Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5794

1 Tuesday, 9 December 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.18 p.m.

5 JUDGE LIU: Call the case, please, Mr. Court Deputy.

6 THE REGISTRAR: Good afternoon, Your Honours. This is Case Number

7 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

8 JUDGE LIU: Thank you very much.

9 I understand that there's some matters that the parties would like

10 to bring to the attention of this Bench. Yes, Mr. Karnavas.

11 MR. KARNAVAS: Thank you, Your Honour. Yesterday I posed a

12 question to the witness early on, and I drew an objection. And the

13 question was with respect to the proofing and I'll quote. It's from page

14 79, line 17. I asked: "Did he" - meaning the Prosecution - "did he show

15 you any reports by their own military analyst, for instance, that would

16 show that there's no evidence that anybody was in the Kravica school on

17 the day that you have indicated that you went and visited?"

18 The objection was that this -- "that is a misstatement of the

19 evidence. I don't know what he's referring to."

20 So my question today is, based on our research, Your Honours, and

21 we have spent over 10 hours on this issue recently. We have found

22 absolutely no evidence that anybody was in the Kravica school. And we do

23 have from Mr. Ruez, Mr. Ruez's testimony, on page 501 of the transcript,

24 we have him testifying to the effect that there was one individual and an

25 exhibit was shown to him, it's 14.4. It's on line 20 where he indicates

Page 5795

1 that one survivor was in a bus or in a convoy at the entrance of Kravica

2 town. And again, that's page 502, line 22 to 24. And we also have the

3 statement of that particular survivor and his pseudonym, just for the

4 record, I believe he's under 92 bis, but that's P-112.

5 So my question today is, because I'm doing a little demining

6 myself to make sure the terrain is clear of any land mines: Is there any

7 evidence, is there any evidence, that there was anybody, any prisoners,

8 held in the Kravica school? Because we don't have that. So if the

9 Prosecution does have that, I would like to have that. If they do not

10 have that, then I would like to know, and I think this is an answer that I

11 believe the Trial Chamber should be -- should welcome, whether it is an

12 obligation on the part of the Prosecution to bring that evidence forward

13 to the Court, and that is that their own witness is stating facts which

14 there are no evidence -- there's no evidence to their knowledge to support

15 those facts. Because I do believe, and it's my personal opinion, that

16 there is an obligation on the Prosecution to bring it out, at a minimum.

17 And there certainly is an obligation, not -- if they do intend to pose

18 questions, to elicit that information to make sure that they inform the

19 Trial Chamber that they have no evidence in their possession that would

20 support that witness's testimony with respect to that portion of the

21 witness's account.

22 So that's what I want to note today before I go forward, because I

23 will like to pose a question to the gentleman at the end -- at some point:

24 How is it that he claims to have gone to a school where he saw individuals

25 there, including a friend of his, and there's no evidence to support that?

Page 5796

1 So I think it is very relevant to the Defence, and I also think it's

2 relevant to know what the position of the Prosecution is and whether they

3 feel they have an ethical or a legal or a moral obligation to bring these

4 matters to the attention of the Court when they do have a witness and

5 they're posing these sorts of questions. And I think we encountered this

6 situation once before with Mr. Butler with respect to Nikolic's testimony

7 with respect to the alleged VRS units in Potocari on the morning of the

8 12th. So that's my concern at this point, Your Honour.

9 JUDGE LIU: Well, Mr. Karnavas, frankly speaking, I have

10 difficulty to understand your question. Are you presenting some factual

11 evidence to this Tribunal or are you making a kind of allegation against

12 the Prosecution? I think if it's the first case, I believe the best way

13 is for you and the Prosecution to discuss it out of court. And after the

14 cross-examination, we believe the Trial Chamber will arrive at their

15 conclusions on this particular issue. But if you are attacking the

16 honestness of the Prosecution on the way they conduct their business, I

17 believe that you have to lay some foundations for that.

18 MR. KARNAVAS: Your Honour, when I posed the question, the

19 Prosecutor indicated that I was misstating the evidence. What I'm saying

20 as an officer of the court, which in my jurisdiction is the same as saying

21 it under oath, I have no evidence that would support -- I have no

22 disclosure material from the Prosecution that I am aware of after

23 searching that would support their own witness's testimony that there were

24 individuals stored in the Kravica school.

25 Now, if there is evidence, I would like to know where it is,

Page 5797

1 because we certainly don't have it. Now, maybe the Prosecution can inform

2 us here on the record whether they have that information. If they don't

3 have it, I think it's relevant for us to know at this point as well,

4 because I do think it's exculpatory information. It goes directly to the

5 credibility and to the heart of this witness's testimony.

6 JUDGE LIU: Give us a time frame. On which date?

7 MR. KARNAVAS: This is the 13th. This is -- the gentleman

8 indicated, Your Honour, yesterday and he said this in his statement to --

9 back in 2001 that he went to -- first he went to the Vuk Karadzic school,

10 then he went to a hangar, then he went to a second school, and then after

11 that he went to Kravica inside the town in a school on that afternoon. He

12 was asked questions about the Kravica warehouse, which we all know there

13 is more than credible evidence to establish those events, that people were

14 stored there and that an incident occurred over there. He indicated that

15 he was not aware on that particular day of anybody being in the Kravica

16 warehouse, both at -- during his statement and here on testimony.

17 But my question is: This is something brand new. We have no

18 evidence to suggest -- that would show that anybody was in a Kravica

19 school in Kravica on that particular day when this gentleman claims to

20 have been there, which would have been the afternoon or the evening or

21 late afternoon of the 13th. Now, maybe there is evidence, but I'm unaware

22 of it. And perhaps the Prosecution can clear up this matter, because he

23 indicated that I am misstating the evidence.

24 JUDGE LIU: Well, at the same time you have to remember that this

25 witness is not very clear about the particular date. Maybe there's some

Page 5798

1 misunderstandings there.

2 MR. KARNAVAS: Your Honour, I anticipated that question. This is

3 a tangible building. It's not about whether a conversation occurred.

4 This is a building in a town. It's immovable. It's there. So one would

5 know whether -- and he indicated that he was familiar with the town

6 because his father was from there. He's very clear as to the date, which

7 is the 13th, because then he claims that he came back on that day and so

8 on and so forth. But irrespective of the date, even beyond the 13th,

9 Your Honour, we have no evidence that anybody was stored or was kept in

10 the Kravica school. We have nothing. So it's not a matter of the date.

11 But -- because we're talking about a fixed immovable object, which is the

12 school itself, and he's familiar with the town so he knows he's in

13 Kravica. That's why I would like to know, because if the gentleman -- if

14 there is no evidence of that kind, then clearly we have a problem with

15 this particular witness, because either he's fabricating, confabulating,

16 imagining, I don't know. But I certainly think that it goes directly to

17 the gentleman's credibility.

18 JUDGE LIU: Well, could I hear from the Prosecution.

19 MR. McCLOSKEY: I'd really -- I'm at a loss for words, whether

20 that was some sort of an attack on the Prosecution or just nonsense. I

21 think it's his excuse to give a chance to argue the credibility midtrial.

22 I'm sorry, Your Honour, it's just -- it's getting -- it's weighing down,

23 and I will let it go and try to respond.

24 I'm always willing to talk to Mr. Karnavas about our case and

25 about how I see evidence, and that's -- if I had been asked about this

Page 5799

1 question, I would of course have told him. The objection was based on

2 Mr. Karnavas's suggestion that Mr. Butler had concluded that there was no

3 one at the Kravica school. And my memory is that Mr. Butler made no such

4 conclusion. That's the way the questions seemed to be going.

5 Now, regarding this person's evidence, he, back on 29 November,

6 2001, provided a taped statement where he said that he saw people at the

7 Kravica school and described much of what he had described in Court. So

8 this is not new. This is not something that came up at proofing. Also,

9 Witness 112, one of the dam survivors, you may recall, was kept in a

10 vehicle outside the supermarket in Kravica, which is I believe very near

11 this school. So we do have some evidence that people were kept alive in

12 Kravica the night of the 13th nearby where this school is. And so when we

13 learned in November of 2001 of this other school, that is the --

14 fundamentally the evidence. It was -- by 2001, it was too late to

15 reliably look for any potential forensic evidence of anybody staying in a

16 school. So that's the situation with the evidence.

17 I'm confounded by this -- the allegation that I'm failing in my

18 duty to tell him about evidence that does or does not support certain

19 testimony. We are providing the Court with the evidence that supports our

20 case. We're doing our best to provide exculpatory evidence. The evidence

21 regarding the people at the Kravica warehouse, as the Court said, is for

22 the Court's judgement to determine in the weight of all the evidence

23 whether or not there was anyone there. And I'm always willing to talk to

24 Mr. Karnavas about the evidence and where to look for evidence or lack of

25 evidence. But off the top of my head, the Kravica school evidence is

Page 5800

1 pretty much as I've stated, for whatever help that might be to this

2 situation. But I certainly don't see any problems on the Prosecution's

3 part here.

4 This witness, as well as many other witnesses, provides details,

5 some of which we can support, some of which we can't support. I think the

6 record will bear that and you will be the Judges of that. So I don't

7 really understand -- maybe it's not an allegation. Maybe I'm being too

8 sensitive, but I don't understand.

9 JUDGE LIU: Thank you.

10 I think this issue touches upon the evidentiary matters, and I

11 hope the parties could do some research again tonight and tomorrow morning

12 and could find the opportunity to meet with each other to discuss this

13 piece of the evidence. Of course, later on it is the job for the Judges

14 to decide whether those evidence is acceptable or not, or how much weight

15 we have to put on those evidence.

16 As for the credibility of this witness, I think it is also the job

17 for the Judges to evaluate that point. And I hope Mr. Karnavas would

18 concentrate your cross-examination on your point, because I believe that

19 this witness is a very sensitive one. He might not be used to the

20 proceedings before this Tribunal. He might find it very uncomfortable

21 being asked about his credibility, which he might think of is related to

22 his reputation. And we may conduct the cross-examination in private

23 session if the witness requires.

24 Are there any other matters that the parties would like to bring

25 to the attention of this Bench?

Page 5801

1 Yes, Mr. Stojanovic.

2 MR. STOJANOVIC: [Interpretation] Good afternoon, Your Honours. I

3 just wish to seek your assistance on a particular matter. This Defence

4 got the approval of the Trial Chamber to submit by Friday a response to

5 the Prosecution motion in relation to our request not to have intercepts

6 included in the material for this trial. Yesterday I got a message from

7 Ms. Cynthia Sinatra that today and tomorrow she has to be treated in

8 hospital in Houston and she will be in The Hague only on Sunday. Since we

9 have to draft the final text of our motion together, I kindly ask the

10 Trial Chamber for their understanding. Could you please extend our

11 deadline by Monday. Monday is our first working day next week, and by

12 then we would be in a position to submit our response. Thank you.

13 JUDGE LIU: Well, Mr. Stojanovic, as I said before that we have to

14 deal with those evidence before the winter recess so that we could know

15 where we stand. And it will save a lot of time and resources for the

16 other party to call some witnesses after we are resuming the proceedings.

17 In our view, the reply is different with any objections, because you do

18 not have to go over again all your objections to the admission of that

19 evidence, but to the particular point raised in the Prosecution's

20 submissions. But since on your part you have particular difficulties,

21 this Bench will grant your request. And you have to submit your reply

22 next Monday by 11.00. Thank you very much.

23 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

24 JUDGE LIU: So could we have the witness, please.

25 [The witness entered court]

Page 5802

1 JUDGE LIU: Good afternoon, Witness.

2 THE WITNESS: [Interpretation] Good afternoon.

3 JUDGE LIU: I understand that you are going to address to us. Is

4 that true?

5 THE WITNESS: [Interpretation] Yes, sir.

6 JUDGE LIU: Well, do you think we should go into private session?

7 In private session, it means nobody can hear what you are going to tell

8 us.

9 THE WITNESS: [Interpretation] I think that that would be a good

10 idea, Your Honour.

11 JUDGE LIU: Yes. We'll go to the private session, please.

12 [Private session]

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13 --- Whereupon the hearing adjourned

14 at 7.03 p.m., to be reconvened on Wednesday,

15 the 10th day of December, 2003, at 4.00 p.m.

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