Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11621

 1                           Tuesday, 21 June 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.20 p.m.

 5             JUDGE ORIE:  Good afternoon to everyone.  Madam Registrar, would

 6     you please call the case.

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

 8     IT-03-69-T, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             I would have two decisions for which the reasons that have to be

11     given.  I reserve them for a later moment, because we'd like to start

12     immediately with the first witness to be called by the -- by the Stanisic

13     Defence, and there are still a few pending matters in relation to

14     protective measures for which we would like to go into private session.

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 5                           [Open session]

 6             THE REGISTRAR:  We're in open session, Your Honours.

 7             JUDGE ORIE:  Thank you, Madam Registrar.

 8             Mr. Groome, you would like to raise -- yes, Ms. Marcus, you would

 9     like to raise some matters.

10             MS. MARCUS:  Thank you, Your Honours.  On the 1st of April, 2011

11     the Chamber ordered the Defence to fulfil their disclosure obligations

12     pursuant to Rule 67(A) "no later than the 7th of June, 2011."  To date

13     the Stanisic Defence have disclosed witness statements for only two of

14     their witnesses.  The Prosecution urgently seeks disclosure of the

15     statements of all other Defence witnesses pursuant to Rule 67(A)(ii) and

16     this Chamber's disclosure order.

17             On the 14th of June, the Prosecution requested in court at

18     transcript T-11517, all statements taken from Defence witnesses pursuant

19     to Rule 67(A)(ii).  Apart from those for the witnesses of this week, no

20     statements have been forthcoming.

21             On the 17th of June, the Prosecution sent an e-mail to the

22     Defence, again requesting provision of any and all statements the

23     Defence -- from Defence witnesses pursuant to Rule 67(A)(ii).  In

24     response, the Defence stated that it does not agree with the

25     Prosecution's interpretation of its disclosure obligations and that it

Page 11638

 1     deems all its notes taken from witnesses to be internal work product.

 2     The Defence requested that the Prosecution provide it with the

 3     jurisprudence upon which we rely in asserting that there is a disclosure

 4     obligation.  The Prosecution provided its response in detail that same

 5     day, on the 17th of June, including citations to the jurisprudence and no

 6     further response was received from the Defence.

 7             Rule 67(A)(ii) provides:

 8             "Within the time limit prescribed by the Trial Chamber but not

 9     less than one week prior to the commencement of the Defence case, the

10     Defence shall provide to the Prosecutor copies of statements, if any, of

11     all witnesses whom the Defence intends to call to testify at trial and

12     copies of all written statements taken in accordance with Rule 92 bis,

13     Rule 92 ter, or Rule 92 quater, which the Defence intends to present at

14     trial."

15             Rule 67 is quite clear that when Defence counsel has witness

16     statements from its witnesses it is required to disclose them.  I refer

17     the Chamber to the Prosecutor versus Milan and Sredoje Lukic.  That's

18     case IT-98-32, on the 19th of January, 2009, at transcript T-4180.

19             In the application of Rule 66(A)(ii) -- 67(A)(ii), pardon me, the

20     Appeals Chamber has held that the fact that a statement is not in

21     standard form "does not free a party from its obligation to disclose it."

22     For this assertion I refer the Chamber to Prosecutor versus Niyitegeka,

23     the appeals judgement of the 9th of July, 2004, paragraph 35.

24             Interview notes have been considered witness statements by both

25     Trial Chambers and the Appeals Chamber under Rule 66(A)(ii).  For this I

Page 11639

 1     refer the Chamber to the Lukic and Lukic case decision on Milan Lukic's

 2     motion to suppress testimony for failure of timely disclosure, dated 3

 3     November 2008, at paragraph 16.

 4             The Prosecution understands that because of time and resource

 5     constraints, the Defence may not have prepared formal witness statements

 6     for all of the Defence witnesses on its 65 ter list.  Nevertheless, from

 7     the level of detail included in the Defence's 65 ter summaries, it is

 8     clear that the Defence has interviewed many of these witnesses, in some

 9     cases quite extensively.  I note that on the 14th of June, 2011,

10     Mr. Jordash stated at transcript 11513 that they started interviewing the

11     first two witnesses three to four months ago.

12             The Prosecution therefore seeks disclosure of formal witness

13     statements of any witnesses for whom such have been prepared and of

14     interview notes for any witnesses that the Defence may have interviewed

15     but with respect to whom no formal statement was prepared.

16             The Prosecution acknowledges, of course, that the Defence is

17     entitled to redact or remove from these notes the mental impressions or

18     other legitimate work product of Defence team members.  In this

19     connection, the Prosecution notes that paragraphs 24 to 36 of the

20     Niyitegeka appeal judgement contain helpful guidance regarding what may

21     or may not be considered work product in the context of witness interview

22     notes.

23             Rule 67(A)(ii) clearly contemplates disclosure of Defence witness

24     statements where they are available.  To allow Defence counsel to resist

25     the disclosure of witness statements simply by failing to reduce

Page 11640

 1     interviews notes to a formal signed statement would be an absurd result

 2     emphasising form over substance.  Addressing such a situation

 3     Judge Parker observed in the Djordjevic case:

 4             "We have, or at least I have, with other Judges in the past

 5     encountered situations where a practice was adopted by the Defence of not

 6     taking a formal statement with a view to avoiding Rule 67.  We dealt with

 7     that by requiring that their proofing notes be provided in lieu of a

 8     formal statement."

 9             I refer the Chamber to Prosecutor v. Djordjevic, that is case

10     number IT-05-87, on the 20th of January of 2010, at transcript 10166.

11             This approach is eminently reasonable.  Rule 67(A)(ii) like Rule

12     66(A)(ii) is intended to promote the truth-finding process by allowing

13     witnesses to be confronted with their prior statements.  This goal is

14     promoted by disclosure of interview notes just as much as it is by the

15     disclosure of formal signed statements.  In contrast, no legitimate goal

16     or policy would be advanced by an interpretation of Rule 67(A)(ii) that

17     required disclosure of formal statements but permitted interview notes to

18     be withheld.  The reasonable interpretation of the Rule should be

19     preferred.

20             The Appeals Chamber has made it clear that interview notes

21     prepared by the Prosecution do not constitute work product within the

22     meaning of Rule 70(A).  The Prosecution notes that Rule 70(A) defines

23     work product for a party and does not make any distinction between

24     Prosecution work product and Defence work product.  In light of this,

25     interview notes prepared by the Defence should not be considered work

Page 11641

 1     product either.

 2             The second of the two witnesses for whom the Prosecution has

 3     received statements is likely to conclude his testimony next week.  The

 4     first witness for whom the Prosecution has not received a statement is

 5     likely to begin testimony next week.  To meaningfully prepare for

 6     cross-examination of that witness and subsequent witnesses, the

 7     Prosecution would need to receive witness statements immediately.

 8             For the foregoing reasons, the Prosecution respectfully requests

 9     the Chamber to order the Defence to immediately disclose all witness

10     statements, including all interview notes, proofing notes, and other

11     notes recording the evidence of Defence witnesses relevant to this case

12     for all the witnesses on the Defence's 65 ter witness list.

13             Your Honours, I have one more very brief additional matter to

14     raise.  The Prosecution has made two requests to inspect pursuant to Rule

15     67(A)(i) to the Stanisic Defence, one request on the 16th of June and the

16     second request on the 18th of June.  Both requests pertain to the first

17     two witnesses.  The Defence has not responded to these requests except to

18     suggest that the Chamber not be copied on these requests.  The

19     Prosecution notes that in spite of being in possession of witness

20     statements and prior testimony of Prosecution witnesses for months if not

21     years prior to the Prosecution witness testifying, the Prosecution always

22     prioritised Defence requests even when last minute pursuant to Rule 66(B)

23     even where requests came late at night on the eve of a witness's

24     testimony.  In this case the Prosecution submits that in particular, in

25     light of the very late disclosure of the witness statements for the first

Page 11642

 1     two witnesses that the Defence should treat our 67(A)(i) requests with

 2     the utmost in urgency.

 3             Thank you.

 4             JUDGE ORIE:  Mr. Jordash, it is not my intention to spend the

 5     whole of this day on discussions on these matters, but if you would like

 6     to briefly respond, if there would be need for a longer response, then we

 7     should find time somewhere.

 8             MR. JORDASH:  Well, Your Honour I'm not in a position to -- to

 9     make a lengthy argument, because the Prosecution didn't provide notice

10     that they were going to raise this argument today.  So I am somewhat

11     handicapped by that lack of notice.

12             JUDGE ORIE:  Let me then be very practical.  If we would proceed

13     with the witness today, could you respond then tomorrow and not forget

14     about Ms. Marcus's urgent request to prioritise any request under

15     67(A)(i), because that's the most urgent matter, I would say, and not to

16     say that the remainder is -- could be postponed for days, but perhaps we

17     could deal with that tomorrow.  Is that --

18             MR. JORDASH:  Well, I can -- I can deal with those two matters

19     immediately.  One, it's not correct that we didn't respond at all.  Two

20     requests came.  One was, as I understand the situation, a request as to

21     whether we'd received any documentary evidence concerning the 1991

22     commission or investigation into Mr. Stanisic that we allege -- or assert

23     was politically motivated.

24             JUDGE ORIE:  That's the 23rd of July or the 18th of July report,

25     1991, in which apparently the results were given to the government.  Is

Page 11643

 1     that --

 2             MR. JORDASH:  This -- this is the investigation that --

 3             JUDGE ORIE:  Yes.  I'm aware of what you're talking about.

 4             MR. JORDASH:  Right.

 5             JUDGE ORIE:  This resulted in a report which was sent and,

 6     forgive me, it was either the 18th or the 20th -- I think it was the 23rd

 7     of July, 1991 in which the results of the investigations of this

 8     commission were reported.

 9             MR. JORDASH:  Yes.  And I don't understand why my learned friend

10     has raised the issue in this way, because I responded immediately to that

11     request, and I informed the Prosecution that we had not received any

12     documentary evidence from the National Council.

13             JUDGE ORIE:  Have you asked for it in this respect?

14             MR. JORDASH:  We asked for it, yes.

15             JUDGE ORIE:  Okay.

16             MR. JORDASH:  And I informed the Prosecution of that, so I'm not

17     sure what that's about.

18             JUDGE ORIE:  Let's not -- it's clear now what the concerns of

19     Ms. Marcus are.  If we're talking about this 67(A)(ii) request, let's not

20     start struggling about whether you did respond or whether you -- let's

21     try and see -- apparently it's important for Ms. Marcus that to the

22     extent you're able to prioritise, and I do understand from your words

23     that in some respects you -- well, you may prioritise it, but it will

24     produce no difference in result, that perhaps the cup of tea in the next

25     break will help us a bit out, and then of course, then we have the more

Page 11644

 1     extensive disclosure discussion which I think we'd like to hear your

 2     response, but if you say, "I wasn't aware that it would be raised today,"

 3     then we might like to receive your response tomorrow.

 4             MR. JORDASH:  That would be absolutely fine.  Thank you.

 5             JUDGE ORIE:  And then meanwhile, we don't have to ask the witness

 6     to wait for another -- for another hour to hear the details of your

 7     discussions.

 8             MR. JORDASH:  In -- if I can just very briefly deal with the

 9     Prosecution's second 67(A) --

10             JUDGE ORIE:  Yes.

11             MR. JORDASH:  -- (i) request.  It was a request as I understood

12     it for any diary the witness may have, full stop, without any caveat that

13     that diary was relevant to his testimony.  But putting that aside, the

14     answer is he doesn't have a diary relevant to his testimony.  And I

15     apologise for the one-day delay.

16             JUDGE ORIE:  Yes.  What you say, diary is not in the Defence's

17     custody or control.

18             MR. JORDASH:  Absolutely not.

19             JUDGE ORIE:  Which is an answer, whether you like it or not,

20     Ms. Marcus.

21             MS. MARCUS:  Thank you, Your Honour.

22             JUDGE ORIE:  It is an answer.  Then we are close to the point

23     where we would have a break anyhow, perhaps it's better not to start

24     examination-in-chief for five minutes and then to have a break.  I

25     suggest that we take the break now and that we'll start at five minutes

Page 11645

 1     to 4.00, immediately move into closed session and start hearing the

 2     testimony of the witness.

 3                           --- Recess taken at 3.23 p.m.

 4                           --- On resuming at 3.57 p.m.

 5             JUDGE ORIE:  We will turn into closed session.

 6     [Closed session] [Confidentiality partially lifted by order of the Chamber]

 7             THE REGISTRAR:  We're in closed session, Your Honours.

 8             JUDGE ORIE:  Thank you, Madam Registrar.  Could the witness be

 9     brought into the courtroom.

10             Mr. Jordash, associated exhibits or documents, I always expect

11     them to be referred to in the 92 ter statement.  I had some difficulties

12     in finding clear references in the 92 ter statement to all of these

13     documents, but --

14             MR. JORDASH:  I would hope that they are there, but I accept that

15     they're not clearly --

16             JUDGE ORIE:  Identified, perhaps.

17             MR. JORDASH:  Identified.

18             JUDGE ORIE:  But we'll get used to -- we'll understand each

19     other's ways.

20                           [The witness takes the stand]

21             MR. GROOME:  Your Honour.

22             JUDGE ORIE:  Yes, Mr. Groome.

23             MR. GROOME:  I had precisely the same difficulty.  It was going

24     to be the basis of an objection.  If -- perhaps by tomorrow morning

25     Mr. Jordash could at least put another column and the paragraph number

Page 11646

 1     where it's referred to, I think it would assist all of us.  For example,

 2     there's one reference to Law on Arms but it's -- there are two different

 3     documents that have the Law on Arms in there.

 4             JUDGE ORIE:  I think it's the first witness.  Mr. Jordash

 5     certainly will accommodate our concerns in the near future, I take it.

 6             Witness DST-051, I explained to you before the break and before

 7     we had to deal with some procedural matters which were not related to

 8     you.  I explained to you that we would proceed at this moment in closed

 9     session.  We are in closed session.  At the same time, voice distortion

10     and face distortion is active, which means that after we've heard

11     relevant submissions that we can move in the appropriate direction.  At

12     this moment, no one can see you, no one can hear you, apart from those in

13     this courtroom.

14             Mr. Jordash, are you ready to start your examination of

15     Witness DST-051?

16             MR. JORDASH:  Your Honour, yes.  Thank you.

17                           Examination by Mr. Jordash:

18        Q.   Good afternoon, DST-51.  Could you please state your full name

19     for the record.

20             JUDGE ORIE:  Mr. Jordash, I think, as a matter of fact, that we

21     work with the pseudonym, as I said before, with face and voice

22     distortion, so therefore a pseudonym sheet would be better placed to keep

23     all options open for the future.

24             MR. JORDASH:  Certainly, Your Honour.

25             JUDGE ORIE:  It doesn't make much sense to call the witness

Page 11647

 1     DST-51 and then ask what his name is.  But I would not mind exceptionally

 2     that you prepare a pseudonym sheet and that we identify the witness by

 3     name on a piece of paper after the next break.  It may not be that

 4     difficult to produce and upload a pseudonym sheet.

 5             MR. JORDASH:  Your Honour, yes.  At the moment, then I'll deal

 6     with it by having the witness look at a statement where his name also is.

 7             JUDGE ORIE:  Yes.  That's also a way of dealing with it.

 8             MR. JORDASH:  Could I ask the Court Officer, please, to give

 9     DST-051 1D4850.  Well, rather, it should come up on the screen not to be

10     shown to the public.

11        Q.   Mr. Witness, on the monitor in front of you there should and

12     document purporting to be a statement given by you on the 13th of

13     January, the 10th of March, and the 27th of May, 2011.  Do you recall

14     giving a statement to members of the Stanisic Defence on these dates?

15        A.   Yes.  I remember, and the information contained in my statement

16     is fully accurate.

17        Q.   Let me if I can just take it one step at a time.  Do you --

18     perhaps the statement could be moved upwards so we can see the bottom.

19     Do you recognise one of the signatures or initials on the bottom of the

20     page?

21        A.   This is my signature, and the initials are those of the lawyer

22     who interviewed me.

23        Q.   And do you recall giving the statements on the days that I

24     referred to?

25        A.   Yes.  13 January, 10 March, and 27 May.

Page 11648

 1        Q.   Have you had an opportunity prior to attending court today to

 2     carefully review this statement?

 3        A.   Yes.

 4        Q.   And in your own language?

 5        A.   Yes, in the Serbian language.

 6        Q.   Is there anything that you would wish to change in the statement?

 7        A.   No.

 8             MR. JORDASH:  Your Honours, at this time I would ask the -- or I

 9     think Your Honours may have the courtesy copy of the list of exhibits

10     associated with this witness's statement.

11             JUDGE ORIE:  Yes.  Yes, we received that.

12             MR. JORDASH:  And we would seek to have the statement and the

13     exhibits, the associated exhibits, admitted pursuant to 92 ter.

14             MR. GROOME:  Your Honour, I believe there's just one more

15     foundational question that needs to be asked.

16             JUDGE ORIE:  Yes.  You're not -- you've not dealt with all the --

17     all the formalities, Mr. Jordash.

18             Witness DST-051, you read your statement.  It reflects what you

19     said and what you said is in accordance with the truth.

20             THE WITNESS:  [Interpretation] Yes.

21             JUDGE ORIE:  That completes the -- there was one missing element,

22     Mr. Jordash.

23             And if similar questions would be asked today, you would give the

24     same -- basically the same answers?

25             THE WITNESS:  [Interpretation] Yes.

Page 11649

 1             JUDGE ORIE:  Any objections, Mr. Groome?

 2             MR. GROOME:  Your Honour, I have no objections to the admission

 3     of the statement.  I do object to the admission of the associated

 4     exhibits until I have some understanding of where and how they're covered

 5     in the statement.  I would ask that they be marked for identification

 6     now, and I will speak with Mr. Jordash during the break to see if we're

 7     able to come to an agreement on that.

 8             JUDGE ORIE:  I think Mr. Jordash had not even yet asked to have

 9     them admitted.  But Mr. Jordash, would you agree with the suggestion of

10     Mr. Groome?

11             MR. JORDASH:  Your Honour, yes.

12             JUDGE ORIE:  Madam Registrar, the witness statement would receive

13     number?

14             THE REGISTRAR:  1D4850 would receive number D227.

15             JUDGE ORIE:  D227 is admitted into evidence under seal.

16     Madam Registrar, would you please prepare and reserve numbers for the

17     associated documents and so that we can mark them for identification

18     awaiting further submissions by the parties before admitting them.

19             Please proceed.

20             MR. JORDASH:  May I have the chart which we prepared which has

21     been given to the legal officer, please, to be given to the witness.

22     This is a chart of exhibits and comments by the witness.

23        Q.   Could I ask, Mr. Witness, that you look at the chart.  Do you

24     recognise the chart?

25        A.   Yes.

Page 11650

 1        Q.   And do you recognise the signature or initials at the bottom

 2     right-hand corner of each page?

 3        A.   Yes.  And the signature at the end.

 4        Q.   Were you asked --

 5             JUDGE ORIE:  Just -- I still have the statement on my screen.

 6     Have you identified the chart by its doc ID number, Mr. Jordash, so that

 7     Madam Registrar can put it on the screen.

 8             MR. JORDASH:  The chart hasn't been uploaded.

 9             JUDGE ORIE: [Overlapping speakers].

10             MR. JORDASH:  We have copies for Your Honours and the parties.  I

11     hope that you've been given them.

12             JUDGE ORIE:  Yes, if you want later us to do something with it,

13     then you're encouraged to upload the chart, because you're talking about

14     a signature, and I think I have to check whether I received them both in

15     English and in B/C/S.  I don't think I did, so therefore I -- for

16     example, I can't check whether the -- where that signature is, but let's

17     proceed.  It's -- no.  No.  I see that these ...

18             Apparently I have a different copy, but let's proceed.  I don't

19     think that this will finally in any way obstruct the further proceedings.

20             MR. JORDASH:  Your Honour, I --

21             JUDGE ORIE:  I see -- I can borrow from one of my colleagues.

22     Yes.

23             MR. JORDASH:

24        Q.   Were you asked yesterday to look at these documents and

25     provide --

Page 11651

 1        A.   Yes.

 2        Q.   And provide your comments, if any?

 3        A.   I had some remarks and comments in connection with each and every

 4     one of these documents.

 5        Q.   And do the documents -- do the comments accurately reflect what

 6     you wanted to say about the documents at that time?

 7        A.   Yes.

 8        Q.   And is there anything at this point that you want to change?

 9        A.   No.  I believe that this is what I wanted to say.

10        Q.   And do you confirm that it is the truth?

11        A.   Yes.

12             MR. JORDASH:  Your Honour, I would seek to have these exhibited

13     at this time.  I understand the Prosecution have some queries they would

14     like to have answered, so I would ask that it be MFI'd and the exhibits

15     underlying the chart be MFI'd.

16             JUDGE ORIE:  Mr. Groome.

17             MR. GROOME:  Your Honours, so it's clear, I don't object to the

18     admission of the witness's observations about these documents, but the

19     witness doesn't speak to anything about authenticity of the documents,

20     and in fact, in item 15, the witness says that he's not familiar with the

21     document.  So I've asked Mr. Jordash to provide some information about

22     the provenance of the document.

23             Could I also ask, Your Honour, that there's some abbreviations

24     here which have not been used before in the trial, CRDB is one, and I

25     believe there's -- in items 8, 9, and 11, the initials RS are used.  That

Page 11652

 1     has been used over the course of this case to indicate Republika Srpska.

 2     If that is not the case in this instance, I would ask Mr. Jordash to ask

 3     the witness what does he mean when he says "RS."

 4             JUDGE ORIE:  For some of the documents, especially when we're

 5     talking about laws which were published, it may be that the authenticity

 6     is not a vital issue, because of course there's one official version,

 7     but -- if the text is the same, but for the others, certainly,

 8     Mr. Jordash, is there anyway you could meet the concerns expressed by

 9     Mr. Groome as to the authenticity of these documents the witness has not

10     seen before?

11             MR. JORDASH:  Yes.  We can deal with that after the court

12     session.  We did write to the Prosecution with that query.

13             JUDGE ORIE:  Yes.  Mr. Groome, any objection against proceeding

14     at this moment and another cup of tea to be spent on your communications

15     with Mr. Jordash?

16             MR. GROOME:  No, Your Honour.

17             JUDGE ORIE:  Yes.  Then, Madam Registrar, would you please

18     prepare and reserve numbers both for the chart itself with the comments

19     on it in the two languages and for each underlying document to the extent

20     they have not yet been admitted into evidence where I see that --

21             MR. JORDASH:  May I indicate, Your Honour, that number 1, 8, 14,

22     and 17 in the chart have already been admitted.  That's 1D2613 --

23             JUDGE ORIE:  I even see far more of them.  A lot of P exhibit

24     numbers appear as well.  So I would come to -- close to 14, if I'm not

25     mistaken.  Fourteen, 15.  It looks even 16 out of 35, that's -- but I may

Page 11653

 1     have made a mistake.

 2                           [Trial Chamber and registrar confer]

 3             JUDGE ORIE:  The instruction from Madam Registrar to assign

 4     numbers to the underlying documents, of course, would only be applicable

 5     for those who have not yet been -- who have not yet received numbers.

 6     Madam Registrar will provide a list in which the numbers are given

 7     together with the previous -- previous series of documents.

 8             Please proceed Mr. --

 9             MR. JORDASH:  Thank you.

10             JUDGE ORIE:  I could -- I think I could -- no.  We also wait to

11     admit the chart until you have sat together with Mr. Groome.  So all

12     those documents, including the chart, would be marked for identification

13     to start with.

14             Please proceed.

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

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Page 11654











11 Page 11654 redacted. Closed session.
















Page 11655

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23   (redacted)

24             MR. JORDASH:  Could I have 1D01276, please.

25        Q.   When you mentioned, as that document is coming up, Mr. Witness,

Page 11656

 1     when you mentioned the border police, which section of the ministry of

 2     the interior or other organisation are they from?

 3        A.   Within the Ministry of the Interior of the Republic of Serbia,

 4     there is an administration for border affairs and aliens.  That's its

 5     name.  Its organisational unit outside the ministry are parts of the

 6     secretariat, and its remote units are at border crossings.

 7        Q.   And who does it answer to, the Administration for Boarder Affairs

 8     and Aliens?

 9        A.   All these organisational units report to the Administration for

10     Boarder Affairs and Aliens, and that administration, which is part of the

11     Ministry of the Interior of the Republic of Serbia, is responsible to the

12     director of the police and the minister of the interior.

13        Q.   Is the chief of state security in that chain of command?

14        A.   No.

15        Q.   Now, if you would look at the document in front of you on the

16     screen: "Rules Governing Activities of the State Security Service."  Are

17     you familiar with these rules?

18        A.   Yes, I can see them.  Yes, I am.

19        Q.   And what role, just briefly, did they play in the operation of

20     the State Security Service at the time they were published and

21     thereafter?

22        A.   These rules governing the activities of the State Security

23     Service were published, I think it was in 1984.  They were promulgated by

24     the federal minister of the interior at the time, and they are in force

25     for all members of the State Security Service of the then SFRY.  These

Page 11657

 1     rules were applied in the entire territory of the former SFRY.  All

 2     active members of the State Security Services were acquainted with these

 3     rules.  These are the basic rules that every freshman in the service must

 4     learn in order to be able to conduct himself in compliance with the rules

 5     and go about his or her duties in that manner.

 6        Q.   Looking at the bottom of the page, of the English page, and I

 7     think that's the same as the B/C/S page:

 8             "Within the meaning of these Rules, the operative means and

 9     methods of the State Security Service are secret co-operation with

10     SFRY --"

11             Going over the page, please.

12              " -- citizens or foreign nationals, informative interviews,

13     secret surveillance ..." and so on.

14             Could you in one or two sentences define an informative

15     interview, please.

16        A.   Let me find it.

17        Q.   Sorry, it should be on --

18        A.   I saw it.  In the carrying out of activities, operative methods

19     and means are used.  Secret co-operation with SFRY citizens or

20     foreigners, and in some cases informative interviews are made with

21     domestic citizens and sometimes with foreigners.  This is a basic

22     technique for -- for members of the service whether they work in

23     counter-intelligence or in the combatting of extremism and terrorism, get

24     information relevant to their lines of work.  Without this basic method

25     of collecting information, no service of this kind can function.

Page 11658

 1        Q.   And who potentially would be the subject of informative

 2     interviews?

 3        A.   Any citizen for whom a member of the service has reason to

 4     suspect that he or she has knowledge or information about activities

 5     aimed at the undermining of the constitutional order of the state.

 6        Q.   Further down the page in the English version and page 2 of the

 7     B/C/S, point 4.

 8             "Within the meanings" -- sorry -- "Within the meaning of these

 9     Rules, forms of complex operative work are check on personal data,

10     preliminary processing, operative processing, operative action ..." and

11     so on.

12             Could you just briefly define these terms?  Firstly, are these

13     terms in order of seriousness or in any other type of order?  Check on

14     personal data, is that at the beginning for a particular reason?

15        A.   This sequence of the forms of complex operative work is as stated

16     here, because the first thing -- stated as here, because the first thing

17     you do is check on a person.  You check the personal information of the

18     person to interview, especially with regard to information significant

19     for the security of the state.  Check his or her police files or possibly

20     misdemeanour files for persons to be interviewed or persons to be subject

21     to any of these complex operative methods, the basic form being

22     preliminary processing.  This is the lowest level of processing to which

23     a person is subjected.  May I continue?

24        Q.   What is preliminary processing?

25        A.   If I may continue.  Preliminary processing is the lowest level of

Page 11659

 1     complex operative work, meaning that the service or its member has some

 2     preliminary information that the person engages in activity that is

 3     subject to processing by the State Security Service.  There is no full

 4     information, though, but there are indicia, preliminary information.

 5     This form of operative work is done within half a year.  Possibly if some

 6     of this information that's collected within half a year is such that

 7     another half year is required, if --

 8        Q.   Sorry to stop you.  How might this information be recorded?  Is

 9     there a particular form or format?

10        A.   There is a form.  The organisational unit that comes by the

11     information that this person should be subject to processing drafts a

12     proposal to the head of the operative department and the State Security

13     Service of Serbia, be it the first or the Second Administration.  If you

14     talk about the period from 1992 on, this could also only be the first or

15     the Second Administration.  So a note is made stating that this person

16     deserves to be subjected to processing.  Then a proposal is made to

17     file --

18             THE INTERPRETER:  Could the witness please repeat this.

19             MR. JORDASH:

20        Q.   Sorry.  Sorry, Mr. DST-051.  Could you just repeat the last

21     sentence, please, or repeat the last two.  The translator missed it.

22     Remember, the translator's trying to keep up with you.

23        A.   I apologise.  After the proposal comes to the administration of

24     state security from the organisational unit from which it originated,

25     that is the first or the third, and if the management of these two

Page 11660

 1     operative administrations assesses that this person should be subjected

 2     to processing by state security, a proposal is made in accordance with

 3     these rules.

 4             This proposal is forwarded for approval, and the chief of the

 5     State Security Service or his deputy makes a decision on initiating

 6     preliminary operative processing.

 7        Q.   And just trying to move fairly briefly, Mr. DST-51, operative

 8     processing is what?

 9        A.   It's a higher level.  It's the highest level of processing a

10     person, and in this case it means that the service has information that

11     the person in question engages in some activity.  Extremist or --

12     extremist activity or has information that the person works for some

13     foreign intelligence service.  The same -- the procedure is the same with

14     regard to drafting a proposal and getting approval from the head of the

15     service as in the previous case.

16        Q.   And an operative action?

17        A.   An operative action is something that follows from the activities

18     of a greater number of persons or institutions; that is, it applies not

19     only to one person but a larger number of persons or institutions

20     involved in some activity that is subject to processing by the State

21     Security Service.  There are examples from practice.

22        Q.   Let me take you now down the page to point 6, and it's

23     entitled: "Means and Methods of the State Security Service, Operative

24     Means and Methods."

25        A.   Yes.

Page 11661

 1        Q.   And it says:

 2             "The person with whom the service has established the secret

 3     co-operation, (hereinafter co-operation), are associates and operative

 4     connections, a network of associates."

 5             Could you please just define an "associate," please.  Perhaps we

 6     can go over the page before you answer that and have a look at the

 7     definition given there, and perhaps if you could explain it a little.

 8     Page 2 of the B/C/S, and page 2 -- page 3 of the English.

 9        A.   Yes, yes.  Here in item 9 there is a precise definition of an

10     associate.  I wouldn't change anything here.  It is a person who is

11     conscious, secret -- in a conscious, secret, organised, and continued

12     manner collects data and information for the needs of the service.  This

13     is a definition of an associate, that is any person who accepts to

14     co-operate with the State Security Service.  It means it must be

15     conscious and secret, and it is -- were laid down clearly how such an

16     associate is treated.

17        Q.   And an operative connection?  How would you define that?

18        A.   This same rule applies to an operative connection.  That, in a

19     way, is a lower level of co-operation.  For somebody to become an

20     associate, in practice it would happen often that the person previously

21     was an operative connection.  An associate is a higher level of

22     co-operation, a more reliable person; whereas, an operative connection is

23     an initial stage from which a serious relationship with the service can

24     develop when someone becomes an associate.

25        Q.   Is there a difference between an associate and a source or an

Page 11662

 1     operative connection and a source?

 2        A.   The rules state precisely what an associate is and what an

 3     operative connection is and I have also explained.  Reports are written

 4     about interviews with associates and operative connections.  The source

 5     can be either an associate or an operative connection.  That is under

 6     item 1 of the report.  Or the source can be a person with the full name

 7     or a person who is not an associate and wants only his or her initials to

 8     be mentioned without other personal information.  A source can be either

 9     an associate or an operative connection but also a person who is

10     interviewed.

11        Q.   And finally, just dealing with definitions for the moment, an

12     operative worker, what's an operative worker in DB terms?

13        A.   An operative worker or an operative is a member of the State

14     Security Service.  In other words, an inspector or an authorised official

15     of the State Security Service in possession of an official ID and who is

16     permanently employed by the State Security Service.

17        Q.   And the role of an operative worker?

18        A.   The role of an operative is to act within the prescribed

19     framework or scope of activities of his organisational unit.  In other

20     words, he's to implement the tasks and plans of the service.

21     Specifically, an operative who works on counter-intelligence receives a

22     task such as opposing or countering the activity of another service, and

23     in that situation he is to fulfil all the tasks within that particular

24     aspect of his service.  He does research, collects information, engages

25     associates, and in such cases where -- where I was involved in combatting

Page 11663

 1     internal extremism and terrorism, we were also in charge of collecting

 2     criminal files and documents when such activities occurred.

 3        Q.   Engages associates.  And in what way are associates engaged by an

 4     operative worker?

 5        A.   As I have described, an operative worker deals with specific

 6     issues he was tasked with.  He follows or monitors the activities of

 7     those persons who are involved in activities related to the undermining

 8     of the republic.  He can conduct interviews and carry out checks in

 9     certain institutions or places where this enemy activity occurs.  He or

10     she can also check personnel, take part in the conducting of interviews,

11     and based on his assessment and the assessment of his superiors, he can

12     recruit people who can provide information about certain types of enemy

13     activity.  In this sense, he can recruit an associate or an operative

14     connection.

15        Q.   And is there any limit on who he can recruit, the type of person

16     he can recruit?

17        A.   The rules state that an inspector or an operative can recruit a

18     citizen of that state, and in one segment of the rules there is also some

19     mention of a possibility of recruitment of a foreign national.  In cases

20     when a citizen is being recruited, the procedure to follow is simpler.

21     He can recruit any citizen of Serbia provided that citizen can provide

22     information by which the service can oppose any such enemy activities.

23             In cases of foreign nationals, the procedure was somewhat

24     different.  The rules specify that a decision on such recruitment must be

25     made by the chief of the federal State Security Service.  The procedure

Page 11664

 1     to follow was different, and it was abided by the service.

 2        Q.   Returning to the issue of recruiting a citizen of Serbia.  If the

 3     citizen has a criminal record, can he or she be recruited?  If not a

 4     criminal record, then a known criminal past.

 5        A.   In the statement I provided, I explained the changes which took

 6     place in 1990, 1991, and 1992, regarding the activities the State

 7     Security Service was involved in up to that time.  The Third

 8     Administration dealt with the activities of the so-called internal enemy.

 9     That internal enemy was then categorised in several different groups.  In

10     order to clarify the process of recruitment of associates, I have to

11     compare the two situations.

12             There were two groups of internal enemies, such as

13     Anarcho-Liberals, Liberals, Serb nationalists, and other types of

14     nationalists.  Following the constitutional changes and the changes which

15     took place in 1991 and 1992, and following the period when tensions rose

16     in terms of the conflict in Bosnia and Croatia, also following the

17     appearance of different paramilitary groups, the service focused its

18     attention within the third line of work on internal extremists and

19     terrorists and the name was changed accordingly.

20             In other words, we were conditioned by those historical events.

21     We no longer dealt with, say, educated persons who had previously fallen

22     in the category of internal enemy.  Now we had to focus on the activities

23     of different paramilitary formations, extremists, criminals smuggling

24     weapons, and many other groups which undermined the constitutional order.

25             In the preceding period, it was not practice to recruit criminals

Page 11665

 1     or extremists.  Our associates at that time were of a higher level, so to

 2     speak.  If we, for example, surveilled Seselj or Dobrica Cosic or

 3     Vuk Draskovic, we required different types of associates.  It was

 4     dictated by the type of people who were internal enemy at the time.

 5             Following early 1990s, the service was forced to look for

 6     associates in the circles of extremists and people who, on occasion, were

 7     people with a criminal file.  In that sense that, relationship changed

 8     greatly despite the requirement of the -- those in charge of the service

 9     that we should pay maximum attention to who we were to recruit.  We were

10     still supposed to steer clear of criminals, people with criminal files,

11     and people who were prepared to carry out acts of terrorism.  However,

12     conditionally speaking, we were forced to look for individuals in such

13     circles who could be of any use, and we did so.

14   (redacted)

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16   (redacted)

17   (redacted)

18   (redacted)

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Page 11666











11 Pages 11666-11671 redacted. Closed session.
















Page 11672

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4             JUDGE ORIE:  Mr. Jordash, I am looking at the clock.  Could you

 5     find an appropriate moment.  We are now here for 80 minutes.

 6             MR. JORDASH:  This is a good moment, Your Honour.

 7             JUDGE ORIE:  This is a good moment.  Then could I ask -- before

 8     we adjourn, could I ask a question to Ms. Marcus.

 9             We now went through all the -- the first seven administrations,

10     and then we see now that an Eighth Administration is added in the later

11     years.  Is there any dispute about what the tasks of these first seven

12     administrations was, that the one was dealing with the internal enemies

13     and the other one was -- is -- are these matters in dispute?

14             MS. MARCUS:  No, they're not, Your Honour.

15             JUDGE ORIE:  Mr. Jordash, why are we listening to matters which

16     apparently are not in dispute rather than to focus on what keeps the

17     parties apart, what --

18             MR. JORDASH:  Well, we'd not been told that it wasn't in dispute.

19             JUDGE ORIE:  Well, Mr. Jordash, no.  The way to find out whether

20     something is in dispute is to ask questions and to provide information

21     and to search for whether a matter is in dispute, yes or no.  You start

22     with an organigramme, which is a P exhibit, and then you ask the witness,

23     "Is this correct?"

24             I take it that if the Prosecution seeks admission into evidence

25     of such a document, that they consider it to reflect correctly the

Page 11673

 1     situation.

 2             Now, you come up with further details.  Of course, it could be

 3     that -- that one to seven -- I mean, the Eighth Administration clearly

 4     appears as something new, so I can imagine that you pay some attention to

 5     it, especially if that further information adds something to what we find

 6     already in the statement, but we really have listened quite a bit to

 7     where the Prosecution accepts that at a certain point in time there were

 8     seven administrations and that we know from this statement of the witness

 9     that some had specific tasks, that -- I would ask the Prosecution, "Is

10     there any dispute about this?"

11             I don't know how important it is for you.  I don't know how

12     important it is for the Prosecution, but let's not -- whenever there's

13     not an established situation of non-dispute, if we would deal with

14     everything where you have not positively established that there's no

15     dispute but you have not explored it, then we are here until 2017.

16             MR. JORDASH:  But I quite agree, and I would invited the

17     Prosecution to indicate if such issues arise.  I mean, the Prosecution

18     could have said, "You can lead on that," and I would be happy to lead on

19     it.

20             JUDGE ORIE:  Yes.  Now, I must say that from the statement of the

21     witness I could not understand that you wanted to go through the specific

22     tasks of the -- you have a bit of attention paid to the First

23     Administration, to the Third Administration, who was in charge of the

24     Second Administration, but it didn't seem to be a matter which you would

25     go into such detail as you did now, so -- but more tea is there to be

Page 11674

 1     drunk together.

 2             We --

 3             MR. GROOME:  Your Honour.

 4             JUDGE ORIE:  Yes, Mr. Groome.

 5             MR. GROOME:  Can I just say briefly the Prosecution's position.

 6     Clearly any document that the Prosecution put forward with respect to the

 7     structure of the organisation is a document that we believe to be true.

 8     When Mr. Jordash was questioning about the document, we were assuming

 9     that there was something -- a contrary interpretation of the document

10     that he was advancing for the Tribunal, but just so that it's on the

11     record, we accept anything that we put into evidence.

12             JUDGE ORIE:  These documents were tendered from the bar table,

13     which means that - at least that's how I understand it to be - that the

14     Prosecution expects us to rely on this as reliable information.

15     Otherwise, they would have introduced it through a witness or would have

16     sought comments from witnesses on these documents, but let's really try

17     to use our time as efficiently as possible, because my next question is

18     you have now used approximately half of the time scheduled.  You said two

19     and a half hours in chief.  We started at five minutes to 4.00.  Let's

20     just say that the first couple of minutes a bit more time was taken with

21     tiny little matters in dispute.  Then we had 75 minutes.  I expect you to

22     be halfway.  Is that correctly understood?

23             MR. JORDASH:  It's very much understood, yes.

24             JUDGE ORIE:  Yes.  And then perhaps questions like what

25     counter-intelligence is, of course, I mean, even if I wouldn't know, I

Page 11675

 1     would look in the dictionary and I would find exactly the same answer as

 2     the witness gave, but I wouldn't need a dictionary, as a matter of fact.

 3     So therefore, let's focus on really what is in dispute and rely on

 4     documentation if need be.  An informative interview, I would expect to be

 5     an interview on which you seek information and that appears to be the

 6     case.  Even it's more or less defined in that way in the document we have

 7     now seen.

 8             We resume at quarter to 6.00.

 9                           --- Recess taken at 5.21 p.m.

10                           --- On resuming at 5.48 p.m.

11             JUDGE ORIE:  Mr. Jordash, please proceed.

12             MR. JORDASH:  Thank you, Your Honours.

13   (redacted)

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Page 11702

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 9                           [Open session]

10             THE REGISTRAR:  We're in open session, Your Honours.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             We will adjourn for the day, and we'll resume tomorrow morning,

13     the 22nd of June, in this same Courtroom II at 9.00, but we'll certainly

14     move into closed session almost immediately after we've resumed.

15             Mr. Jordash, I took 11 minutes of your time.  In return you get

16     15 tomorrow.

17             And is the assessment by the Simatovic Defence that you'd need

18     one hour still valid?

19             MR. BAKRAC: [Interpretation] Yes, Your Honour.  We will strive to

20     be even shorter.

21             JUDGE ORIE:  Yes.  Then we expect that the Prosecution can start

22     its cross-examination either before or at its latest after the first

23     break.

24             We stand adjourned.

25                           --- Whereupon the hearing adjourned at 7.05 p.m.,

Page 11703

 1                           to be reconvened on Wednesday, the 22nd day

 2                           of June, 2011, at 9.00 a.m.