 relation to Krnic [phoen], Selak, and Doko, I think.

15 MR. DI FAZIO: That's right, yes.

16 As I understood the ruling, if Your Honours please, if the

17 Prosecution produced those witnesses, then the -- and sought to introduce

18 into evidence the transcript.

19 JUDGE MUMBA: Yes. Yes.

20 MR. DI FAZIO: -- then the Defence would have the right to

21 cross-examine those three witnesses. We do not now seek to tender into

22 evidence those particular --

23 JUDGE MUMBA: Transcripts.

24 MR. DI FAZIO: -- transcripts.

25 JUDGE MUMBA: Very well.

Page 11877

1 MR. DI FAZIO: I should point out that indeed one of those

2 people -- one of those three witnesses, a gentleman named Kranjic [phoen],

3 has passed away, in fact.

4 JUDGE MUMBA: Very well. Anyway, you're not tendering their

5 transcripts. And that leaves only the transcripts and the records of

6 Dr. Gow.

7 MR. DI FAZIO: That's right.

8 JUDGE MUMBA: The pre-trial Chamber ruled that he had been

9 sufficiently cross-examined and ruled against the Defence on

10 cross-examination.

11 MR. DI FAZIO: Yes. So his testimony should go in.


13 MR. DI FAZIO: May I ask -- I don't know how you want to proceed

14 procedurally, so to speak. I would expect that you would require the

15 Prosecution to physically produce transcripts and have them tendered and

16 marked and given an exhibit number. I don't know if the Chamber views it

17 as sufficient that the filing is enough.

18 JUDGE MUMBA: I think it's better to properly tender them.

19 MR. DI FAZIO: I respectfully agree. That's the course the

20 Prosecution would like to take. And I would like to be given some time to

21 get the transcripts ready, and we could produce copies, make copies for

22 all of the Judges and make sure that they're given a proper exhibit

23 number, and, with respect, that is the way to go, as far as the

24 Prosecution is concerned.

25 JUDGE MUMBA: Yes. I think that could be done when we resume our

Page 11878

1 proceedings in September.

2 MR. DI FAZIO: Yes, that can be done.

3 JUDGE MUMBA: Anything else?

4 MR. DI FAZIO: Yes.

5 MR. PANTELIC: Your Honour, on that topic --

6 JUDGE MUMBA: No, no. First --

7 MR. PANTELIC: On this topic --

8 JUDGE MUMBA: Yes. For --

9 MR. PANTELIC: Yes. I would like to respectfully inform this

10 Trial Chamber, and also I would like to refresh the memory of my learned

11 friend, who at that time was not on the team, but his immediate superior,

12 colleague Mr. McCloskey was at that hearing held on the 25th of July,

13 2001.

14 Fact number 1 -- I do apologise. Maybe my friend was there. Fact

15 number 1, Your Honours: The transcripts related to the witness Doko,

16 Krnic, and Selak, in fact by the ruling of the pre-trial Chamber was --

17 were admitted, so there is not any space now to double admit something

18 which was admitted.

19 JUDGE MUMBA: No, but the Prosecution have said that they're

20 not -- they don't wish to have these transcripts on record.

21 MR. PANTELIC: That's one thing, Your Honour --

22 JUDGE MUMBA: And let me read the ruling of the pre-trial Chamber

23 then, because these transcripts and the relevant exhibits are admitted

24 subject to cross-examination.

25 MR. PANTELIC: Yes. But let's take one view, a larger view on the

Page 11879

1 topic. Your Honour, you -- it's an indisputable fact that on that

2 particular hearing we discussed many expert witness testimonies from the

3 other proceedings.

4 JUDGE MUMBA: Yes, but the ruling of the Trial Chamber here, of

5 the pre-trial Chamber here, is clear.

6 MR. PANTELIC: No, no. Your Honour shall the bottom line is the

7 Defence is now in an unfair position because we have to look at the

8 totality of that ruling. That ruling was made when the Prosecution sought

9 to admit a number of 92 bis testimonies.

10 The conclusion is: Certain number is admitted without a right of

11 the Defence to cross-examine these witnesses, and some kind of balance was

12 made by the pre-trial Chamber that the other number of the witnesses will

13 come to be -- will be ready for cross-examination, which means, given one

14 general look on the topic, now it will be absolutely unfair to the Defence

15 to -- by this manoeuvre of the Prosecution, to say, "Now we don't want

16 these three witnesses." But in that case, the position of the Defence

17 is: No, we don't need any of the testimonies, including Gow, and all

18 others which was related to the then topic. Because at the beginning we

19 have to start what was the position of the Prosecution. So I firmly

20 oppose to this approach, Your Honour.

21 JUDGE MUMBA: Mr. Pantelic, these are two -- these are three

22 different witnesses, and Dr. Gow is a different witness, and the record is

23 clear as to how the pre-trial Chamber approached his evidence.

24 MR. PANTELIC: Your Honour, may I --

25 JUDGE MUMBA: There is nothing on record to say that the pre-trial

Page 11880

1 Chamber was balancing that. If these transcripts are admitted without

2 cross-examination, then these transcripts will be admitted with

3 cross-examination. There is nothing on record to say that.

4 MR. PANTELIC: Of course. Of course, Your Honour. In law there

5 is various angles of view. Let me explain my position.

6 Your Honour, the main issue is the international -- the nature of

7 the conflict, and for that reason, the Prosecution started with a certain

8 approach based on 92 bis, from various issues. So I think -- I believe,

9 and I am sure --

10 JUDGE MUMBA: But Mr. Pantelic, to cut the story short, during

11 your Defence case you can bring all the evidence that you wish to bring to

12 the Trial Chamber, and if you want any of these transcripts, you know the

13 procedures, Mr. Pantelic, so there is nothing that has been cut out from

14 the Defence in proceeding with their defence.

15 MR. PANTELIC: Your Honour, that's the main issue. I'm saying

16 that if the Prosecution sought, let's say, five or six witnesses which

17 related to the nature of the conflict at that time, and the pre-trial

18 Chamber, given the fact that that was the issue, made a ruling in some

19 kind of balance, now the position of the Defence is not whether we shall

20 make a -- and all our witnesses or maybe admit certain transcripts. We

21 that it is not fair for the Defence now to have even Gow, Dr. Gow, and all

22 other, you know, on the back door statement introduced in these

23 proceedings. That's not fair.

24 JUDGE MUMBA: No, that was not back door. That was not back

25 door. There is nothing on record to suggest that Dr. Goy's evidence --

Page 11881

1 transcripts and whatever the pre-trial Chamber stated was back door.

2 There's nothing to say that. And that's offensive, because you're

3 suggesting that the pre-trial Chamber did something improper,

4 Mr. Pantelic, and you must --

5 MR. PANTELIC: No, Your Honour. It was not the meaning. No, no,

6 Your Honour.

7 JUDGE MUMBA: There is nothing else -- Mr. Pantelic, there is

8 nothing else --

9 MR. PANTELIC: The reaction of the Prosecution was --

10 JUDGE MUMBA: Can you sit down.

11 MR. PANTELIC: Yes, I can, but I want to have a ruling on that,

12 Your Honour, because that's a motion. I have a motion -- I just made a

13 motion with regard to these procedural matters, Your Honour, because the

14 Defence is of the opinion that we are not equally treated for this

15 particular reason because the Prosecution is well obliged to - I don't

16 know - to annul all 92 bis statements with regard to the nature of

17 conflict, or this Defence will be allowed to call these three witnesses

18 for cross-examination, by way of -- I mean two, because one is deceased,

19 unfortunately. By way of judicial assistance or subpoena or whatever. I

20 mean, things -- because we are now prevented with the procedural matters,

21 Your Honour. That's the bottom line of my submission.

22 So I have a motion now. I try to explain that. If you need in

23 writing, I can do that in writing. No problem.

24 JUDGE MUMBA: Mr. Pantelic, I think what you must understand is

25 that these transcripts are no longer part of the record. They do not form

Page 11882

1 part of the evidence of the Prosecution case.

2 MR. PANTELIC: I understand that perfectly well, Your Honour, but

3 Dr. Gow's transcript.

4 JUDGE MUMBA: It's only Dr. Gow, yes. Dr. Gow remains on record,

5 as per ruling of the pre-trial Chamber.

6 MR. PANTELIC: Yes, and we are opposing that. I mean, the

7 Prosecution should retract these -- or we should call now we are --

8 JUDGE MUMBA: No. You see, Mr. Pantelic, the problem is you don't

9 like listening when you're told that you listen to what is going on.

10 Dr. Gow's evidence, the transcript, and the -- all the cross-examination

11 that was admitted at pre-trial stage will remain, and the pre-trial

12 Chamber had decided that the cross-examination was sufficient, it

13 overruled the Defence's request for cross-examination, and that will

14 remain as it is. The other witnesses, the transcripts are no longer part

15 of the record.

16 MR. PANTELIC: Yes, Your Honour. But let me tell you: At that

17 time, the trial -- the pre-trial Chamber was of the opinion that in

18 totality, they ruled for a certain number to be admitted and to other,

19 subject to cross-examination. What would be the situation here

20 hypothetically speaking, if at that time the Prosecution sought to be

21 admitted only Dr. Gow or Dr. Greves or whatever without Selak, Osman

22 [phoen], and Krnic, then maybe the Trial Chamber did -- will rule that we

23 have a right for cross-examination, Your Honour? Because it was not only

24 Dr. Gow at issue. It was five or six expert witnesses. That's the point

25 of my submission.

Page 11883

1 JUDGE MUMBA: Very well, Mr. Pantelic.

2 Any response from the Prosecution at all?

3 MR. DI FAZIO: There's just absolutely nothing in the ruling that

4 supports that submission. It's utterly without foundation, and it's for

5 the Prosecution to decide which witnesses it calls and which witnesses it

6 doesn't. Furthermore, if it's crucial for the defence of

7 Dr. Blagoje Simic to call those witnesses, let them call them.


9 Any other matters?

10 MR. DI FAZIO: Yes. Just some further evidence that the

11 Prosecution wishes to tender. Perhaps before I deal with the further

12 evidence, there's some translations that we can produce. Registry

13 informed me, and I believe may have informed my case manager as well,

14 that -- of some outstanding translations. We have them available and we

15 can produce them now.


17 MR. DI FAZIO: Can I produce, perhaps in two bundles. The first

18 bundle will be the translations for Exhibits P55, 56, 57, and 60, and we

19 can give them to you in a bundle.


21 MR. DI FAZIO: And perhaps while my case manager is sorting those

22 matters out, we'll also produce the final translations for P65, 66, and

23 113. That leaves outstanding P61, 62, and 63. They have been requested

24 and apparently will be available in early September, very early September,

25 the beginning of September, but apparently it's quite possible that they

Page 11884

1 will be available in the next few days. So in any event, they're in the

2 pipeline and will be coming through and shouldn't cause any problem.

3 JUDGE MUMBA: Very well.

4 MR. DI FAZIO: Please note -- I'd ask the Chamber to note P60.

5 That is a document that is under seal, apparently.

6 JUDGE MUMBA: Yes. Under -- the Defence were given copies of the

7 translation?

8 MR. DI FAZIO: I believe so. May I just inquire?

9 [Prosecution counsel confer]

10 MR. DI FAZIO: They haven't been given copies yet, but they will

11 be given copies shortly. They're here now.

12 That leaves one other document, which I haven't had a chance to

13 examine, and I haven't had a chance to look at the transcript relating to

14 it, but it's a document that my case manager has had a look at. It's

15 Exhibit P134. Apparently this was a document produced by Mr. Pantelic

16 during the testimony of Ewa Tabeau. I wonder if I might just be permitted

17 to have a very brief look at it. P134, I'm told. And I don't know -- I

18 can't explain why it has a "P" exhibit if it was produced by

19 Mr. Pantelic. Would you prefer me to to leave this issue and fully

20 investigate it and report to you in due course on that, or --

21 JUDGE MUMBA: No. Perhaps you can look at it. Because if it's

22 with the registry assistant, if it's available, you can look at it.

23 MR. PANTELIC: I do believe, Your Honour, that it's a Prosecution

24 document, because it's kind of -- after the break, Madame Tabeau came and

25 made a certain submission on that document, and she found it at

Page 11885

1 [indiscernible], I think, or OTP.

2 MR. DI FAZIO: My colleagues remind me that it was a document that

3 I believe Mr. Pantelic was referring to in cross-examining Dr. Tabeau, and

4 the Prosecution --

5 [Prosecution counsel confer]

6 MR. DI FAZIO: That's right. And the Prosecution sought its

7 admission because it had been used in the cross-examination of Dr. Tabeau.


9 MR. DI FAZIO: So it is our document, and I will seek to make

10 arrangements for the translation of that document, unless, of course, the

11 Chamber takes the view that, given the circumstances of its production,

12 given that it was Mr. Pantelic who had the document, who used the

13 document, and who put material from the document to the witness, that

14 therefore it should be an obligation on the part of Mr. Pantelic to have

15 it translated.

16 JUDGE MUMBA: No. I think it's a Prosecution document, because it

17 came from your witness. Yes.

18 MR. DI FAZIO: Very well. Thank you. We'll undertake that

19 translation as well, and that will be produced in due course.

20 May I proceed to my next topic?

21 JUDGE MUMBA: We haven't got the documents. Oh, they are being

22 rearranged.

23 Yes, Mr. Di Fazio.

24 THE REGISTRAR: Yes, Your Honours. I just need a few moments,

25 because everything was given in a pile, so I need to separate them all.

Page 11886

1 Thank you.

2 JUDGE MUMBA: All right. Yes.

3 MR. DI FAZIO: Thank you. May I proceed? If Your Honours

4 please, I also seek to produce into evidence five interviews conducted

5 with Mr. Tadic and Mr. Zaric. They are interviews that were conducted in

6 the presence of their legal representatives, in the case of Mr. Zaric's

7 interviews, in company with his lawyer Mr. Pisarevic, who is with us in

8 Court; and Mr. Tadic in the presence of a lawyer, Mr. Tomislav Visnjic.

9 I hope I've pronounced that correctly. In the case of Mr. Tadic, there

10 are two interviews, one dated the 26th of March, 1998, and another on the

11 following day, the 27th. In the case of Mr. Zaric, there are three

12 interviews: the 1st, 2nd of April, and 3rd of June. All the interviews

13 were conducted under caution, that is, with their rights having been read

14 to these defendants. I raised the topic of the admission of these

15 documents with Defence counsel, a matter of approximately two weeks ago,

16 and I was informed by them that they would not be objecting to the

17 admission of these documents, the transcripts, I mean. They have all been

18 disclosed, audiotapes were given to the Defence last year. I can't give

19 you the precise date, but it was last year.


21 MR. DI FAZIO: I'm sorry. Yes, in fact it goes earlier than

22 that. It was December 1998 that they were provided to the Defence.


24 MR. DI FAZIO: And they contain important material, and I seek

25 their production into evidence.

Page 11887

1 JUDGE MUMBA: May I have confirmation, Mr. Pisarevic, on behalf of

2 Mr. Simo Zaric?

3 MR. PISAREVIC: [Interpretation] Yes, Your Honour. It is correct

4 that Mr. Zaric did have these interviews conducted, and the Defence of

5 Mr. Zaric does not oppose having them admitted into evidence. Thank you.

6 JUDGE MUMBA: Mr. Lukic, on behalf of Mr. Tadic?

7 MR. LUKIC: [Interpretation] Your Honours, I do not object to

8 having this interview admitted into evidence.

9 JUDGE MUMBA: Very well.

10 MR. DI FAZIO: Thank you. May I provide, then, the English

11 transcripts of the interviews and ask that they be given Prosecution

12 exhibit numbers. Shall we deal with them one by one, if Your Honours

13 please?

14 JUDGE MUMBA: Yes. I think one by one so the numbering is not

15 confused.

16 MR. DI FAZIO: All right. Perhaps if we deal with the interviews

17 of Mr. Tadic first. The first is that of the 26th of March, 1998. 26th

18 of March, 1998.

19 JUDGE MUMBA: Before we start that, these documents whose

20 translations you've just given, they were already admitted into evidence

21 or they were -- the reason they were not admitted was pending translation

22 into English?

23 MR. DI FAZIO: No, no. They've never been produced before. These

24 were --

25 [Prosecution counsel confer]

Page 11888

1 JUDGE MUMBA: No. I'm talking about the documents, the other

2 batches of document, P --

3 MR. DI FAZIO: My apologies. I misunderstood, Your Honour. Yes,

4 they've all been admitted into --

5 [Prosecution counsel confer]

6 MR. DI FAZIO: I'm sorry. My apologies. They're all ID

7 documents, pending translation.

8 JUDGE MUMBA: Yes, Madam Registrar. Can we have confirmation.

9 THE REGISTRAR: Your Honours, not having compared each document

10 with the B/C/S version, I will just say that they're all admitted into

11 evidence. Thank you.

12 JUDGE MUMBA: And they will bear the same numbers. And those

13 under seal will remain under seal.

14 THE REGISTRAR: Your Honours, if I may, apart from all the

15 exhibits that translations of which were just tendered, P55, P56, P57,

16 P60, and the ones that we shall receive in September, when we resume, P61,

17 P62, P63, and P134, if I'm not mistaken --

18 MR. DI FAZIO: 65 --

19 THE REGISTRAR: 65, 66, and 113, we still is have outstanding

20 P67 ter ID.

21 Thank you.

22 MR. DI FAZIO: Very well. I'll attend to that document as well

23 and make sure that we've got the translation covered and have it available

24 in due course.

25 JUDGE MUMBA: All right. Thank you.

Page 11889

1 JUDGE MUMBA: And then the interviews.

2 MR. DI FAZIO: The interviews. I believe that two interviews have

3 now been handed up: The 26th of March and 27th of March, 1998. They are

4 two interviews conducted with Mr. Tadic. So I'd ask for separate exhibit

5 numbers for those two interviews in March of 1998.

6 JUDGE MUMBA: Yes. Can we have the number?

7 THE REGISTRAR: Yes, Your Honours. Interview dated 26th of March,

8 1998, shall be Exhibit P138, and interview of 27th of March, 1998, shall

9 be P139. Thank you.

10 MR. DI FAZIO: May I now introduce three further interviews

11 conducted with Mr. Zaric, two in April, that is, the 1st and 2nd of April,

12 and one in June, that is, the 3rd of June.


14 MR. DI FAZIO: I'd ask that they be given three -- the next

15 exhibit numbers.

16 JUDGE MUMBA: Yes. Can we have the numbers, please.

17 THE REGISTRAR: Yes, Your Honours. Following the sequence of the

18 dates of the respective interviews, they shall be Exhibits P140, P141, and

19 P142. Thank you.

20 MR. DI FAZIO: I have no further matters to raise, if Your Honours

21 please.

22 JUDGE MUMBA: Very well. Any matters from the Defence? No

23 translations? I see none.

24 We've come to the end of our proceedings. The next proceedings

25 will start on the 2nd of September, and we shall start our sessions in the

Page 11890

1 afternoon, at 1415 hours. The Trial Chamber would like to wish everybody

2 a safe and happy holiday until the next time we meet.

3 We shall adjourn until September, the 2nd.

4 --- Whereupon the hearing adjourned at 12.40 p.m.,

5 to be reconvened on Monday, the 2nd day of

6 September 2002, at 2.15 p.m.