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  1. 1 Tuesday, 19th January, 1999

    2 (Open session)

    3 --- Upon commencing at 10.10 a.m.

    4 JUDGE JORDA: Please be seated. Have the

    5 accused brought in, please.

    6 (The accused entered court)

    7 JUDGE JORDA: Good morning to the

    8 interpreters, good morning to counsel, both Defence and

    9 Prosecution, to the accused. We can now resume our

    10 work at the point that we left off.

    11 Mr. Nobilo?

    12 MR. NOBILO: Good morning, Your Honours. Our

    13 next witness is Mr. Mato Tadic.

    14 MR. HARMON: Mr. President, I would like to

    15 raise a point of order, and that is that Mr. Tadic was

    16 given to us as a potential witness, his name, six days

    17 ago, and the ruling of this Chamber is that the

    18 Prosecutor should be apprised seven days in advance

    19 before a witness is called. I received a fax from the

    20 Defence on the 12th of January at 7.30 or 7.23 in the

    21 evening.

    22 Now, I am perfectly happy to have this

    23 witness proceed, but we have also received the names of

    24 other witnesses seven days in advance, and we prepare

    25 in accordance with the Rule that requires us to have

  2. 1 seven days notice in advance. So, obviously, we are

    2 somewhat disadvantaged in the cross-examination of this

    3 witness.

    4 We are happy to have him proceed today, but

    5 we may ask that he remain until tomorrow for

    6 cross-examination.

    7 JUDGE JORDA: Mr. Hayman?

    8 MR. HAYMAN: Mr. President, if I am not

    9 mistaken, today is the 19th. Counsel is saying he got

    10 notice on the evening of the 12th. Count backwards,

    11 19, 18, 17, 16, 15, 14, 13, 12. It's seven days. What

    12 happened on the 12th of January? We had a Status

    13 Conference concerning Judge Riad. We didn't know if we

    14 were going to proceed or not this week. We were in

    15 Court until 5.00 or 6.00 on the 12th, and I went home

    16 to my office from Court that morning and I typed up the

    17 disclosure and I faxed it straightaway to the

    18 Prosecutor. I was still working at 7.30 or 8.00,

    19 whenever it was, on the night of the 12th, and I worked

    20 that evening to send that notice after the Court's

    21 hearing. So that's our position.

    22 JUDGE JORDA: I think that we'd have to try

    23 to see things relatively. The Prosecutor says that he

    24 didn't have the seven days. I'm not sure how you are

    25 calculating. I know you all know how to calculate

  3. 1 properly. You know that 12 and 7 is 19. If we start

    2 from the evening of the 12th -- the evening of the

    3 19th.

    4 All right. Please. Yes, there were some

    5 organisational problems having to do with Judge Riad's

    6 unavailability. Will you be prepared for the

    7 cross-examination today? If you aren't -- will you be

    8 ready? If you aren't, we can give you more time.

    9 MR. HARMON: Mr. President, I can let you

    10 know after I hear what this witness has to say.

    11 JUDGE JORDA: All right. Then we can wait.

    12 All right. Let's have the witness brought in for the

    13 time being.

    14 Let me point out to you that the Judges are

    15 not seeing their transcript on the monitors. One of

    16 the Judges can see the transcript. Of course, it's

    17 always in English.

    18 (The witness entered court)

    19 JUDGE JORDA: It's because it's in English.

    20 That's what my colleague is pointing out to me.

    21 All right. Do you hear me, sir? Please

    22 remain standing. Give us your first name, your date

    23 and place of birth, your profession and your residence,

    24 and then you will take an oath and then you will be

    25 seated. Please proceed.

  4. 1 THE WITNESS: My name is Mato Tadic. I was

    2 born on the 15th of August, 1952 in Brcko. I now

    3 reside in Sarajevo in Muhamed Hadzijahic Street, number

    4 43. Up until the 15th of December, 1998, I worked in

    5 the Government of the Federation as Minister of

    6 Justice. At present I am on holiday and I am using the

    7 rights accorded me by the law on state administration.

    8 JUDGE JORDA: All right. Please take the

    9 oath.

    10 THE WITNESS: I solemnly declare that I will

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

    12 truth.

    13 JUDGE JORDA: Thank you. Are you known as

    14 Your Excellency, the minister or sir or Mr.?

    15 THE WITNESS: I think Mr. Tadic would be

    16 best.

    17 JUDGE JORDA: Very well, Mr. Tadic. Thank

    18 you very much. You have agreed to testify for the

    19 Defence, the Defence of the accused, General Blaskic,

    20 who was a Colonel at the time, who has been accused of

    21 various crimes. You are going to answer the questions

    22 first of the Defence attorneys who brought you here,

    23 and then the Prosecution will ask you some questions,

    24 and then possibly the questions that the Judges may

    25 care to ask as well.

  5. 1 Mr. Nobilo, proceed, please.


    3 Examined by Mr. Nobilo:

    4 Q. Thank you, Mr. President.

    5 Mr. Tadic, you have also said you were born

    6 in 1952 in Brcko. Can you tell us something about your

    7 education, where you went to school, when you completed

    8 primary school, secondary school and university?

    9 A. After completing primary school in Brcko, I

    10 went to the Franciscan classical gymnasium in Visoko.

    11 Visoko is a town some 30 kilometres southwest of

    12 Sarajevo. Having completed gymnasium, I went to the

    13 theological faculty of Sarajevo for two years, and

    14 after that the faculty of law of the university in

    15 Sarajevo where I graduated in the 1st of June, 1977.

    16 Having graduated, I returned to Brcko, where I started

    17 work in the Municipal Office of the Prosecutor, Public

    18 Prosecutor, and after passing my exams, legislative

    19 exams, I was the Deputy Public Prosecutor.

    20 From 1983, for eight years, I was the Public

    21 Prosecutor. From the 1st of January, 1991, I have been

    22 Deputy Republic Prosecutor for Bosnia and Herzegovina.

    23 That is where I was when the war broke out in 1992.

    24 On the 28th of April, 1992, I left Sarajevo

    25 and went to Brcko, where I spent only one day and one

  6. 1 night. After that I withdrew to the territory that was

    2 organising resistance to the Yugoslav People's Army and

    3 the Serbian Army in the area of Brcko, after which I

    4 went through several places in Posavina to the north of

    5 Bosnia-Herzegovina. These places were Odzak, Bosanski

    6 Brod.

    7 After that, at the end of 1992, in December,

    8 in fact, I came to Orasje, that is a town to the north

    9 of Bosnia-Herzegovina, which is where I spent the

    10 entire year of 1993. My task was to set up the work of

    11 the courts and Prosecutors' offices and the legal

    12 authorities and to set up the civilian institutions of

    13 parent authority. From Orasje, at the end of February

    14 or the beginning of March, 1994, I went to Mostar to

    15 the Ministry of Justice and of the Republic of

    16 Bosnia-Herzegovina.

    17 On the 30th of March I was in Sarajevo once

    18 again to the assembly, constitutional assembly, of the

    19 Federation after the Washington Accords.

    20 On the 22nd of June, 1994, I was appointed to

    21 the government of the Republic and Federation of

    22 Bosnia-Herzegovina, the government of Prime Minister

    23 Silajdzic. And this was one government with a dual

    24 role, the role of republic and the role of federation.

    25 After that, I was appointed to two more

  7. 1 governments of the federation, on the 1st of February,

    2 1996 and on the 18th of December, 1996, and I performed

    3 my duties up until the 15th of December, 1998. I took

    4 part in a series of international conferences as a

    5 legal expert, conferences linked to

    6 Bosnia-Herzegovina. The most important was the Dayton

    7 conference. In the preparations for the Dayton

    8 conference, I spent some time in New York, and then I

    9 was in Dayton for the entire time as a legal expert and

    10 at several other conferences in London, Vienna, Rome,

    11 et cetera.

    12 Q. Thank you. May we now, after that

    13 introduction, move on to the topic for which we have

    14 invited you here today to testify as a Defence

    15 witness.

    16 Can you tell us something about the

    17 legislative setup of Bosnia-Herzegovina and the fate of

    18 that system, legal system, at the beginning of the war

    19 in Bosnia-Herzegovina?

    20 A. The legal system of Bosnia-Herzegovina had

    21 certain rules and regulations governing it which were

    22 republican, that is to say, of the Republic of

    23 Bosnia-Herzegovina, such as the law on courts and the

    24 law on public prosecutors' offices and some material

    25 rules and regulations. However, at the same time in

  8. 1 ex-Yugoslavia, we had all the process laws at the level

    2 of Yugoslavia, for example, the Law on Criminal

    3 Procedure, and we also had other material rules and

    4 regulations such as the Criminal Code, the Penal Code,

    5 the special part of it relating to individual military

    6 matters, security matters, and others relating to

    7 perpetrators in federal organs, perpetrators of crimes

    8 in federal organs.

    9 After the war broke out in Bosnia-Herzegovina

    10 in April, and especially later on in May 1992, there

    11 was a complete state of chaos in the legal system and

    12 in law, and part of Bosnia-Herzegovina became

    13 separated, that is to say, it became an autonomous

    14 setup with regard to legal matters, the legal system.

    15 That is the portion that was in the Republika Srpska.

    16 The second half, the second part, functioned

    17 under difficult conditions, and the presidency of the

    18 Republic of Bosnia-Herzegovina, in order to establish

    19 the functioning of a legal system, enacted a number of

    20 provisions having the force of law so that it took over

    21 the Law on Criminal Procedure that was prevalent in

    22 Yugoslavia and enacted a second rule and regulation

    23 taking over the law from the one that existed in

    24 Yugoslavia and rules as to its application in

    25 Bosnia-Herzegovina.

  9. 1 Some of the laws, as I have already said, the

    2 republics did not have. For example, the law on

    3 military courts did not exist, and the law governing

    4 military prosecution, these exclusively existed at the

    5 federal level, that is to say, at the level of

    6 Yugoslavia. And for this reason, the presidency of the

    7 Republic of Bosnia-Herzegovina, by a decree, set up

    8 these military courts in Bosnia-Herzegovina and also

    9 military prosecutors' offices. This decree was enacted

    10 on the 13th of August, 1992, and it was published in

    11 the official gazette, number 12/92.

    12 According to that decree, for the territory

    13 of Bosnia-Herzegovina, seven military courts were set

    14 up. They were in Bihac, Banja Luka, Doboj, Tuzla,

    15 Zenica, Sarajevo, and Mostar. Therefore, this decree

    16 encompassed the whole territory of Bosnia-Herzegovina,

    17 regardless of the fact that part of the territory had

    18 already severed the hierarchial cooperation that it had

    19 with the Supreme Court in Sarajevo, and that is the

    20 section that was in the Republika Srpska.

    21 At the end of 1992, because it was impossible

    22 to communicate and because all communications had been

    23 severed, the Supreme Court formed its own departments

    24 outside Sarajevo, and they were in Tuzla, Bihac,

    25 Mostar, and Zenica. Also at the end of 1992 in the

  10. 1 territory of the Croatian Community of Herceg-Bosna, a

    2 decree was enacted to set up military courts and

    3 military prosecutors' offices, and by that decree, four

    4 military courts were formed in Mostar, Livno, Travnik,

    5 and Bosanski Brod. Therefore, already at the end of

    6 1992, we had three legal legislative systems, and very

    7 soon, we would be given a forth in Bosnia-Herzegovina,

    8 and that would be the one set up under the control of

    9 Fikret Abdic in Western Bosnia.

    10 Q. Before we move on, I should like to have a

    11 set of documents handed out which testify to the

    12 decisions made by Herceg-Bosna to set up these courts

    13 of law.

    14 THE REGISTRAR: This is D521A for the French

    15 version and "B" for the English version.

    16 MR. NOBILO:

    17 Q. Mr. Tadic, would you please take a look at

    18 the documents that we have tendered into evidence as

    19 D521 and tell us whether those documents are the ones

    20 that set up the district courts in Herceg-Bosna and the

    21 offices of the prosecutor?

    22 A. Yes, they are.

    23 Q. For the moment, we are not going to enter

    24 into detail, we'll be doing that later on when we speak

    25 about procedure, criminal procedure, but could you, at

  11. 1 this point, tell us why, in your opinion, although you

    2 were not in Mostar at the time and did not take part in

    3 drawing up these laws, why were the military courts set

    4 up in Herceg-Bosna, as the presidency of

    5 Bosnia-Herzegovina had established seven military

    6 courts of law for the entire territory of

    7 Bosnia-Herzegovina previously?

    8 A. Well, you would have to know the

    9 circumstances that prevailed in the territory of

    10 Bosnia-Herzegovina at the time, and then you would be

    11 able to understand the necessity for enacting

    12 provisions of this kind.

    13 When the war broke out, an essential

    14 characteristic was that the communication lines were

    15 cut off between the main centres in Bosnia-Herzegovina,

    16 first of all, between Sarajevo as the capital and the

    17 headquarters of the institutions of the republic, and

    18 also communications were severed with the other large

    19 centres such as Tuzla, Bihac, Mostar, Zenica, let alone

    20 Banja Luka and Doboj, which were constantly under the

    21 control of the army of Republika Srpska.

    22 Secondly, in this territory, apart from the

    23 Yugoslav People's Army, there was no professional

    24 army. There were no military courts that had

    25 previously existed. They were established at the level

  12. 1 of Yugoslavia, and, therefore, we had to find a

    2 solution for this newly arisen situation.

    3 As the armies organised themselves and tried

    4 autonomously, independently, even one from the other,

    5 and that discipline had to be maintained and

    6 disciplinary action taken, then this had to be

    7 regulated on the basis of rules and regulations, and

    8 the Croatian Defence Council, which was established

    9 fairly early on, even before the army of the Republic

    10 of Bosnia and Herzegovina had been set up, and, second,

    11 in the decree of the presidency of Bosnia-Herzegovina,

    12 the army of Bosnia-Herzegovina is mentioned in precise

    13 terms, all of which indicated the need for a decree to

    14 regulate matters of criminal liability and disciplinary

    15 action within the Croatian Defence Council, and this

    16 was a basic reason for which these rules and

    17 regulations were adopted, and it was adapted to the

    18 organisation of the Croatian Defence Council itself.

    19 Q. Before we move further on, can we take a look

    20 at these documents and at Article 1, and I'm going to

    21 read it: "In time of war on the territory of the

    22 Croatian Community of Herceg-Bosna, herein HZHB,

    23 military district courts shall be established."

    24 How do you understand that article of the

    25 provision?

  13. 1 A. From the norms of this provision, it clearly

    2 shows that this is of a temporary nature, provisional,

    3 only during the state of war and that it is a necessary

    4 provision resulting from the outbreak of war.

    5 Q. Tell us, please, district military courts in

    6 the Croatian Community of Herceg-Bosna, at what level

    7 was work in these courts done, and did these courts

    8 recognise the Supreme Court of Bosnia-Herzegovina, that

    9 is to say, the joint court for the whole of

    10 Bosnia-Herzegovina, and if so, how did this manifest

    11 itself?

    12 A. The district military courts of the Croatian

    13 Community of Herceg-Bosna were courts of the first

    14 instance, and they covered certain areas, certain

    15 territories, that is to say, a number of

    16 municipalities. What is characteristic for these

    17 courts is the fact that the hierarchy with respect to

    18 decision making made by the district military courts

    19 were under the competence of the civilian courts of

    20 law, and that means that if there were any complaints

    21 to be made and appeals for crimes committed and

    22 sentenced up to five years' imprisonment to a higher

    23 court, which was a civilian court of law and which had

    24 existed previously, and in more serious cases, appeals

    25 were made to the Supreme Court of Bosnia-Herzegovina

  14. 1 and its department, regional department or branch

    2 office in Mostar; therefore, we retained the

    3 hierarchial competence of the civilian courts over the

    4 military courts.

    5 Q. Am I right in saying that these were civilian

    6 courts which functioned in Bosnia-Herzegovina, which

    7 were functioning there before the war and which were

    8 common to everybody in Bosnia-Herzegovina, that is to

    9 say, on the basis of the laws that prevailed at the

    10 time?

    11 A. Yes, these were civilian courts functioning

    12 on the basis of regular laws governing the regular law

    13 courts and the public prosecutors' offices. And in

    14 Article 5(B) of this particular provision, it is

    15 clearly stated that appeals, as I say, appeals, against

    16 decisions be decided by the Supreme Court of

    17 Bosnia-Herzegovina or its detached chamber of the

    18 Supreme Court of Bosnia-Herzegovina seated in Mostar,

    19 and it also states that this should be resorted to when

    20 there is severed communications between the Supreme

    21 Court, that is to say, when communication with the

    22 Supreme Court in Mostar for Bosnia-Herzegovina was not

    23 possible.

    24 Q. Tell me, as regards court administration and

    25 also ensuring conditions for the operation of courts

  15. 1 and also for the court budget and other logistic

    2 support, what is the hierarchy involved, and under

    3 whose jurisdiction were the military courts in terms of

    4 court administration and material functioning of the

    5 courts?

    6 A. District military courts were under the

    7 jurisdiction, under the competence, of the defence

    8 department, that is to say, civilian authorities that

    9 were then called the defence department, so they were

    10 in charge of the court administration and logistics,

    11 that is to say, ensuring conditions for their proper

    12 operation and also making sure that salaries could be

    13 paid.

    14 Q. Mr. Tadic, could you please explain to the

    15 Court about the judges and the prosecutors? What

    16 status did they have and who appointed military judges

    17 and military prosecutors?

    18 A. Article 2 of this decree says that district

    19 military courts shall perform their functions

    20 independently and shall operate on the basis of the

    21 constitution and law.

    22 May I recall that at that time we had one

    23 constitution of Bosnia and Herzegovina, and as far as

    24 appointments are concerned, that was resolved in

    25 Article 20 of the same decree.

  16. 1 Q. You mean the decree on military courts?

    2 A. Yes, that's the decree I'm talking about, so

    3 I'm talking about Article 20 where it says, "The judges

    4 and jurors of the district military courts shall be

    5 elected and relieved of office by the Presidency of the

    6 Croatian Community of Herceg-Bosna as proposed by the

    7 head of the Defence Department," and they also

    8 submitted reports on their work to the presidency.

    9 Q. Tell me, according to your interpretation and

    10 your perception of the work of military courts, the

    11 commander of an Operative Zone, in this specific case,

    12 Colonel Blaskic, who was subordinated to the main

    13 staff, did he have anything to do with the

    14 establishment of courts, the appointment of judges, the

    15 control over the work of courts or military

    16 prosecutors' offices, and the like?

    17 A. No, no, it is the defence department that had

    18 this right. There is a specific provision stipulating

    19 that, at the proposal of the defence department, the

    20 presidency does this, and there are specific provisions

    21 to this effect, so in this respect, he did not have any

    22 competencies whatsoever.

    23 Q. The next point that I wish to hear your views

    24 on, I would like you to present them to the Court, and

    25 that is criminal procedure.

  17. 1 What was criminal procedure like in

    2 accordance with the Law on Criminal Procedure, and when

    3 was this law of Yugoslavia taken over by Bosnia and

    4 Herzegovina in order to become a law of

    5 Bosnia-Herzegovina and Herceg-Bosna, and what were the

    6 stages involved in this procedure?

    7 A. I pointed out earlier on, when I was

    8 presenting a brief survey of the justice system, that

    9 at the level of Yugoslavia we had a single procedural

    10 law as regards criminal procedure. That was the Law on

    11 Criminal Procedure, and the presidency of

    12 Bosnia-Herzegovina took it over. This was a decree

    13 with legal force and it was published in the Official

    14 Gazette No. 2/92, 6/92 and 9/92.

    15 Lest there be any misunderstanding, may I

    16 just clarify this a bit. Technically, this was taken

    17 over on a double track so-to-speak. Once a decree on

    18 the takeover of the Law on Criminal Procedure of the

    19 former Yugoslavia was passed, and then another decree

    20 was passed on the application and implementation of the

    21 Law on Criminal Procedure, notably, on its

    22 implementation in cases of war or imminent danger of

    23 war. Because some things were simply resolved

    24 differently in cases of war and imminent danger of

    25 war. That is why there were so many Official Gazettes

  18. 1 in which this was published.

    2 Also, at the same time the Criminal Code was

    3 taken over, both the general provisions and the special

    4 provisions, along with certain corrections, and this

    5 was also published in the Official Gazette of the

    6 Republic of Bosnia-Herzegovina 2/92, 8/92 and 10/92.

    7 So the Law on Criminal Procedure now became a

    8 republican law and, to the best of my recollection,

    9 certain chapters are being implemented, notably,

    10 Chapter 15 of the Law on Criminal Procedure which

    11 speaks of so-called previous procedure. That is to say

    12 criminal charges being filed against someone and

    13 someone acting according to these criminal charges

    14 filed.

    15 Q. Please tell the court, according to the Law

    16 on Criminal Procedure which applied in Yugoslavia,

    17 Bosnia-Herzegovina, Herceg-Bosna, who is entitled to

    18 file criminal charges against someone and where are

    19 these criminal charges filed?

    20 A. First of all, there is a general provision

    21 saying that every citizen is entitled to bring criminal

    22 charges against someone. However, in practice, and I

    23 personally studied this particular matter, 90 per cent

    24 of all criminal charges in the former Yugoslavia and

    25 Bosnia-Herzegovina were filed by the police authorities

  19. 1 in charge, and only 10 per cent were filed by all the

    2 rest, that is to say individual citizens, enterprises,

    3 companies, institutions, et cetera. That is to say

    4 criminal charges were mainly brought forth by the

    5 police, that is to say their crime investigation

    6 services that actually filed these criminal reports,

    7 made them up, and saw where there were elements of

    8 crime.

    9 That is the way in which they filed criminal

    10 charges against someone, along with evidence, and they

    11 did this to the Prosecutor's office. Then it was the

    12 Public Prosecutor who received these criminal reports.

    13 Q. Thank you. I think that we have a

    14 termological problem in the English language. My

    15 colleague Mr. Hayman says so. He says that "criminal

    16 report" is being interpreted as "criminal charges

    17 brought against." My colleague, Mr. Hayman, believes

    18 that "criminal charges" are the same thing as an

    19 "indictment," and we are not speaking about

    20 indictments. We are talking about criminal reports

    21 filed by citizens to the police. So perhaps

    22 "complaint" would be a better term, not "charges

    23 brought against," but "complaint lodged." Because

    24 every citizen, every institution can write a paper

    25 saying "my neighbour stole my car yesterday," and he

  20. 1 sends that paper to the police. So that is a criminal

    2 complaint. That is not a formal paper involved in the

    3 criminal procedures. So perhaps, termologically, we

    4 should use a different word for this. We should use

    5 "criminal complaint."

    6 JUDGE SHAHABUDDEEN: Can you ask the witness

    7 to explain this. The police could file a complaint in

    8 the court against someone. Whether you call that

    9 complaint a complaint or an indictment does not matter

    10 for present purposes. What I should like to know from

    11 you, through the witness, is this: Could a private

    12 citizen directly file a complaint in the court against

    13 another citizen or is a private citizen limited to

    14 this, that he must file a report with the police and

    15 leave it to the police to consider whether or not they

    16 would file a formal complaint in the court? Is my

    17 question clear to you, Mr. Nobilo?

    18 MR. NOBILO: It is quite clear, and we have a

    19 highly qualified person to answer these questions,

    20 because the system is substantially different from that

    21 prevailing in Anglo-Saxon law, and therefore it is very

    22 important to explain who is entitled to lodge such a

    23 criminal complaint and who it is addressed to.

    24 A. There is no problem whatsoever. I am going

    25 to explain it to you in detail, because I am one of the

  21. 1 persons who worked on this for years in this kind of a

    2 system, I mean.

    3 An individual citizen can and does lodge a

    4 complaint, in terms of a specific criminal offence,

    5 primarily to the police. Then the police processes the

    6 matter involved. An individual citizen can address a

    7 court of law directly only in a few very special

    8 cases. These are so-called private suits for lesser

    9 forms of incrimination, for example, for insults,

    10 libel, insult and libel. Also, some other offences

    11 which are of a purely private nature belonging to the

    12 domain of the family, for instance, and where it is up

    13 to the citizen whether he is going to lodge a complaint

    14 with the court. This is called a private suit and, in

    15 this case, the court of law is addressed directly.

    16 In all other cases, I am talking about

    17 criminal offences now, the citizen, the private citizen

    18 cannot appear before a court. He has two options. One

    19 is to report the event concerned to the police and then

    20 to have the police process this, to cooperate with the

    21 police in terms of finding the perpetrator, if the

    22 perpetrator is unknown, and also in terms of collecting

    23 evidence.

    24 The other option that the citizen can resort

    25 to is directly addressing the Public Prosecutor.

  22. 1 Q. Just a minute, please. In order to clarify

    2 matters, am I right if I say that the Public

    3 Prosecutor's office is structurally, organisationally

    4 separate from the court, it is a different institution

    5 from the actual court?

    6 A. Yes. In our country the Public Prosecutor's

    7 office is an independent state organ quite separate

    8 from the court of law. That is one of the differences

    9 between our law and Anglo-Saxon law and even the set-up

    10 of laws in some other western countries. In our

    11 country the role of the Public Prosecutor is different

    12 than that in the Anglo-Saxon system and also in some

    13 other western European systems. An individual citizen

    14 could come to the Public Prosecutor's office and say

    15 that his car had been stolen and then a so-called

    16 report is written out on that. Also the citizen

    17 concerned is cautioned against perjury and usually the

    18 evidence involved is poor.

    19 Then the Public Prosecutor resorts to Article

    20 153 of the Law on Criminal Procedure, paragraph 2, and

    21 then the Prosecutor asks the police or other

    22 authorities to have certain data, evidence, submitted

    23 to him to interview certain witnesses. These are

    24 so-called information interviews. Also, they do not

    25 have the weight of evidence before a court of law.

  23. 1 However, the Prosecutor can use this when weighing his

    2 options and seeing whether he is going to institute an

    3 investigative proceedings or not.

    4 I don't know if I've been clear on this point

    5 and whether this has been sufficient.

    6 JUDGE SHAHABUDDEEN: Mr. Nobilo, I am

    7 content.

    8 MR. NOBILO: Thank you. Thank you, Your

    9 Honour.

    10 Q. Mr. Tadic, please tell the court who can give

    11 instructions either to the civilian or to the military

    12 police to take certain action, to conduct pre-criminal

    13 proceedings, to interview a person? So who are the

    14 persons who can give such instructions to the police

    15 according to law?

    16 A. First of all, we must take as a point of

    17 departure the fact that the police has a hierarchy of

    18 its own, and it has its own bosses, so-to-speak. They

    19 say what is going to be done. They give guidelines.

    20 That is one part of it.

    21 The other part is one that can exist,

    22 according to the Law on Criminal Procedure, and it is

    23 the Public Prosecutor in this particular case, and he

    24 is also duty bound in a way to do so. If he asks the

    25 police to work out such a report and if he studies this

  24. 1 report, and if he assesses that some things remained

    2 unclear, and therefore procedure cannot be continued

    3 and he cannot address himself to the court, then he

    4 resorts to Article 153, paragraph 2 of the Law on

    5 Criminal Procedure and asks the police or someone

    6 else.

    7 He is also entitled to ask other institutions

    8 for certain pieces of information, documents. For

    9 example, a sketch of the crime scene, photographs,

    10 analyses, blood analyses, for example. This can help

    11 him make an assessment as to whether he is going to

    12 enter the formal part of the procedure, that is to say

    13 vis-a-vis the court of law.

    14 Q. Tell me, what about the investigation judge?

    15 Can the investigation judge also give the police

    16 instructions in order to carry out certain

    17 pre-investigation actions?

    18 A. Yes, yes. There are explicit powers to that

    19 effect in the Law on Criminal Procedure. They were

    20 somewhat more liberal during the war, for practical

    21 reasons, because the police were more operational in

    22 this way. It was easier for them to get to the crime

    23 scene, for example, et cetera, and the investigation

    24 judge could check that's what the Law on Criminal

    25 Procedure says. That is to say that he could entrust

  25. 1 the police with carrying out certain things.

    2 Some action can only be ordered by the

    3 investigation judge, not by the Prosecutor, not by the

    4 police, and that is exhumation and a post-mortem. This

    5 is exclusively the right of the investigation judge.

    6 Q. So you mentioned three groups of persons who

    7 can give instructions to the military police to take

    8 action, that is, the investigation judge, the Public

    9 Prosecutor and senior police officers. Now I am asking

    10 you the following: The commander of the Operative

    11 Zone, Colonel Blaskic, could he order the military

    12 police to take fingerprints, for example, to interview

    13 persons, to question certain persons or to do anything

    14 else by way of pre-criminal proceedings, anything of

    15 this nature?

    16 A. In order to give an answer to this question

    17 of yours, one has to know how the military police was

    18 set up. It is a special administration within the

    19 Ministry of Defence, and it has a commander of its own,

    20 it has its own head. Within, this military police has

    21 a few segments, for example, the crime investigation

    22 service, the security service, the traffic and

    23 communication service, transport and communication

    24 service, in that sense. This was under the

    25 jurisdiction of the head of the military police, within

  26. 1 this hierarchy of the establishment of the military

    2 police. So Mr. Blaskic did not have these powers.

    3 Q. We are going to go back to the documents

    4 later on, but we are going to try and present the

    5 procedure, the criminal procedure in

    6 Bosnia-Herzegovina. When a case, according to the

    7 opinions of the police, that the case is being

    8 completed, that the perpetrators have been uncovered,

    9 that enough evidence has been amassed, what does the

    10 police do then? Where does it send this case onto

    11 then?

    12 A. The whole case is then sent onto the Public

    13 Prosecutor. It is referred to him.

    14 Q. What decisions can the Public Prosecutor take

    15 once he receives the case from the police?

    16 A. The Public Prosecutor studies the report that

    17 he has received from the police and he can undertake

    18 the following steps. First he can reject it. Article

    19 153, paragraph 1 of the ZKP, Law on Criminal Procedure,

    20 provides for this, because the Prosecutor feels that

    21 the report does not constitute a criminal act, or he

    22 feels that the material offered, for example, that the

    23 case is out of date and there are formal reasons which

    24 can lead him to reject a case. Or that there is no

    25 reasonable doubt that a case exists, that is to say

  27. 1 that there is not even the minimum of evidence

    2 necessary to bring in a case of this kind and to try it

    3 further.

    4 Second, the Public Prosecutor is faced with a

    5 dilemma, because, for example, what the police have

    6 sent him is not a complete report. He doesn't feel it

    7 to be complete. Then relating to Article 153,

    8 paragraph 2, as far as I remember, of the Law on

    9 Criminal Procedure, he seeks prior information,

    10 preliminary information. That is the term we use.

    11 That is, he asks those filing the charge, or the

    12 report, can be asked for additional information. But

    13 he might ask others for additional information, whether

    14 it be institutions or enterprises or whatever,

    15 depending on the case. For example, if it is a

    16 financial matter, he can ask the banks for additional

    17 preliminary information. Once he receives this

    18 information, he will decide what he is going to do.

    19 The third possibility provided for by the law

    20 is that he asks the court to conduct an investigation

    21 or to take investigative steps.

    22 Q. Can you define which court you have in mind,

    23 because this is a specific form of continental law.

    24 A. He asks the competent court to do this and,

    25 if we are dealing with a military court, then he will

  28. 1 ask the military court to do so, to provide him with

    2 this.

    3 Q. What I had in mind was whether he asked the

    4 investigating judge.

    5 A. Yes, he asked the investigating judge. For

    6 example, the report states that the municipal court of

    7 Brcko, the investigating judge, makes a request that a

    8 case be investigated.

    9 Q. What about the investigating judge and the

    10 presiding judge in a court of law later on?

    11 A. According to the Law on Criminal Procedure,

    12 he plays a different role and he cannot take part in

    13 the hearing itself later on, the court hearing. His

    14 role is therefore to complete the evidence on the basis

    15 of which the perpetrator will be heard, and the

    16 witnesses and expert witnesses be heard in a court of

    17 law, in order to ascertain whether there is sufficient

    18 element to raise an indictment.

    19 Q. Could you tell us, please, who decides on

    20 whether an investigation will be set into motion which

    21 represents the first step in a formal criminal

    22 procedure? Who decides this, and does Blaskic, as the

    23 commander of the Operative Zone, was he able to say

    24 that a procedure of this kind be set into motion or

    25 not?

  29. 1 A. No. This is the exclusive right of the

    2 investigating judge, and the investigating judge passes

    3 a decision on an investigative process being set into

    4 motion. The investigating judge may not agree with the

    5 request and demand made by the Public Prosecutor. If

    6 this happens, then it goes before a council made up of

    7 three judges, a panel of three judges, which then

    8 decides whether to accept the request for a hearing or

    9 not.

    10 According to the Law on Criminal Procedure, a

    11 decision on going ahead with a hearing is brought after

    12 the perpetrator is interviewed, and only once the

    13 perpetrator is heard is the case formally opened. Or

    14 the judge can state that he does not agree, and then

    15 this comes up before a panel of judges, and the panel

    16 of judges decide.

    17 Q. The next point that I think would be relevant

    18 and merits explanation, who decides which investigative

    19 steps will be done in the case of an investigative

    20 procedure, and who can propose to a judge that certain

    21 steps be taken?

    22 A. The decision is made by the investigating

    23 judge. That is the right of the investigating judge on

    24 the basis of the Law on Criminal Procedure. The

    25 proposal is made, first of all, by the Public

  30. 1 Prosecutor, because he has lodged the demand, the

    2 request, put in a request. Once he has put in a

    3 request, he proposes at the same time that so and so,

    4 such and such an individual be heard, that expert

    5 analysis be made, whether it be in the criminal field

    6 or the financial field, depending on the case, forensic

    7 or otherwise, depending on the case in hand. But the

    8 defence, that is to say the accused with his defence

    9 counsel, can put forward something themselves, and so

    10 can the investigating judge. They can assess that in

    11 that particular case something more must be done, for

    12 example, that the crime should be reconstructed,

    13 regardless of the fact that this was not proposed

    14 either by the Prosecutor or the defence counsel. It is

    15 the investigating judge that has the final say in this

    16 matter.

    17 Q. Therefore, the investigating judge may

    18 conclude that the case has been sufficiently analysed

    19 and the facts sufficiently established to bring it to

    20 court. What happens next? What is the next step in

    21 this procedure?

    22 A. The investigating judge, once he has

    23 completed his analysis, sends the case back to the

    24 Public Prosecutor, and the Public Prosecutor, once

    25 again, has three possibilities: One is to give up any

  31. 1 further procedure, any further prosecution, because he

    2 has assessed that the material amassed and the evidence

    3 amassed is not sufficient for conviction. Then the

    4 case is dropped.

    5 The second possibility is that the Public

    6 Prosecutor asks additional information, once again, of

    7 the investigating judge. These are rare cases, but if,

    8 in the meantime, some new knowledge comes to light,

    9 then he can ask for this additional material to be

    10 supplied. I think this is Article 158 of the Law on

    11 Criminal Procedure. I'm not quite sure which allows

    12 for this possibility.

    13 The third possibility, which is the most

    14 frequent, that is to raise an indictment against the

    15 perpetrator, to issue an indictment which is sent to

    16 the court of law.

    17 Q. Once again, although we see this from your

    18 context, but, as I am Defence counsel for General

    19 Blaskic and would like an answer, can Blaskic, as the

    20 head of the Operative Zone, wield any influence and can

    21 he influence the Public Prosecutor in him making his

    22 decision as to whether to issue an indictment or not?

    23 A. No, he cannot.

    24 JUDGE JORDA: Mr. Nobilo, I would like you to

    25 get back to the essential point of our discussion

  32. 1 here. Do you hear me, Mr. Hayman? I would like us to

    2 get back to the focus of our discussion. We want to

    3 know what was the role, the function of the military

    4 police at the time of that conflict in relation to what

    5 the accused can do. Otherwise, we are hearing a kind

    6 of course on criminal procedure, which takes me back to

    7 concepts of which we are familiar in civil law. It's

    8 very interesting, of course, but the focus of the

    9 discussion is the military police and the orders that

    10 the accused might give in wartime, in conflict time.

    11 We would like to know whether there was a failure to

    12 act properly, a failure to go to see the Prosecutor

    13 General, but all the rest really is a presentation of

    14 the civil procedures that was used for the Croatian

    15 community of Herceg-Bosna.

    16 That last question seems to better focus onto

    17 what our discussion really is about. Otherwise we are

    18 going to waste time.

    19 MR. NOBILO: Yes, Mr. President, we felt it

    20 necessary to give you the framework of criminal

    21 procedure and to show that Blaskic had no role in this,

    22 and we wanted to show that his role did not exist at

    23 any stage of the criminal procedure, and we shall, of

    24 course, be going back to the military police and show

    25 this in greater detail, but we felt that we should

  33. 1 inform the Court of the specific features of this

    2 procedure, where it is other people altogether from the

    3 legislative system who decide whether a case is to be

    4 brought to trial or not, and this is in connection with

    5 General Blaskic.

    6 We have now arrived at the point in which we

    7 mentioned the indictment and the case and criminal

    8 proceedings, so we will end there as far as criminal

    9 procedure is concerned.

    10 I'd now like to ask that documents be handed

    11 around which concern the military police. We have a

    12 set of documents, first the Croatian text and then the

    13 English translation. They haven't been joined

    14 together, that is to say, the Croatian text is separate

    15 and the English text is separate, but they should be

    16 conjoined as one piece of evidence.

    17 THE REGISTRAR: This is D522A for the English

    18 version.

    19 MR. NOBILO: Mr. President, we have the Rules

    20 and Regulations on the Establishment of the Military

    21 Police of the Croatian Armed Forces of Herceg-Bosna

    22 dating back to 1994, the regulations for the formation

    23 and work of the military police of the armed forces,

    24 and we have translated only the articles which we

    25 consider to be relevant to this case.

  34. 1 MR. HARMON: Mr. President, just to note for

    2 the record, that puts us at somewhat of a

    3 disadvantage. While the Defence thinks that these

    4 particular articles that start at, I think, Article 54

    5 may be relevant to the case, there may be other

    6 relevant articles that the Prosecutor feels are

    7 important to bring to the attention of this witness,

    8 and without a full and complete translation of that

    9 document, we are handicapped in conducting an effective

    10 cross-examination on this particular document.

    11 JUDGE JORDA: How many articles are there,

    12 Mr. Nobilo?

    13 MR. NOBILO: In this document, we have

    14 translated articles from Article 53 on up until Article

    15 73 inclusive. It is a document which the Prosecution

    16 has received but probably not translated yet. As you

    17 noticed a moment ago and on several occasions, the

    18 Defence only received parts of documents, a milinfosum

    19 or some other document which the Prosecutor felt to be

    20 important, and then we only used those parts of the

    21 document that we received. Sometimes they were

    22 photocopied in such a way that only one line of the

    23 document was shown, whereas the other part was left out

    24 of the photocopied page.

    25 JUDGE JORDA: Mr. Harmon, while this is not a

  35. 1 great difficulty, this isn't the first time that one of

    2 the parties, you included, considered out of an entire

    3 document one part is relevant for the cause that you

    4 are defending, I believe; isn't that true?

    5 MR. HARMON: Usually, Mr. President, in that

    6 circumstance, the other side has the ability to read

    7 the document in toto. In this situation,

    8 Mr. President, where there is a portion of a document,

    9 this is only Article 53 through Article 73, I know that

    10 there are 52 articles that precede 53. I don't know

    11 how many articles go beyond 72. I don't have the

    12 ability to read those particular provisions --

    13 JUDGE JORDA: My second question is simply to

    14 know whether the entire decree, from Articles 1 to 52,

    15 were all of those given to you in Serbo-Croatian, as

    16 Mr. Nobilo seems to say? Was it given to you?

    17 MR. HARMON: We received this last week,

    18 Mr. President. The --

    19 JUDGE JORDA: That's what I thought. All

    20 right. First of all, this is not the first time that

    21 one of the parties receives an entire document, but the

    22 other party considers that, for its case, only some of

    23 the elements are relevant. It is self-evident, of

    24 course, that you can take the entire document, and I

    25 could, therefore, ask the -- or, rather, you can ask

  36. 1 the translation service, I'll tell the Registrar, that

    2 the other relevant articles should be urgently

    3 translated so that you could know the content, and then

    4 if you need it for your cross-examination, you can have

    5 it. I'll ask that the translation service be asked to

    6 translate this material immediately. Of course, that

    7 would delay the cross-examination.

    8 Mr. Nobilo, proceed, please.

    9 MR. HARMON: Thank you, Mr. President.

    10 MR. HAYMAN: I just want to note,

    11 Mr. President, our objection in the sense that the

    12 Prosecutor, not only has he given us partial

    13 translations of documents he has used in his case, he

    14 gives us partial documents. No rule of completeness

    15 has been applied by this Court to documents provided by

    16 the Prosecutor and --

    17 JUDGE JORDA: Yes. I told the Prosecutor

    18 that this was not the first time, not the first time,

    19 that this has happened. That's the first of my

    20 answers, I, perhaps, should explain myself, but then I

    21 added that the party that does not know the entire

    22 document is the one that has to ensure that the

    23 document is completely translated, and I can say to the

    24 Prosecutor that that is his responsibility to have the

    25 document translated. That's all I'm saying.

  37. 1 What's your objection, Mr. Hayman?

    2 MR. HAYMAN: The Court is suggesting that the

    3 cross-examination should be delayed until some larger

    4 part of the document is --

    5 JUDGE JORDA: Well, I don't know. I don't

    6 know. Perhaps that won't be necessary. I'm simply

    7 saying that perhaps the cross-examination should be

    8 delayed. It is the Judges who asked you this,

    9 Mr. Hayman, I, myself, or Judge Shahabuddeen could

    10 wonder why, from Articles 1 to 52, we don't know what

    11 the context is. That is the question that the Judges

    12 could ask, and that would delay the cross-examination.

    13 I think it natural that one of the parties wants to

    14 know what is the general context of the document.

    15 You, Mr. Hayman, I'm not criticising you, I'm

    16 not criticising you, but I consider it natural for you

    17 to consider that what is relevant would be Articles 53

    18 to 73. I'm not criticising you either insofar as you

    19 have disclosed the entire document. I made sure of

    20 that. Perhaps I might reproach the Prosecutor for not

    21 having had the entire document translated earlier, but

    22 having said this, I consider it natural that the

    23 Tribunal and the Prosecution should have the entire

    24 translation of the entire document, and I'll ask this

    25 to be translated urgently. I think that the

  38. 1 translation service will not take a great deal of time

    2 to do so.

    3 MR. HAYMAN: If that is the rule,

    4 Mr. President, we want the entire documents of all the

    5 snippets and pieces and one lines and one paragraphs

    6 that have been given --

    7 JUDGE JORDA: Mr. Hayman, Mr. Hayman,

    8 Mr. Hayman, please, please, you always try to establish

    9 rules, codes, and procedures. You are not in a

    10 specific legal system. You are in front of Judges who

    11 are trying to get to the truth of the case. Let us

    12 operate, please. Immediately, you don't have to

    13 construct a rule and a regulation. I'm not at that

    14 point. If you had asked that at one point, we would

    15 have considered that issue at another point, but for

    16 the time being, I'm simply settling this issue.

    17 You have supplied -- you are irreproachable,

    18 irreproachable, when you supplied the entire text. The

    19 Prosecutor could have -- let me finish please. I'm the

    20 one presiding here. The Prosecutor could have had the

    21 document translated earlier. He said that he was

    22 missing one day. He could have had the entire document

    23 translated earlier, but in light of the questions that

    24 you're asking, the Prosecutor is now saying to us that,

    25 in fact, he is missing Articles 1 to 52, so we're

  39. 1 trying to resolve the problem.

    2 I've consulted Judge Shahabuddeen, and I'm

    3 trying to resolve the issue. I'm not trying to resolve

    4 all the questions since the 23rd of January, 1997.

    5 I've been trying to gain some time here. And if I were

    6 the one to ask, what would you say if I were asking

    7 that 1 to 52 be translated, and in French in addition

    8 to all that? Do I complain when I don't have the

    9 documents in French? I don't say anything. That is

    10 the end of that. I don't like people intervening once

    11 the Trial Chamber has taken a decision.

    12 I'll ask the Registry that the translation

    13 service act immediately so that, as quickly as

    14 possible, this text can be translated. That's

    15 natural. It's natural to have the context.

    16 MR. HAYMAN: I'm sorry I've angered you,

    17 Mr. President, if I have, but it is my duty to --

    18 JUDGE JORDA: The incident is closed. Yes,

    19 it is your duty, but I also have a duty, that is, to

    20 move things forward. Immediately, a rule must be

    21 constructed, that's what one asks for. I'm trying to

    22 resolve questions here. We always run into new

    23 problems in this Tribunal. Let's try to resolve them

    24 as we go along. I've never refused you a translation.

    25 Let me point that out to you.

  40. 1 The incident is closed and the decision has

    2 been taken. The translation service will start to work

    3 on this as quickly as possible, and if the Prosecutor

    4 needs explanations of the witness by keeping the

    5 witness here, we can have him stay. We're wasting a

    6 lot of time, and we waste a lot of time on a lot of

    7 points, and I don't think that it is the Presiding

    8 Judge who is causing us to waste most of the time

    9 here.

    10 Mr. Nobilo, please ask your question.

    11 In fact, we're going to take a break now.

    12 That will calm all of us down, starting with me.

    13 A 20-minute break.

    14 --- Recess taken at 11.28 p.m.

    15 --- On resuming at 11.59 a.m.

    16 JUDGE JORDA: We can now resume the hearing.

    17 Have the accused brought in, please.

    18 (The accused entered court)

    19 JUDGE JORDA: As regards the organisation of

    20 our work, we will sit until a quarter to one, and then

    21 resume at 3.00 and work until 6.00.

    22 Thank you. Will the translation be ready

    23 tomorrow?

    24 THE REGISTRAR: The translation will be

    25 available to the Prosecution tomorrow in the beginning

  41. 1 of the afternoon.

    2 JUDGE JORDA: You see. That does not change

    3 the fact that we agree that the exhibit can be

    4 admitted.

    5 Mr. Nobilo, you may proceed.

    6 MR. NOBILO: Thank you, Mr. President. I

    7 have another document that is part of the regulations

    8 for the formation and work of the military police, the

    9 military police of the armed forces of the Croatian

    10 Republic of Herceg-Bosna, so it is similar with D522;

    11 however, it is not in continuity with the articles that

    12 are in D522. We have separated it, and in this way, we

    13 are going to shorten the time needed for translation

    14 because we have three or four articles more there.

    15 Could be please have this document

    16 distributed to the Court and the parties? So this is a

    17 document that we'd also like to have tendered and is

    18 part of the regulations for the formation and work of

    19 the military police from 1994.

    20 THE REGISTRAR: This is D523A for the English

    21 version.

    22 MR. NOBILO: Thank you.

    23 Q. Mr. Tadic, this document, 522 and also D523,

    24 is called "Regulations for the Formation and Work of

    25 the Military Police of the Armed Forces of the Croatian

  42. 1 Republic of Herceg-Bosna from 1994." Please tell the

    2 Court, what is the relationship in terms of hierarchy

    3 between this legal act called the regulations and the

    4 legal act which is called the law? So what is the

    5 relationship in terms of hierarchy between the Law on

    6 Criminal Procedure on the one hand and the regulations

    7 on the formation and work of the military police on the

    8 other hand?

    9 A. The Law on Criminal Procedure has absolute

    10 supremacy over the regulations. The regulations are a

    11 lower legal act. If this lower legal act is not in

    12 compliance with the law, then the law is overriding.

    13 Q. Am I right if I say that the lower act would

    14 have to correspond to the institutes of the higher act?

    15 A. Yes.

    16 Q. Now, I would like to read a few sections of

    17 the regulations to you, and then I would like to put a

    18 question to you. I would like to find a connection

    19 with the law.

    20 I'm referring to Article 12 of D523: "While

    21 accomplishing the tasks from the sphere of actions,

    22 authorised official persons from the military police

    23 have and apply the same authorities that, by the

    24 regulations that determine the criminal procedure, have

    25 the authorised bodies of the Ministry of Internal

  43. 1 Affairs of Croatian Republic of HB and authorised

    2 official persons from the police."

    3 So I would like to ask you the following: As

    4 it says here in Article 12, regulations concerning the

    5 military police, what did the legislator have in mind

    6 when using this, that is to say, regulations that

    7 determine the criminal procedure?

    8 A. This Article 12 refers to regulations from

    9 the Law on Criminal Procedure, that is to say, the Law

    10 on Criminal Procedure regulated in detail how

    11 authorised persons would act within criminal procedure.

    12 Q. I wish to draw your attention to document

    13 D522, Article 53, and I'm reading it out: "The

    14 military police service for fighting crime consists of

    15 a number of jobs and tasks which, by the law which

    16 determines the criminal procedure, are being done by

    17 the offices of the Ministry of Internal Affairs, and

    18 they are related to criminal actions which go under the

    19 jurisdiction of military courts, and they are: 1)

    20 Criminal acts that are committed by military persons;

    21 2) Criminal acts that were committed by officers and

    22 employees in military forces while doing their service

    23 or in connection with their service and for other

    24 criminal acts that they commit as coexecutors together

    25 with military persons; 3) Criminal acts that were

  44. 1 committed by civilians but go under the jurisdiction of

    2 the military court."

    3 Again, my question is, is this norm directly

    4 related to the provisions of the Law on Criminal

    5 Procedure that you spoke of, and is it in conformity

    6 with the Law on Criminal Procedure?

    7 A. Yes. This Article 53 is a norm which is in

    8 line with the Law on Criminal Procedure, and it

    9 directly pertains to the powers that are envisaged by

    10 the Law on Criminal Procedure.

    11 Q. Now let us repeat this: The Law on Criminal

    12 Procedure, does it allow the commander of the Operative

    13 Zone to command the military police in terms of what

    14 are going to be the investigative or pre-investigative

    15 actions that they will take?

    16 A. No, that is not within his authority.

    17 Q. The next article, Article 55, in this same

    18 document, D522, I would like to draw your attention to

    19 that: "Actions from Article 54 of this book of

    20 regulations are being done ex officio by the authorised

    21 official person from the unit of the military police

    22 that has the jurisdiction under the territorial

    23 division and on the request of the authorised state

    24 attorney or the court."

    25 This provision of the regulations, that is to

  45. 1 say, Article 55, does it also reflect what you spoke

    2 of, as you were commenting on the Law on Criminal

    3 Procedure when you said who can exercise influence over

    4 the military police in terms of the things that they

    5 can do?

    6 A. Yes. This provision contained in Article 55

    7 is one that also addresses itself to the Law on

    8 Criminal Procedure, and, with your permission, perhaps

    9 it should be stated here, that the decree on the

    10 establishment of district military courts, I don't know

    11 exactly, but I think that it is Article 25, it

    12 specifically stipulates that the internal affairs

    13 authority is equated with the security authorities in

    14 the armed forces.

    15 The district military court is equal to a

    16 regular first instance court, and the district military

    17 prosecutor with the senior prosecutor, that is to say,

    18 the republican prosecutor as far as certain powers are

    19 concerned, that is to say, those stemming from the Law

    20 on Criminal Procedure. So this decree speaks for

    21 itself, that these are powers enjoyed by the

    22 authorities from the Ministry of Internal Affairs and

    23 the security services in the case of war and, in this

    24 case, this is the military police, that is to say, the

    25 section that dealt with crime investigation.

  46. 1 Q. Did I understand you correctly? Are you

    2 trying to say that when the military police acts as a

    3 crime investigation police does, then they have to act

    4 in accordance with the Law on Criminal Procedure?

    5 A. Yes, absolutely. Several decrees that were

    6 passed, including the decree on military courts, as

    7 well as the decree on the application of the Law on

    8 Criminal Procedure during war, in cases of imminent

    9 danger of war, state this explicitly.

    10 Q. Articles 69, 70, 71, I don't really have to

    11 read all of them out, but could you take a look at

    12 them, and could you say whether they fully elaborate on

    13 the Law on Criminal Procedure, and are they fully in

    14 accordance with the role of the police according to the

    15 Law on Criminal Procedure? So would you please read

    16 Article 69, 70, and 71?

    17 A. Yes, yes, this is a consistent transcription,

    18 so to speak, of the Law on Criminal Procedure, that is

    19 to say, regulating the relationship between the

    20 civilian police and the public prosecutor, and that is

    21 what I stated in my introductory remarks, that is to

    22 say, the police vis-a-vis the public prosecutor in

    23 terms of filing criminal reports.

    24 Q. I should like to draw your attention to

    25 something else, I'm going to read it to you, and I

  47. 1 believe that this is the only one that refers to the

    2 military commander, and that is Article 73 of the

    3 regulations, that is, D522, and I'm reading it out

    4 now: "The commanders of the units and all the members

    5 of the Croatian Defence Council are obliged to, within

    6 their rights and obligations, give necessary help to

    7 authorised official persons from the military police

    8 and enable them to collect information and accomplish

    9 other acts that are mentioned in the Law on Criminal

    10 Procedure."

    11 So could you please tell me your opinion?

    12 What duty is prescribed for a military commander, in

    13 this particular case, Blaskic? How would you interpret

    14 this provision?

    15 A. It says there that all citizens and

    16 institutions, enterprises, et cetera, are duty-bound to

    17 assist the police, authorised official persons, in

    18 terms of bringing to justice and to a court of law the

    19 perpetrators of criminal offences.

    20 Here it has been translated into military

    21 conditions, which would mean that the commander of a

    22 unit, as well as others within military units, are

    23 duty-bound to help the military police and its crime

    24 investigation section in terms of operative work

    25 involved in collecting evidence concerning a particular

  48. 1 crime.

    2 We can illustrate this by the following: To

    3 give them insight into documents; to allow them to

    4 enter or tour certain facilities; also giving them

    5 access to certain persons, letting them question

    6 certain persons from military units; then providing

    7 them with technical assistance, so whatever the police

    8 would do, in terms of crime investigation and in terms

    9 of collecting evidence. That would be the duty of a

    10 military commander as well as others in a military

    11 structure. Because the military police, that is to

    12 say, its section that relates to security, has wide

    13 powers and they are even entitled to question the

    14 commander himself and to look into his responsibility

    15 too.

    16 Q. I think that there is a bit, or perhaps even

    17 more than a bit, perhaps this is a substantial mistake

    18 in the interpretation. So could you repeat once again

    19 what is the duty of the military commander? Does he

    20 have certain powers over the military police or does he

    21 have other duties? Please, would you repeat this once

    22 again slowly.

    23 A. It is the duty of the military commander,

    24 first and foremost, to help the crime investigation

    25 police and to put at their disposal whatever they

  49. 1 require. That is to say to provide them with certain

    2 documents, to allow them access in terms of certain

    3 facilities, to question certain witnesses that are

    4 under the command of that commander, that is to say

    5 within his hierarchy, and also to give them technical

    6 assistance, if necessary.

    7 Q. Thank you. Does every citizen have that kind

    8 of obligation, every owner of an enterprise, everybody

    9 according to the Law on Criminal Procedure?

    10 A. Yes. At the very outset I said that this

    11 provision does exist in the Law on Criminal Procedure;

    12 however, naturally, it does not mention the army. It

    13 says that every citizen, authorised person, institution

    14 of the state, enterprises, are duty-bound to help find

    15 the perpetrators of criminal acts.

    16 Q. Now let us go back to document D521. Let us

    17 look at Article 27, the only one where the commander is

    18 mentioned. These are special provisions related to

    19 district military courts. Again, it is a decree with

    20 the force of a law of the Croatian community of

    21 Herceg-Bosna on district military courts during the

    22 situation of war or imminent danger of war. I am going

    23 to read this entire article to you, and I would like to

    24 ask you to give me your views on this. This is the

    25 only one where explicit mention is made of the

  50. 1 commander.

    2 So I am reading Article 27: "The commander

    3 of a military unit or military establishment shall take

    4 every possible measure to prevent the perpetrator of a

    5 criminal offence who is prosecuted ex officio from

    6 hiding or escaping, to preserve the traces of the

    7 criminal offence and objects which may serve as

    8 evidence, and shall gather all information which may be

    9 of use for the conducting of criminal proceedings.

    10 The commander of the unit or establishment

    11 shall immediately inform the district military

    12 prosecutor or his immediate superior commanding officer

    13 of the data referred to in paragraph 1 of this

    14 article.

    15 The report of the commander referred to in

    16 paragraph 2 of this article may be used in the manner

    17 envisaged in the provisions of Articles 84 through 86

    18 of the Law on Criminal Procedure.

    19 A military commander holding the post of

    20 company commander, an equivalent or higher post or an

    21 authorised official of the Department of the Interior

    22 and the security department, or the military police,

    23 may arrest a member of the military in cases envisaging

    24 detention under the Law on Criminal Procedure.

    25 The commander and the authorised official

  51. 1 referred to in paragraph 1 of this article shall

    2 immediately, and at the latest within 12 hours,

    3 surrender the member of the military whom they have

    4 arrested, together with a report on the reasons for his

    5 detention with evidence to the investigative judge of

    6 the competent district military court or to the nearest

    7 military unit and/or military establishment which shall

    8 immediately bring him before the competent

    9 investigative judge of the district military court. If

    10 the military commander or the authorised official are

    11 unable to do this, they shall forthwith, and within

    12 eight hours at the latest, inform the investigative

    13 judge of the competent district military court or the

    14 nearest military unit or the military establishment of

    15 which the arrested person is a member to immediately

    16 take charge of him and without delay escort him to the

    17 nearest competent investigative judge of a district

    18 military court."

    19 My first question would be the following:

    20 Does this relate to a known person when the perpetrator

    21 is known or is the commander supposed to investigate on

    22 his own whether somebody committed a crime or not?

    23 What do you think?

    24 A. Well, judging by the context of Article 27,

    25 its norm, it proceeds from the assumption that the

  52. 1 perpetrator of the mentioned crime is known, and that

    2 this person should be detained, all the traces kept,

    3 and this person should be surrendered to the military

    4 police or, rather, the investigative judge.

    5 Q. Give me an example, please, an imaginary

    6 example. In which cases could there be this kind of a

    7 situation that the military commander, for example

    8 Colonel Blaskic, is duty-bound to detain a person and

    9 to make sure that all the evidence is there? What

    10 case, for example?

    11 A. I shall quote an example. For example, let

    12 us say that a murder was committed in his unit and that

    13 everyone knows who did it, because it happened there.

    14 The perpetrator is detained, all the traces are kept,

    15 also the crime scene remains intact. They wait for the

    16 police to come, the investigative judge and the Public

    17 Prosecutor, and then the entire case is handed over to

    18 them.

    19 Q. Thank you. Could we please have another

    20 document distributed now.

    21 THE REGISTRAR: This is D524, 524A for the

    22 French version and B for the English version.

    23 MR. NOBILO:

    24 Q. May we identify the document. We discussed

    25 it, that is to say you discussed it. So could you just

  53. 1 identify it and tell us what it represents, this new

    2 document.

    3 A. This is the regulation, the decree by which

    4 the application of the Criminal Code of the Republic of

    5 Bosnia-Herzegovina and the Criminal Code of the SFRY,

    6 Socialist Federal Republic of Yugoslavia, in the time

    7 of the immediate threat of war or in time of war on the

    8 territory of the Republic of Bosnia-Herzegovina, the

    9 Croatian community of Herceg-Bosna.

    10 Q. Thank you. Another question now, and this

    11 would be the last question in that block of questions.

    12 We have seen the formation of the military courts and

    13 Prosecutor's offices in Bosnia-Herzegovina and what

    14 their relationship was with the commander to the

    15 Operative Zone. I would now like to ask you the

    16 following: In the army of Bosnia-Herzegovina, was

    17 there any other solution, and if there was, could you

    18 describe it to us briefly, what the relationship there

    19 was like between the commander of the corps and the

    20 legal organs active for his territory.

    21 A. The presidency of the Republic of

    22 Bosnia-Herzegovina enacted, as I've already said, a

    23 provision on the founding of military law courts for

    24 the territory of Bosnia-Herzegovina, and they are the

    25 seven courts that I enumerated earlier on. However, in

  54. 1 addition to that decree, the presidency of the Republic

    2 of Bosnia-Herzegovina enacted a second decree on

    3 special or separate military courts.

    4 The characteristics of this decree and the

    5 differences from the first decree is the following:

    6 According to the first decree that was enacted, the

    7 military courts were, hierarchially speaking,

    8 organisationally speaking, one of the organisation of

    9 the Defence ministry, that is to say under their

    10 supervision, and the presidency of the Republic of

    11 Bosnia-Herzegovina appointed judges.

    12 According to the second decree, we have a

    13 purely military component. In this second decree the

    14 commanders of the military units, as far as I remember,

    15 and I think that I even have the documents somewhere

    16 with me, that the commander of the brigade or lower

    17 down echelon, the military echelon, could form a

    18 military court. In that case he would be responsible

    19 to it, that is to say he would be the individual

    20 appointing the judges. That is the so-called decree on

    21 special or separate military courts. I think that it

    22 was published in the Official Gazette.

    23 Q. Take a look at your notes. Feel free to do

    24 so, if you need a date or a figure.

    25 A. In Official Gazette No. 12/92 of the 13th of

  55. 1 August, 1992.

    2 Q. That refers to the army of

    3 Bosnia-Herzegovina, does it not?

    4 A. Yes, it refers exclusively to the army of

    5 Bosnia-Herzegovina.

    6 Q. May we now move onto the last area, the

    7 system by which criminal sanctions are put into

    8 effect. What law was prevalent in Bosnia-Herzegovina

    9 up until the war and what were the solutions in the

    10 Croatian community of Herceg-Bosna? What solutions

    11 were found in view of the types of detention centres or

    12 gaols and how criminal sanctions were executed?

    13 A. Bosnia-Herzegovina had its own laws on the

    14 execution of criminal sanctions. It had these before

    15 the war, and it was the prevailing law on the basis of

    16 which all sentences were executed, had institutions for

    17 the execution of prison sentences, and other

    18 institutions, forensic institutions, institutions for

    19 minors and so on.

    20 The presidency of the Republic of

    21 Bosnia-Herzegovina also, when the war broke out,

    22 enacted a decree on the application of this law in a

    23 state of war. The characteristics of that particular

    24 decree which came into force in a situation of war was

    25 that within the frameworks of the existing gaols or

  56. 1 detention centres, departments were set up for a

    2 military prisons. Within the frameworks of the

    3 penitentiaries or detention centres, there were

    4 departments or special units for military convicts.

    5 Identical solutions existed in the Croatian community

    6 of Herceg-Bosna, once again on the basis of a decree.

    7 In both systems, and in the district military

    8 courts, a detention was provided for. That is to say

    9 that is the phase while the investigation is being

    10 conducted and before sentence is actually being passed

    11 and judgment passed. The perpetrator then goes to the

    12 district prisons and the penitentiaries, or houses of

    13 correction, where there were special units for military

    14 personnel.

    15 Q. If I have understood you correctly, there are

    16 civilian detention centres for individuals whose trials

    17 are ongoing, and then there are military detention

    18 centres for military individuals who are undergoing a

    19 trial, and a prison for criminal sanctions with both

    20 civilian units and military units?

    21 A. Yes, that's right.

    22 Q. Could you now tell the Court something about

    23 the individual types of detention centres or prisons.

    24 Under which ministry did they fall? Who was the

    25 authority over these prisons?

  57. 1 A. By decree this question was regulated for the

    2 military prisons, military detention. It was the

    3 district military court that was in charge of these

    4 centres and supervision was the defence department,

    5 which was later to become the Ministry of Defence.

    6 When it came to prison sentences, supervision was done

    7 by the defence department and, as I say, later on it

    8 became the Ministry of Defence.

    9 It was quite separate, in the sense of

    10 supervision from the civilian section. Civilian

    11 section came under the Ministry of Justice, whereas the

    12 Ministry of Defence was in charge of the military

    13 units.

    14 Q. Therefore, both categories of detainees or

    15 prisoners were under the control and supervision and

    16 administration of two ministries, the Ministry of

    17 Defence and the Ministry of Justice, the Ministry of

    18 Justice for civilians and the Ministry of Defence for

    19 the soldiers. When you say Ministry of Defence, do you

    20 consider that this was the civilian section of the

    21 Ministry of Defence or the military units and military

    22 commanders of the Operative Zones? Did the military

    23 commanders of the Operative Zones have any supervision

    24 over military detention centres?

    25 A. We are talking about the civilian part of the

  58. 1 Ministry of Defence, so the Ministry of Defence was the

    2 executive power and within the frameworks of its

    3 competencies and authorisations it had other segments.

    4 One of those segments was the main staff and, for

    5 example, the chief of the military police and so on.

    6 So this belonged to the civilian section of that

    7 ministry.

    8 Q. I would now like to ask, although it does

    9 emanate from your question, a direct question. Did

    10 Blaskic, according to any basis, was he authorised to

    11 control or command what was happening in a military

    12 detention centre or military prison?

    13 A. No, that was not his competence or

    14 authority. I am just looking through the decree you

    15 have tendered into evidence, which states precisely

    16 that supervision is -- that the Department of Defence,

    17 which was later the Ministry of Defence, was in charge

    18 of this.

    19 Q. You are talking about the decree on military

    20 courts of law?

    21 A. Yes, that's right.

    22 Q. I would now like to have a new document

    23 handed out. This document has been translated only

    24 into French. That's how we received it from the

    25 interpretation and translation services. It is very

  59. 1 short and I would like to read it out so that everybody

    2 can hear.

    3 THE REGISTRAR: This is D525. A for the

    4 French version.

    5 MR. NOBILO:

    6 Q. I am going to read it out, because there

    7 isn't an English translation. The preamble: "On the

    8 basis of Article 7, paragraph 2 of the decision on the

    9 establishment of the Croatian community of Herceg-Bosna

    10 dated the 18th of November, 1991, the presidency of the

    11 Croatian community of Herceg-Bosna at its session of

    12 the 3rd of July, 1992 adopts the following decree."

    13 It is the decree relative to the treatment of

    14 individuals taken prisoner in armed conflicts in the

    15 Croatian community of Herceg-Bosna, Article 1.

    16 "The members of the JNA and the reserve

    17 formations of the JNA and all other persons taken

    18 prisoner in the armed conflicts against the community

    19 of Herceg-Bosna (prisoners in the HZHB) the regulations

    20 of the Geneva Conventions shall be applied relevant to

    21 prisoners of war of the 12th of August, 1949."

    22 And in brackets it states: "The Official

    23 Gazette of the SFRY," and the number is 24/1950.

    24 Article 2: "The chief of the justice

    25 department and administration department in

  60. 1 co-operation with the chief of the defence department

    2 and the chief of the interior affairs department shall

    3 determine the location and locations in which in

    4 keeping with the Geneva Conventions, as mentioned in

    5 Article 1 of this provision, the prisoners shall be

    6 detained."

    7 Article 3: "The defence department shall

    8 administer these locales related to Article 2 of this

    9 decree."

    10 Article 4: "This decree comes into force on

    11 the day of its adoption."

    12 The signatures, the President of the HVO and

    13 HZHB, Mate Boban, and on other the side it states the

    14 Republic of Bosnia-Hercegovina, the Croatian community

    15 of Herceg-Bosna, the presidency and the number, Mostar

    16 the 3rd of July, '92.

    17 I should now like to ask you to comment on

    18 this document and how the question of prisoners of war

    19 was determined, who determined where they would be

    20 located, who was in charge of the localities where the

    21 prisoners of war were located, and so on.

    22 A. Bearing in mind the provisions of the Geneva

    23 Conventions on the treatment of prisoners of war dated

    24 the 12th of August, 1949, this provision was enacted,

    25 this decree was enacted as soon as the armed conflict

  61. 1 broke out, that is to say, at the beginning of July,

    2 with the aim of respecting the provisions of the Geneva

    3 Conventions, and in that sense, three departments were

    4 placed in charge of these affairs in the organisation

    5 as it existed in the Croatian Community of

    6 Herceg-Bosna, that was the justice department, the

    7 defence department, and the internal affairs

    8 department, that is to say, the police, that locations

    9 be set for the temporary detention of prisoners of war

    10 in conformity with the provisions of the conventions.

    11 The important fact to note here and in regard

    12 to this decree, in addition to the fact that the decree

    13 had to be applied and the convention had to be applied,

    14 is that the administration, supervision, and control

    15 was in the hands of the defence department in the

    16 organisation of the Croatian Community of Herceg-Bosna,

    17 and that was under their jurisdiction, whereas the two

    18 other departments, only in a certain way, were a

    19 support and helped localities to be found and

    20 pinpointed for situations of this kind to be used for

    21 purposes of detention.

    22 Q. According to your knowledge, did the military

    23 commanders, under the main staff, including Blaskic as

    24 the commander of the Operative Zone, were they, in any

    25 way, authorised to meddle and to interfere into the

  62. 1 affairs of organisation and location of the prisoners

    2 of war, and did they have any authorisations and

    3 competencies over the prisoners of war?

    4 A. No. That was not under their competence or

    5 this was not the competence of the commanders, and the

    6 decree took it out of their hands, so to speak, and

    7 that is how things stood, so that Mr. Blaskic had no

    8 authorisations in that regard.

    9 Q. According to your recollections and

    10 knowledge, you were not the justice minister in 1993,

    11 you were appointed minister in 1994, sometime in March,

    12 but according to your recollections and knowledge, did

    13 the military court in Travnik and the military

    14 prosecutor's office in Travnik function normally in the

    15 course of 1992 and 1993?

    16 A. I said in my introduction today, I said a

    17 number of sentences on the difficulties that the courts

    18 found themselves faced with in functioning throughout

    19 Bosnia-Herzegovina, and regardless of the fact that I

    20 was not in Mostar, I was at the time in the northern

    21 parts of Bosnia, in Bosanska Posavina at the time, I

    22 was in constant contact and communication because I was

    23 detached. And my duties were to go to Posavina to set

    24 up the legal system there, and I know that it was a

    25 very difficult situation. There were no cadres, not

  63. 1 enough cadres, not enough conditions for the

    2 functioning of law courts.

    3 This particular decree governing military

    4 courts was enacted on the 17th of October, 1992, and it

    5 was published in November 1992 in the official gazette,

    6 but it was not until the end of 1992 that they began to

    7 work according to those decrees, because we were not

    8 able to establish courts of law until then, and Travnik

    9 represented a particular problem because they did not

    10 have the necessary conditions, and it took a long

    11 time. There was just one judge in Travnik for a long

    12 time and just one prosecutor.

    13 Thirdly, they were not able to establish

    14 their court in Travnik but had to seek a locality

    15 outside Travnik which was all right on the basis of the

    16 decree, but they did encounter many difficulties before

    17 these courts of law could begin to function properly

    18 for the whole area, and particularly in Central

    19 Bosnia.

    20 MR. NOBILO: Mr. President, that completes

    21 our examination-in-chief. We would like to offer D521

    22 to D525 into evidence.

    23 JUDGE JORDA: Yes, Mr. Harmon?

    24 MR. HARMON: In respect, Mr. President, of

    25 the exhibits, I have no objection to 521. That appears

  64. 1 to be an official translation.

    2 In respect of the translation of 522, if you

    3 can bear with me for just a moment, 522 does not appear

    4 to be an official translation. In fact, in listening

    5 to the translators and comparing what is contained in

    6 522, there appear to be some errors. This may have

    7 been a translation that was provided to Mr. Nobilo by

    8 one of his colleagues in Zagreb or some place else, but

    9 it is not an official translation, and I would ask that

    10 the record note that and that there be an official

    11 translation of those particular provisions.

    12 In respect of 523, I believe, Mr. President,

    13 that also is not an official translation, but a

    14 translation was provided, the English translation, at

    15 least, was provided to counsel and did not come through

    16 the official translation section, as it has no

    17 translation mark on it.

    18 Exhibit 524 appears to be an official

    19 translation. I have no objection to that, and 525,

    20 Mr. President, I do not see an official translation

    21 mark, but I believe Mr. Nobilo said in respect of 525,

    22 that came from the translation section.

    23 With those reservations on 522 and 523, that

    24 is, noting that those exhibits are not official

    25 translations, I would make that objection only, and,

  65. 1 therefore, Mr. President, I would ask that those two

    2 exhibits be officially translated into English and into

    3 French, the two official languages of the Tribunal.

    4 JUDGE JORDA: Rather than having them

    5 retranslated, perhaps the registrar could ask the

    6 translation service, which has to translate Articles 1

    7 to 52 of Exhibit 522, couldn't we ask the translation

    8 service to do a quick verification of the translation

    9 of 522 and 523 and then to make corrections or to say

    10 that the translation seems to be proper?

    11 THE REGISTRAR: It's possible to verify the

    12 translations, but I may call your attention to the fact

    13 there is no obligation that the translations provided

    14 in this courtroom be done by our translation service.

    15 Let me draw the attention of the parties to that.

    16 JUDGE JORDA: Yes. That's a point on which I

    17 should have asked a question.

    18 Mr. Prosecutor, you do not have an absolute

    19 right, independently of what was said before the break,

    20 in respect of the translation service, but you

    21 yourself, at the proper time, must make the comments

    22 which are important to you.

    23 However, Mr. Registrar, could we still not

    24 have the translation checked quickly, since, in

    25 addition, the translation service is responsible for

  66. 1 the translation of Articles 1 through 52?

    2 THE REGISTRAR: Yes, of course. Since that

    3 is the request, we will verify the documents.

    4 JUDGE JORDA: Very well. But there is no

    5 right in principle. It often happens that each of the

    6 parties provides translations to one another.

    7 All right. We will resume at 3.00. The

    8 Court stands adjourned.

    9 --- Luncheon recess taken at 12.50 p.m.

















  67. 1 --- Upon commencing at 3.10 p.m.

    2 JUDGE JORDA: Have the accused brought in,

    3 please.

    4 (The accused entered court)

    5 JUDGE JORDA: We are going to work until

    6 6.00. Excuse me for my delay. We had some work

    7 outside the Tribunal. I apologise to you for that.

    8 Mr. Harmon, we can begin again now for the

    9 cross-examination, after the witness has been brought

    10 in, of course.

    11 MR. HARMON: As I mentioned this morning,

    12 this witness was called one trial day earlier than we

    13 expected. I am not prepared to proceed on the

    14 cross-examination now, and I would request that the

    15 matter be brought back, possibly, tomorrow.

    16 I understand, Mr. President, from

    17 Mr. Dubuisson, that the translation of the complete

    18 exhibit will be done by approximately noon. We will, I

    19 understand, start tomorrow at 2.00, so I would be

    20 prepared to cross-examine this witness by 2.00

    21 tomorrow.

    22 JUDGE JORDA: All right. Do you have another

    23 witness, Mr. Hayman?

    24 MR. HAYMAN: We do, Mr. President. It would

    25 be our request, though, that, putting aside those

  68. 1 aspects of his cross-examination that may involve the

    2 untranslated portions of the document, that the balance

    3 of Mr. Harmon's cross-examination should proceed now.

    4 Why is that? That's because we gave notice seven

    5 calendar days ago that this witness would testify. The

    6 Court's order regarding disclosure of witnesses does

    7 not speak in terms of hours. It did not mandate

    8 disclosure of a certain number of hours, that is seven

    9 times 24 hours. It spoke in terms of calendar days.

    10 I've already expressed that we were in Court last

    11 Tuesday, we had a Status Conference, discussing the

    12 very issue of whether we would be in session this week,

    13 and whether we would be proceeding by deposition and so

    14 forth. So we have complied with Your Honours order

    15 with respect to disclosure of witnesses with respect to

    16 this witness. There is no reason to delay the

    17 cross-examination on that ground.

    18 In terms of the document, I won't go into my

    19 more fundamental disagreements with the position of the

    20 Prosecutor on that, but suffice it to say that if there

    21 are questions he has that pertains to untranslated

    22 portions, then they pertain only to those sections, and

    23 there is no reason to not continue and get the bulk of

    24 the cross-examination done this afternoon while, quite

    25 frankly, the testimony is fresh in all of our minds.

  69. 1 That's what we would like to do,

    2 Mr. President.

    3 JUDGE JORDA: Before I consult with my

    4 colleague, would you like to make a comment,

    5 Mr. Harmon?

    6 MR. HARMON: Mr. President, I think we should

    7 take a look at the Court's order and operate in the

    8 spirit of the Court order. The Court order was seven

    9 days ahead of the calling of the witness. Let's not be

    10 too cute and let's not cut this too closely. The fact

    11 of the matter is giving notice at one minute to

    12 midnight on the seventh calendar day ahead of time

    13 would be in violation of the spirit of the Court's

    14 order. Likewise, Mr. President, it's my contention

    15 that giving notice at 7.23 in the evening is

    16 essentially the equivalent of six days in advance, and

    17 we had received from the defence a list of other

    18 witnesses seven days in advance. Obviously, we prepare

    19 based on the notice and the compliance with the Court

    20 order.

    21 These witnesses, there are a number of these

    22 witnesses who we were given at 7.23 that evening, I

    23 spent a significant amount of the lunch hour, all but

    24 ten minutes, trying to collect exhibits so I could use

    25 with this particular witness. I have not completed

  70. 1 that process.

    2 So I regret to say that I am not prepared to

    3 proceed with the cross-examination of this witness. I

    4 am quite confident that the witness's testimony will

    5 remain fresh in everybody's mind until tomorrow at 2.00

    6 in the afternoon. We would ask, Mr. President and

    7 Judge Shahabuddeen, that we proceed with another

    8 witness. I will be prepared at 2.00 to cross-examine

    9 this witness.

    10 JUDGE JORDA: I wouldn't like this discussion

    11 to go on endlessly, but I am sure that you weren't

    12 pleased with my having interrupted you this morning,

    13 Mr. Hayman, but I give you the floor again before I

    14 consult with my colleague.

    15 Referring you to Rule 90(G), the Trial

    16 Chamber's exercise control of the mode and order that

    17 interrogating witnesses present so as to make the

    18 interrogation presentation effective for the

    19 ascertainment of the truth. I give you the floor one

    20 more time so that you can not say that we have not

    21 allowed to you speak.

    22 MR. HAYMAN: You have, and I am grateful,

    23 Mr. President. I will be brief. The testimony of the

    24 criminal justice system and the extent of which Colonel

    25 Blaskic could punish individuals for criminal

  71. 1 violations is at the heart and soul of the case that

    2 the Prosecutor brought by his indictment in 1995. If

    3 he is not ready now to cross-examine a witness about

    4 that criminal justice system, shame on him. He didn't

    5 do his homework in 1995 when he accused my and

    6 Mr. Nobilo's client of failing to punish criminal

    7 acts.

    8 Secondly -- one moment. My colleague reminds

    9 me as well, Mr. President, that with the exception of

    10 two of the documents shown to the witness, these are

    11 public documents, public published documents which came

    12 from the same Narodni list sources which the Prosecutor

    13 has drawn on as well. It is a search for truth, and a

    14 search for truth involves a balance and equal position

    15 of the parties, and there being no good reason to

    16 delay, cross-examination should proceed just in the way

    17 it proceeded for the Defence on many occasions, which

    18 may have been difficult, but nonetheless we proceeded.

    19 It should proceed now as well.

    20 JUDGE JORDA: Thank you. I would like to

    21 consult with my colleague.

    22 The cross-examination of the witness will

    23 begin tomorrow in the afternoon.

    24 Mr. Hayman, do you have another witness or

    25 would you like us to start again at a quarter to four

  72. 1 so you can bring the witness in?

    2 MR. NOBILO: Mr. President, we do have

    3 another witness.

    4 JUDGE JORDA: Is he ready? Do you want to

    5 start immediately?

    6 MR. NOBILO: Yes, immediately. Yes, yes, he

    7 is all set.

    8 JUDGE JORDA: All right. The Tribunal thanks

    9 you. So that things be clear, Mr. Harmon, tomorrow

    10 afternoon you will have exactly the same amount of time

    11 that the Defence used for the examination-in-chief.

    12 MR. HARMON: May I inquire of Mr. Dubuisson

    13 how much time that was?

    14 THE REGISTRAR: Two hours and ten minutes.

    15 MR. HARMON: Thank you, Mr. Dubuisson.

    16 (The witness entered court)

    17 JUDGE JORDA: Do you hear me, sir? If you

    18 speak French, I can hear you. Perhaps it's best for

    19 you to put your headset on because not everybody speaks

    20 French here. I thank you for what you've just said.

    21 Thank you for speaking my own native language. There

    22 are two official languages in this Tribunal. You can

    23 use either of the two you like or your own native

    24 language because all of the interpreters booths are

    25 available to you.

  73. 1 Give us your first name, your profession and

    2 place of birth and current profession and then remain

    3 standing for a few moments in order to take the oath.

    4 Please proceed.

    5 THE WITNESS: My name is Slobodan. My family

    6 name is Jankovic. I was born in 1932 in Brussels.

    7 JUDGE JORDA: And your profession?

    8 THE WITNESS: I am a retired professor, but I

    9 still give courses at the Zagreb University.

    10 JUDGE JORDA: Professor of what, please?

    11 THE WITNESS: I am a professor of flight

    12 mechanics.

    13 JUDGE JORDA: And where do you reside

    14 currently?

    15 THE WITNESS: I live in Zagreb.

    16 JUDGE JORDA: Very well. That is enough for

    17 now. Would you please take the oath.

    18 THE WITNESS: I solemnly declare that I will

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

    20 truth.

    21 JUDGE JORDA: Thank you very much. You may

    22 now be seated.


    24 JUDGE JORDA: You have agreed, at the request

    25 of the Defence, to testify in the trial of General

  74. 1 Blaskic, who at the time of the alleged facts was a

    2 Colonel. First you will answer the questions of the

    3 lawyers who had you come in, that is Mr. Nobilo, and

    4 then the Prosecutor will ask some questions and,

    5 lastly, you may be asked some questions by the Judges.

    6 Mr. Nobilo, please proceed.

    7 MR. NOBILO: Thank you, Mr. President.


    9 Examined by Mr. Nobilo:

    10 Q. Professor, you've already said that you were

    11 born in 1932 in Brussels. Could you describe your

    12 education to us a bit and perhaps the most important

    13 things you did upon graduation.

    14 A. I studied at the Royal Military School in

    15 Brussels at the polytechnic division. After that, I

    16 worked as an officer in the army of the former

    17 Yugoslavia, and that was until 1972.

    18 As an engineer, I first worked in a factory

    19 and then at the Military Institute in Belgrade and then

    20 at the Higher Military School in Zagreb, and that was

    21 until 1972.

    22 In 1972, I became a reserve officer, and I

    23 went to give courses at the University of Belgrade,

    24 courses on exterior ballistics. Before I left the

    25 army, I completed postgraduate studies

  75. 1 in aerodynamics. I presented a thesis in exterior

    2 ballistics, and then I moved to the civilian university

    3 in Belgrade. Then I was, again, engaged by the former

    4 Yugoslav army as a specialist in aerodynamics, and I

    5 worked on a guided missile, and when that programme was

    6 finished, I asked the army to be transferred to Zagreb

    7 to the military academy where I wanted to finish my

    8 technical career, my scientific career.

    9 At the military academy, I gave courses until

    10 these unfortunate events occurred. Right before these

    11 events, I asked to be retired, and I was in retirement

    12 when everything began. The Croatian government asked

    13 me to resume my work, and, therefore, I went to work as

    14 a technician at the institute in Zagreb, and then I was

    15 reengaged as a professor at Zagreb University.

    16 In the meantime, I have been in retirement,

    17 but I continue to give courses, and I am a tutor.

    18 Q. Professor, your latest book is called "The

    19 Mechanics of Projectile Flight"; is that correct?

    20 A. Yes. My book has just appeared. It's called

    21 "The Mechanics of Projectile Flight." I consider that

    22 this book is quite good.

    23 Q. Thank you. Professor, could you please tell

    24 the Court, what did the Defence put at your disposal

    25 from this case and which is related to the shelling of

  76. 1 Zenica in April 1993? Also, could you please tell the

    2 Court what are the relevant facts that you managed to

    3 establish on the basis of your knowledge from the field

    4 of ballistics, and then we are going to distribute a

    5 set of documents.

    6 Would you please speak about the ballistics

    7 problems that you studied in relation to the Blaskic

    8 case?

    9 A. I had available to me the text of the

    10 witnesses, the testimony here, that is, the text of the

    11 Major of the international forces, I don't remember his

    12 name, Witness V, Witness W, and I also received

    13 photocopies that had to do with that text. These

    14 copies and photographs are of very poor quality;

    15 however, there was a great deal of data in the text,

    16 and on the basis of that data, I did some calculations,

    17 and I can give you some of those calculations, that is,

    18 the results of those calculations.

    19 Q. Before we have these documents distributed,

    20 the Major from the international forces whose statement

    21 you read, was that Major Baggesen?

    22 A. Yes, that's correct.

    23 MR. NOBILO: I would like to have this set of

    24 documents distributed, please.

    25 Q. Professor, could you please wait for a moment

  77. 1 until the documents that you prepared are handed out to

    2 everyone?

    3 THE REGISTRAR: This is D526.

    4 MR. NOBILO:

    5 Q. Professor, the first two or three

    6 documents --

    7 MR. CAYLEY: Mr. Nobilo, Mr. President,

    8 excuse me. Could we have the translation into English,

    9 please? We don't have it.

    10 MR. NOBILO: That is exactly what I wish to

    11 mention. The first three documents have only three

    12 sentences that we would like to have translated via the

    13 ELMO because these are technical figures, it's not a

    14 real text, so we are going to put it on the ELMO and

    15 have it interpreted with the permission of the Court.

    16 So I'm talking about the first three documents, and

    17 there is one sentence only that relates to technical

    18 figures.

    19 MR. CAYLEY: Well, my only comment would be,

    20 Mr. President, I accept what my learned friend is

    21 saying, but it may well be that some of the material

    22 that is untranslated in this document is relevant to

    23 the Prosecution, so I would say at this moment, let's

    24 wait and see.

    25 JUDGE JORDA: Please continue, Mr. Nobilo.

  78. 1 MR. NOBILO:

    2 Q. Professor, you have the floor. Could you

    3 please explain to the Court first and foremost what you

    4 found in Witness W's statement and Major Baggesen's

    5 statement, and what conclusion did you draw on that

    6 basis, and then could you please present your findings

    7 and your opinion?

    8 As regards the first three documents from

    9 this set that you prepared, we are going to put a

    10 sentence that is relevant, and we're going to have it

    11 read out, but we're going to put them on the ELMO, that

    12 is, this device next to you, so that our colleagues who

    13 do not speak Croatian can see exactly what this is

    14 about?

    15 A. Since I am a technician, a technical person,

    16 a scientific person, I have a technical and scientific

    17 logic which I will present.

    18 In the text that I read of Witness W, on page

    19 6.016 on line 8, 6.020, and on 6.021, line 2, they said

    20 that there was a 122-millimetre calibre and that it was

    21 an explosive projectile. Then on page 6.025, line 10

    22 and line 11 --

    23 JUDGE JORDA: So that people understand

    24 everything here, excuse me, so that we would agree, for

    25 the public as well, that your witness is contesting the

  79. 1 ballistic conclusions that were given by some of the

    2 Prosecution witnesses at the Zenica shelling, is that

    3 what we're talking about, the time of the shelling of

    4 Zenica, in order to put this back into context, because

    5 otherwise, I suppose that many people will be lost.

    6 MR. NOBILO: You're right, Mr. President.

    7 Perhaps it was my mistake.

    8 Yes, we are talking about the shelling of

    9 Zenica. The Prosecutor claimed, through their

    10 witnesses, that the six shells that fell on Zenica in

    11 April 1993 were fired from the positions of the HVO in

    12 Puticevo. We have the transcripts of the Prosecutor's

    13 witnesses, and we gave them to our ballistics expert,

    14 and we also gave him photocopies of the pictures of the

    15 shell imprints and also other related documents, and

    16 then we asked the expert to give his expertise and his

    17 expert opinion on this as to the quality of the

    18 Prosecutor's witnesses' statements and also whether

    19 there is any proof that these shells were fired from

    20 HVO positions, from Puticevo, as the Prosecutor and

    21 their witnesses have been claiming.

    22 And, at first, the professor is going to

    23 refer to the exact pages and places where there are

    24 relevant ballistics details, and then he is going to

    25 make mathematical calculations as to whether this was

  80. 1 possible or not.

    2 JUDGE JORDA: Mr. Cayley, do you have any

    3 objection?

    4 MR. CAYLEY: Mr. President, I don't want to

    5 delay matters, but I would make two observations. The

    6 first observation is this: I've actually just looked

    7 at the transcript to which the witness is referring,

    8 and I cannot find any reference to what he's actually

    9 saying, except on one particular reference. Now, be

    10 that as it may, I'm trying to assist my learned

    11 friend.

    12 The second point is, this witness, I do not

    13 believe, should come here to comment on the quality of

    14 the Prosecutor's evidence. That is a matter for the

    15 Judges. He is an expert. He can comment on the

    16 conclusions that witnesses reached and state whether he

    17 believes that those are correct or incorrect, but I

    18 don't believe that a witness can be brought in here to

    19 comment on the quality of evidence. That is a matter

    20 for you.

    21 JUDGE JORDA: Mr. Nobilo, Mr. Nobilo,

    22 proceed. Go ahead.

    23 MR. NOBILO: Would you like me to say

    24 something in reference to what the Prosecutor just said

    25 or should I continue my examination-in-chief?

  81. 1 JUDGE JORDA: Yes, I would like you to

    2 comment on what the Prosecutor said.

    3 MR. NOBILO: This witness was brought here in

    4 order to present his own expertise as to whether the

    5 shell could have been fired from HVO positions, as

    6 claimed by the Prosecutor, or not.

    7 Within this expertise, he is going to give a

    8 critical analysis, a scientific, accurate analysis of

    9 the data that was provided by the Prosecutor through

    10 his witnesses, namely, this is an area that we are not

    11 familiar with as lawyers, the ballistics expert. So to

    12 call him a ballistics expert was invited by the

    13 Prosecutor, and he spoke of certain exact figures, and

    14 he presented this to us as science, and we brought in

    15 another scientist, not only to establish what happened,

    16 but also to give his opinion about the methods that

    17 were applied by that witness, because Witness W, this

    18 key witness, did not have any findings of his own. He

    19 was making various calculations. He was trying to

    20 orient himself in space, and he said, "Yes, the firing

    21 came from Puticevo."

    22 So there are two things involved here. One

    23 is to make a calculation as to whether the shooting

    24 could have come from Puticevo or not, from the HVO

    25 positions, and, on the other hand, as an expert, he

  82. 1 will analyse the findings of the Prosecutor's witness

    2 from the point of view of mathematics and ballistics.

    3 JUDGE JORDA: As regards the first point,

    4 Mr. Cayley, the Judges agree with you. If the witness

    5 cites sentences from the transcript, he has to cite

    6 them exactly. In any case, the Prosecution can monitor

    7 that. We had to be clear here.

    8 As regards the second point, the Judges think

    9 that there is nothing unusual for the witness, who is a

    10 specialist in ballistics, to come to discuss certain of

    11 the assertions of one of your witnesses. There is

    12 nothing excessive in that. There is nothing rigid in

    13 that.

    14 Mr. Nobilo, be careful with the sentences

    15 that the witness cites, because Mr. Cayley is right,

    16 the sentences have to be cited correctly.

    17 Mr. Cayley says that he only saw one of that

    18 was correct, is that right?

    19 MR. CAYLEY: Mr. President, I am just trying

    20 to assist my learned friend. I mean, we can discuss it

    21 with the witness during cross-examination exactly what

    22 he is referring to.

    23 JUDGE JORDA: Very well. Mr. Nobilo, you

    24 have to be sensitive to some of the questions and to

    25 the comments that the Prosecution has made. I'm sure

  83. 1 you will be sensitive.

    2 MR. NOBILO: I wish to thank him for his

    3 assistance.

    4 Q. However, professor, please do proceed. What

    5 are the relevant facts for a ballistics expert that you

    6 found in the transcript and that you later used for

    7 your own calculations?

    8 A. I cited the pages and lines from which I had

    9 found the data necessary for the exact calculations and

    10 for the mathematical simulations of this event.

    11 Therefore, as I said, it was clearly said that it was a

    12 122 millimetre --

    13 JUDGE JORDA: Excuse me for stopping you,

    14 because there is no point in our continuing. I don't

    15 like to interrupt things. No point in continuing

    16 discussing things if we don't agree on the basis. In

    17 the transcript, whether it's in French or in English,

    18 did Major Baggesen speak about 122 caliber? Yes or no,

    19 Mr. Cayley?

    20 MR. CAYLEY: Yes, he did, Mr. President. It

    21 may well be that if the witness is referring to the

    22 French transcript, that may have different page numbers

    23 to the English transcript, which is a problem for us.

    24 JUDGE JORDA: That's a problem. That's a

    25 real problem. For once I have a French speaking

  84. 1 witness. That's really a tragedy. Well, all right.

    2 Try to refer the French quotation to the English one.

    3 Let's not get lost in pointless discussions. It's yes

    4 or no. Is there a correspondence between the English

    5 and French versions? Can the registrar help us,

    6 perhaps?

    7 THE REGISTRAR: There is a difference in the

    8 French and English pagination.

    9 JUDGE JORDA: Are the paginations different?

    10 What I am interested in knowing is not the difference

    11 in the pagination but in the caliber. That's what I

    12 would like to know about.

    13 THE REGISTRAR: Well, I would not think so.

    14 THE WITNESS: The English pages, I was citing

    15 the English pages.

    16 JUDGE JORDA: Well, that's the advantage of

    17 having an English speaking and French speaking

    18 witness. You read English as well?

    19 THE WITNESS: I don't know English as well,

    20 but I do understand what Mr. Cayley said.

    21 JUDGE JORDA: Was it or was it not a 122

    22 caliber weapon? Everything revolves on that.

    23 MR. CAYLEY: 122 millimetres, Mr. President.

    24 JUDGE JORDA: All right. Let the witness

    25 continue. All right. There were 122 millimetre

  85. 1 shells. I hope we won't interrupt you again. Go

    2 ahead.

    3 A. The first thing to which I have to call your

    4 attention is that there are two explosive projectiles

    5 of 122 millimetres, two different types, two completely

    6 different types. One, is the Russian projectile, which

    7 dates from the Second World War. We could call that

    8 one an old projectile. It's not a modern one, and

    9 which is OF462.

    10 Then there was a modern one, which is M7666,

    11 which is a construction of the former Yugoslav army

    12 dating from the 1980's, '82, '83, more or less.

    13 The modern projectiles of the former Yugoslav

    14 army has an elongated fuse with 735 metres. I am

    15 looking at the original document from the former

    16 Yugoslav army. Here at the top you can see exactly

    17 that it's the military institute with the number of the

    18 document. Here you see that the speed of the

    19 projectile was 736 metres. That's the only thing we

    20 need this document for, only to show where my sources

    21 are, because it's very important, and will be very

    22 important for later on.

    23 JUDGE JORDA: But there's a handwritten

    24 correction, isn't there not?

    25 THE WITNESS: Yes, there is a correction.

  86. 1 The correction goes against my presentation, therefore,

    2 there is no problem. Because the correction is that

    3 the velocity is greater, which does not support what I

    4 say, therefore, I suppose there won't be any problems.

    5 MR. NOBILO:

    6 Q. Please, for the purposes of the transcript,

    7 so that it would be quite clear, even after several

    8 months, I would like to say that we are now looking at

    9 document number 3 of D526. In the middle under 3.5 you

    10 refer to a sentence which reads as follows: With the

    11 initial speed of 735 metres per second --

    12 JUDGE JORDA: This is document L?

    13 THE WITNESS: The modern projectile has a

    14 range, I found the range in document K here. It's

    15 17.133 kilometres, 70.000 kilometres and 133 metres

    16 (sic). The document --

    17 Q. Please, professor. We have to do this as

    18 precisely as possible. The transcript, the translation

    19 says 70.000 kilometres.

    20 A. 17.133 metres.

    21 Q. And also, for the purposes of the transcript,

    22 I would like to say that we are talking about D526,

    23 page 2, which is marked with a letter K, and then point

    24 2. The text reads as follows: For a howitzer, 122

    25 millimetre howitzer, D-30J, two part bullets are used

  87. 1 with full or partial powder charges and cumulative with

    2 little rotation illuminating smoking projectiles up to

    3 17.133 metres.

    4 Professor, can you tell us whether both

    5 shells can be fired from the same howitzer?

    6 A. As I said, that this howitzer has two

    7 projectiles, which are explosive, that is the range and

    8 initial velocity of the more modern one, which was

    9 constructed by the former Yugoslav army in the early

    10 1980s. I don't have the exact year. In addition, the

    11 document --

    12 Q. Professor, just a minute, please. The

    13 President did not have the opportunity to hear you

    14 throughout. So you confirmed that both shells can be

    15 fired from the same 122 millimetre howitzer, right?

    16 A. That's correct.

    17 Q. Tell us, please, is there a difference

    18 between the range of the old shell and, as you called

    19 it, the modern shell?

    20 A. We are now only speaking of the modern one,

    21 the one from the former Yugoslav army. As I have said,

    22 and it's noted by M76, that's M76, but I would also add

    23 that this is an official document of the former

    24 Yugoslav army, and this is only the first page on which

    25 we see that it has been signed, and that it really is a

  88. 1 document that comes from the former Yugoslav army, that

    2 the source is a sure one. That this is sure data.

    3 Q. Professor, we have a certain procedure here

    4 in the Court of law, and it's quite different from the

    5 technical matters that you have been involved in. So I

    6 would like to read the first page of document D526 and

    7 then I am going to put a question to you. So I am

    8 reading this for the sake of the interpretation.

    9 "Federal Secretariat for National Defence, Technical

    10 Department. IN No. 2372, the 25th of June 1986."

    11 "On the basis of point 35 of the instructions

    12 for elaborating and using military expert literature,

    13 Roman numeral IV, U-1/2, edition of 1982, I hereby

    14 prescribe the following technical instructions:

    15 Howitzer 122 millimetres D-30J. Description, handling

    16 basic and technical maintenance which shall enter into

    17 force immediately." Head, Major General, master of

    18 sciences, Vlado Sljivic, engineer, signed.

    19 So, professor, please, would you tell us

    20 whether this first page relates to the second and third

    21 pages that you have already referred to?

    22 A. This is the first page of the document. And

    23 what I showed you, that is where the maximum range is

    24 indicated, is on page 18. The other pages are not

    25 necessary. This is simply to show you that this was an

  89. 1 original document.

    2 JUDGE JORDA: So you are not going to -- do

    3 you waive the other pages, Mr. Cayley? Will you give

    4 up on the other pages?

    5 MR. CAYLEY: Mr. President, I would like to

    6 know what they say before I waive on them. They may be

    7 of some use.

    8 JUDGE JORDA: I say we find ourselves in the

    9 same problem. Let me turn to the witness.

    10 Sir, there are 18 pages, referring to the 122

    11 military gun, that -- a lot of pages on that gun.

    12 THE WITNESS: It is the description of the

    13 howitzer and giving other data which are not relevant

    14 here.

    15 JUDGE JORDA: You are saying that. You say,

    16 with all the respect that I owe to you, I have to say

    17 to you -- I have to say that in an adversarial

    18 discussion. You have to understand that.

    19 THE WITNESS: If necessary, we can present

    20 the entire document.

    21 JUDGE JORDA: We won't ask for it to be

    22 translated, because we won't fall ourselves into the

    23 situation we were in this morning where decrees were

    24 involved, but we could ask the Prosecution be given the

    25 manual that will not be a condition for the

  90. 1 cross-examination.

    2 Perhaps it should be given to you,

    3 Mr. Cayley. If you don't want to --

    4 MR. CAYLEY: We would like a copy.

    5 MR. NOBILO: Mr. President, with your

    6 permission --

    7 MR. CAYLEY: The President is addressing me

    8 at the moment, Mr. Nobilo.

    9 Mr. President, we would like a copy of the

    10 manual, if that's possible. As you can see, this is

    11 page 19, so there are several pages beforehand and

    12 perhaps several pages thereafter. The next document is

    13 page 4, again, of a larger document. Yes, we would

    14 like the full documents and we would like to know what

    15 they say.

    16 MR. NOBILO: Mr. President, allow me.

    17 JUDGE JORDA: You can give a copy of those

    18 documents, I suppose that you have one, you can give a

    19 copy to the Prosecution, and the Prosecutor will draw

    20 the inferences from it that it wishes to. But the

    21 cross-examination will not depend upon that, unless we

    22 have the witness brought back.

    23 Can you give him the documents, Mr. Nobilo?

    24 MR. NOBILO: Mr. President, I cannot, because

    25 I haven't got them, and I don't feel that it is

  91. 1 necessary, because if we continue in that fashion,

    2 we'll never get over this trial. I very much doubt

    3 that Mr. Cayley is interested in how a howitzer is

    4 manufactured. What we are talking about is its range,

    5 and we have brought the necessary material on the

    6 howitzers range and firepower. Are we going to bring

    7 in all the manuals related to the construction of a

    8 howitzer? I don't see any sense in that. We are

    9 talking about the construction of a howitzer, how it is

    10 manufactured, the parameters used in its manufacture,

    11 whereas we are dealing with range and fire power.

    12 JUDGE JORDA: The Presiding Judge is asking

    13 for it, not Mr. Cayley.

    14 I understand what you are trying to

    15 demonstrate, and you find the basis for your

    16 demonstration on this page 19 with the letter K. I

    17 understand that. But, in fact, one could wonder

    18 whether the description might not provide arguments

    19 that could be useful for the following arguments, and

    20 which would be useful for the Prosecution. I am

    21 neutral in this case. I am not always neutral, but I

    22 try to keep things on an even footing. We are not

    23 trying to waste time. We are not running into the same

    24 problems we did this morning, which had to do with

    25 hierarchical constitutions.

  92. 1 For you the Defence, what is involved here is

    2 establishing that in order to -- that you want to

    3 counter what was testified to by a witness, and your

    4 witness is prepared to show that on a page it is stated

    5 -- I don't know Serbo-Croat, but we can see that what

    6 you are saying is correct. Thank you for helping us.

    7 That's fine. But we can legitimately ask the

    8 question. It's not very complicated. I am simply

    9 asking you not today to provide these documents.

    10 That's not going to be a condition for the

    11 cross-examination. There must be a manual that can be

    12 found, since it's a military instruction manual. I am

    13 not asking you provide it today or tomorrow. It's not

    14 going to be a condition for the cross-examination.

    15 However, if in the final arguments the

    16 Prosecution wishes to counter certain points, it can be

    17 in a position to do so. Do you have that document?

    18 THE WITNESS: It can be found, not in The

    19 Hague. I'm sure it won't be in The Hague.

    20 JUDGE JORDA: Well, not now. You don't have

    21 it in your briefcase, by any chance?

    22 THE WITNESS: No. A colleague has it, and

    23 I'll ask him to make a copy of it for us.

    24 JUDGE JORDA: Thank you very much. Please

    25 continue.

  93. 1 A. That was regarding the first modern

    2 projectiles. As regards the other projectile, here are

    3 some data regarding the modern projectile. The

    4 Croatian army in Croatia, we had documentation on that

    5 projectile, the drawings, that we could construct it,

    6 but we did not have the firing tables with us for that

    7 projectile. Let's remember that we did not have the

    8 firing tables, charts, that went with the projectile.

    9 Q. Professor, do you maintain that there are no

    10 firing tables or charts for the new projectiles? Is

    11 that what you are saying?

    12 JUDGE JORDA: In French it was very clear.

    13 MR. NOBILO: It was not quite clear in

    14 Croatian as to firing tables or charts.

    15 Q. Would you explain to us the importance of the

    16 firing tables or charts.

    17 A. We could construct the projectiles, we could

    18 manufacture them, but we did not have the firing tables

    19 and we wouldn't know what angle had to be used for the

    20 howitzer in order to fire at a specific target. We

    21 couldn't do it without the tables. In order to

    22 construct these tables, we had to calculate them. We

    23 need to have a field of fire and information about the

    24 field of fire which, at that point, Croatia did not

    25 have. It was impossible to make them. Today Croatia

  94. 1 has a firing range with the minimum amount of

    2 information that it would need, and it didn't at that

    3 time.

    4 Q. Just one moment, please. Professor, let us

    5 define more precisely what happened then and what

    6 happened later on. In 1993, that is the only year that

    7 we are interested in, did the Croatian army, according

    8 to the best of your knowledge, manufacture modern

    9 shells, and did it have the firing tables for those

    10 modern shells in 1993?

    11 A. It would be better to answer the question

    12 after having explained the other projectile.

    13 Q. Would you try? Now, why did I ask you that

    14 question? Because in your previous answer you failed

    15 to mention the part -- you didn't define the past and

    16 the present. You didn't give us dates. I know it is

    17 difficult for you to adjust to us legal men, it is

    18 different from your logics, but may we try and

    19 reconcile the two, marry the two. In 1993 --

    20 A. As I said, that at that time, that is in

    21 1993, in 1993, I said that the Croatian industry was in

    22 a position to produce those productions but did not

    23 produce so because we did not have the firing tables,

    24 and we were not able to make the calculations. We

    25 didn't have the field and we didn't have the necessary

  95. 1 instruments, everything we needed in order to measure

    2 the firing range. Because of that, we did not produce

    3 that modern projectile.

    4 However, the other projectile, the old one,

    5 the OF, of Russian make, could be bought on the black

    6 market. We had the firing tables and we had the old

    7 projectile, the OF, and we had the firing tables. With

    8 me I have those tables, which were used at that time.

    9 Q. Please continue.

    10 A. To continue, I must now introduce

    11 mathematics. In order to calculate the trajectories, I

    12 am using a modern trajectory material table. It's a

    13 model which is -- and these are your standard

    14 calculations which are found in the standard 4355 of

    15 NATO. All the explanations about this model are in my

    16 book in Chapter 9.

    17 The results, therefore, of the calculations,

    18 depend on the data that you introduce into the model.

    19 There are several data which are very significant and I

    20 have to present them here.

    21 First, there are the initial conditions for

    22 flight. I found this on page 6.024, on line 22, and

    23 6.029, line 10. There it states that it is 520 metres.

    24 That is the height of the weapon.

    25 JUDGE JORDA: You found it, Mr. Cayley? You

  96. 1 found the reference?

    2 MR. CAYLEY: It's not in this set of

    3 transcripts that I have here, but, as I stated before,

    4 there may be a difference between the French and the

    5 English. We will have to try and track it down.

    6 THE WITNESS: I have the documents here.

    7 JUDGE JORDA: You have them? Can you find

    8 them? Very well. That would facilitate the

    9 cross-examination.

    10 MR. NOBILO: Mr. President --

    11 A. 6.024.

    12 MR. NOBILO: Mr. President -- just one

    13 moment, please. If I may, Mr. President. Checking the

    14 correctness of the testimonies of the expert witness

    15 and the pages is up to the cross-examination. In this

    16 way we are using up too much time. The expert witness

    17 has made a claim. It is on page such and such. He

    18 said that and we can see whether it was correct or not

    19 during the cross-examination.

    20 JUDGE JORDA: It's a valid objection, except

    21 that -- I agree with you, Mr. Nobilo. I am only doing

    22 that because this has to do with the cross-examination

    23 as well. Mr. Cayley, you can see that the witness will

    24 accommodate you.

    25 MR. CAYLEY: I may have a different version.

  97. 1 I suspect I don't. If the witness is going to show us

    2 now a page number, fair enough. Then I have a version

    3 that I am being provided with that is different. But I

    4 disagree with my learned friend in that, clearly, the

    5 Prosecutor should actually be able to follow the

    6 proceedings, and it's not simply a matter for

    7 cross-examination, as he suggests.

    8 JUDGE JORDA: All right. We will take a

    9 decision. You continue to quote the pages and, at the

    10 time of the cross-examination, if there are any

    11 contradictions, I am not going to -- I am simply trying

    12 to facilitate things here. Since the basic objection

    13 came from the fact you remember -- that the fact that a

    14 witness could come to testify contrary to the testimony

    15 of another testimony through a transcript. I am simply

    16 trying to facilitate things and to allow things to be

    17 followed clearly and precisely. But, Mr. Nobilo, that

    18 doesn't cause me any problems. Perhaps during the

    19 cross-examination things will get straightened out. If

    20 you agree, please continue.

    21 MR. NOBILO:

    22 Q. Please continue, professor. Carry on with

    23 what you were saying, quote the pages, and during the

    24 cross-examination, if there are any problems, you can

    25 clarify matters. Thank you.

  98. 1 A. I had said that the first data was the

    2 elevation of the weapon, and I found that data on page

    3 6.024, on line 22, and 6.029, line 10. Therefore, the

    4 elevation was 520. There are different data. I took

    5 the data which was the least supportive of my thesis.

    6 The second important data has to do with the

    7 initial velocity, which is found on page 6.025, on

    8 lines 10 and 11, and the document which I showed you,

    9 that is referring to the initial velocity, which was

    10 735 metres.

    11 The next data had to do with the initial

    12 angle and the elevation, as the military people say, of

    13 the howitzer tube. We don't have that information for

    14 right now. We'll leave that question open.

    15 Then there are the weather conditions, the

    16 wind, the atmosphere, that is the air pressure, and the

    17 air temperature. On page 6.107, line 5 through line 8,

    18 there it states that there was almost no wind at all

    19 and that it was springtime, that the initial conditions

    20 corresponded to the standard atmosphere, as we say

    21 CINA.

    22 In the model we also looked at the earth's

    23 rotation, because for a howitzer of this type that

    24 rotation is influential.

    25 Then there is the elevation of the target,

  99. 1 which is on page 6.024, on line 25. It states that the

    2 elevation of the target was 310. There is also

    3 different data, according to the author. I took those

    4 that least support my thesis.

    5 Therefore, we should obtain a range of 16

    6 kilometres, which is stated on page 6.024, line 7 --

    7 6.029, also line 7, and 6.091, line 8. We should

    8 obtain the falling angle from 40 to 44 degrees, between

    9 40 and 44 degrees, which is said on pages 6.020, line

    10 13, and page 6.034, line 24 and 25. And these are the

    11 simulation results.

    12 Therefore, with me I have my portable

    13 computer next to me, and I have this model in my

    14 computer and I can simulate it for you as well. But to

    15 be more practical, I will show you the results. But,

    16 if you want, I can present them here before you or make

    17 other calculations, if that's necessary.

    18 Therefore, I'm speaking, first of all, about

    19 the more modern projectile and figure B.

    20 Q. Therefore, it is Defence Exhibit D526, page

    21 B, the page marked B.

    22 A. These are the results of a test, but it's

    23 simply to show you that the model is correct. All the

    24 data that I used as the initial data are indicated

    25 here, and you can see that you have a range that we saw

  100. 1 in the document from the former Yugoslavia. Therefore,

    2 the model is good.

    3 Q. This refers to the new projectile, does it

    4 not?

    5 A. I'm speaking about that projectile, and

    6 that's indicated here, M76. We are speaking about this

    7 projectile from the former Yugoslav army for which we

    8 did not have the firing tables. We didn't have them

    9 then; we don't have them now; I never saw them.

    10 We will now simulate the results that we

    11 need. I had said that in the model, we did not know

    12 the initial angle. I looked for the initial angle by

    13 making several calculations in order to find the

    14 falling angle which would be the least favourable,

    15 unfavourable, and that would be 44 degrees. Here are

    16 the results I got with the elevation angle of 26.3

    17 degrees. I had that angle, the angle of impact, but I

    18 did not then have the range, which was 15 kilometres.

    19 I looked for the angle and the elevation

    20 which would give the range desired of 16 kilometres.

    21 This is document C. Here we have the range of 16

    22 kilometres, but we do not at all have the 44-degree

    23 angle of fall but 48, and that was a very significant

    24 difference.

    25 Q. Just one moment, please, Professor. Let us

  101. 1 clarify some points. From where do you get the data

    2 that the angle of impact, when the shell falls, must be

    3 a 40-degree to 44-degree angle? Who determined that

    4 fact?

    5 A. I had said that the angle of fall should be

    6 between 40 and 44 degrees. That is on page 6.020, line

    7 13, and 6.034, lines 24 and 25, let me repeat, pages in

    8 the text of Witness W.

    9 Q. Thank you. Your calculations, which can be

    10 seen on page C, indicate that this angle of impact

    11 should be greater, 48.1 degrees, is that correct, for

    12 it to have a range of at least 16 kilometres?

    13 A. Yes, that's correct. That's what I said.

    14 Q. Please continue.

    15 A. In order to be complete, I sought the

    16 possibility of having the 16-kilometre range and the

    17 44-degree angle, it's possible, but with a very, very

    18 strong wind. Therefore, you would have to have a wind

    19 which would be 13.5 metres per second, and it had been

    20 said that there was no wind. That's document D.

    21 Q. Tell us, please, Professor, if we were to

    22 satisfy the conditions that Witness W said, that there

    23 was no wind, and the conditions that the angle of

    24 impact was up to 44 degrees, what would be the maximum

    25 range with the modern version of the shell that the

  102. 1 Croatian army did not possess, that is to say, the

    2 better, the more sophisticated one?

    3 A. That is document F, and here you can see that

    4 the range is 15 kilometres.

    5 Q. And that is insufficient to reach Zenica; is

    6 that correct?

    7 A. You said that you would've had to have a

    8 16-kilometre range, and here it's 15.

    9 Q. Therefore, according to the Prosecution

    10 witness, in order to satisfy the angle of fall, which

    11 he maintains, according to the traces, that it could

    12 not reach a range of 16 kilometres, it would be lacking

    13 one kilometre; is that your conclusion?

    14 A. I repeat, what I'm showing to you here are

    15 the calculations. These are the mathematics. This is

    16 not my opinion but mathematics, the preciseness.

    17 Q. The next question, do your calculations

    18 indicate, we would like to have the text, not only

    19 facts and figures and diagrams, do they show that if we

    20 were to respect the fact, as ascertained by the

    21 Prosecution witness, that the angle was 44 degrees and

    22 that the howitzer then, even with a modern shell, would

    23 not be able to reach further than 15 kilometres?

    24 A. Yes, those are the results.

    25 Q. Thank you. Professor, please continue.

  103. 1 A. Therefore, I will now show you the same

    2 calculation with the other shell, OF, that is, the

    3 Russian shell which was used and is still being used by

    4 the Croatian army. We'll start with document G.

    5 JUDGE JORDA: Usher, please stay near the

    6 witness because he needs you, and I want the tables to

    7 be visible in the public gallery.

    8 A. First, I would like to say something,

    9 something very important. The OF Russian shell, the

    10 Croatian army does not use with that charge, with the

    11 725-metre charge, and this is because the shell, the

    12 Russian shell, has a maximum velocity of 690 metres per

    13 second. That's the initial velocity, and we have the

    14 firing tables for that velocity.

    15 Nonetheless, I did calculations for the other

    16 velocity because it is true that the Croatian army

    17 could or would have been able to add powder in order to

    18 reach that velocity, but I repeat that in that case, it

    19 did not have the firing tables for that initial

    20 velocity and could not use them.

    21 Therefore, I will now present to you the

    22 calculations that the Croatian army could not use

    23 because it did not have the firing tables for that

    24 velocity. Even if it had done that, it would have had

    25 a 16-kilometre range. That is what one sees on

  104. 1 document G. Under normal conditions, with an elevation

    2 O, with no wind, et cetera, those are normal

    3 conditions.

    4 With this charge, which covered the 735

    5 metres under the conditions with a target elevation

    6 that we spoke about, on document I, you can see that

    7 one could reach 16 kilometres but with an angle of fall

    8 of 54 degrees or even more. That is much greater than

    9 what had been said in the text or else --

    10 Q. Excuse me, sir. I apologise for interrupting

    11 you, but I would like us to go back to document G which

    12 determines a rather large angle of impact of 60.5

    13 degrees which is considerably, significantly higher

    14 than 44 degrees as was stated by the witness?

    15 A. The document that you see is really a test in

    16 order to see what the maximum range of that projectile

    17 would be. These are not the conditions that are of

    18 interest to us, that is, the conditions of the

    19 elevation and of the target elevations. The following

    20 document gives us the elevation of the weapon and the

    21 elevation of the target which is of interest to us.

    22 This is the document which shows you the

    23 520-metre elevation with an elevation of 320, and if

    24 you fire over 16 kilometres, you have a much greater

    25 angle, that is, you have a 53-degree angle of fall or,

  105. 1 more precisely, 53.4 degrees, or else if you want to

    2 have this 44-degree angle of fall on document H (sic),

    3 you can see that the range is 14 kilometres.

    4 JUDGE JORDA: I think it's "N," is it not,

    5 not "H," but "N"?

    6 A. Excuse me, yes, it was "N." Therefore, I can

    7 declare simply that what Witness W said is wrong from a

    8 scientific point of view.

    9 JUDGE JORDA: Excuse me, Mr. Jankovic --

    10 A. As a professor, I say that.

    11 JUDGE JORDA: Say that you don't agree. Say

    12 that you don't agree.

    13 A. I say that science does not agree.

    14 JUDGE JORDA: Well, the Judges will decide.

    15 A. That is how we speak in our profession.

    16 JUDGE JORDA: Let me give you a sense. Your

    17 calculations do not match those of the witness for the

    18 Prosecution.

    19 MR. NOBILO:

    20 Q. I would like things to be quite clear because

    21 this is an area which is very far from us legal men.

    22 We have, of course, learned something about ballistics

    23 and firing power from rifles, but I'm sure none of us

    24 are well-versed in your field.

    25 So with the Russian shell, the kind the

  106. 1 Croatian army didn't use, and then we can suppose that

    2 the HVO didn't use it because it did not have the

    3 firing charts, tables, if we wanted to satisfy the

    4 angle of impact which was seen by the Prosecution

    5 witness, we would be one kilometre short; is that

    6 correct?

    7 A. That's correct.

    8 Q. If, with the shells for which firing tables

    9 existed which the Croatian army did possess and the HVO

    10 did possess, we wanted to satisfy the angle of

    11 impact --

    12 A. No, because the Croatian army did not have

    13 the firing tables with the 735 velocity. With what it

    14 had and with what it used, it could not reach, not at

    15 all, could not reach 16 kilometres, in no case. The

    16 maximum range of the Croatian army was 15 kilometres

    17 and 300 metres, that was said here, and I have firing

    18 tables. I didn't make calculations. It's not

    19 necessary. They were original documents that could be

    20 used.

    21 Q. Therefore, on document N, we have the

    22 velocity of the fire of the shell at 735 metres per

    23 second.

    24 A. I did these calculations because it is

    25 possible that the Croatian army could add powder --

  107. 1 JUDGE JORDA: Yes, you said that already.

    2 You said that already. I think it's very clear. Let's

    3 try to summarise. You'll never reach 16 kilometres

    4 with the thesis of the witness. That's very simple.

    5 Very well.

    6 Mr. Nobilo, please continue with your

    7 demonstration.

    8 MR. NOBILO: I have almost finished, but I

    9 have one more question to ask the witness.

    10 Q. Witness W spoke about additional ammunition

    11 charging, additional charging, and that if you added

    12 additional powder, the range could be longer and reach

    13 16 kilometres. What can you say on that score?

    14 A. As far as I know, one always has to look at

    15 documentation when one wants to study technical

    16 problems. This howitzer is called, in Russian, "pola

    17 puni"; in English, it's "full"; in French, I would say

    18 "complet." It's the powder, as Witness W said, 3.8

    19 kilograms, and that was a piece, one piece.

    20 There are different mixtures of powders, but

    21 for the artillery people, that was the type of powder

    22 that they used, and that's how you reach the initial

    23 velocity of 690. This charge, this powder, which

    24 determines velocity that was used by the former

    25 Yugoslav army, I never saw, but it is most likely

  108. 1 possible to add powder, that is, add powder to this

    2 full charge, in order to achieve that. But these are

    3 technical problems, and I'm not prepared to answer

    4 that. You would have to look at the documents and make

    5 calculations, et cetera.

    6 JUDGE JORDA: Very well. Mr. Nobilo?

    7 MR. NOBILO:

    8 Q. But according to your experience, did the

    9 Croatian army, with whom you cooperated technologically

    10 speaking, did it construct and manufacture shells with

    11 some extra charge?

    12 A. I, myself, constructed a 122-millimetre

    13 projectile with a great range which is one of the

    14 projectiles that we called base bleed, and my

    15 colleagues gave it the necessary charge in order to

    16 reach the velocity that's used, because now we have the

    17 instruments, we have the firing ranges, and we have a

    18 projectile which is of much greater range.

    19 Q. Tell us, please, when did you do this? What

    20 year was that?

    21 A. The first weapon was prepared in -- we flew

    22 it in 1997, the spring, I think it was in May.

    23 Q. What about 1993, did the Croatian army have

    24 any of the things you have just mentioned?

    25 A. That was impossible. I knew then what I know

  109. 1 now, but we didn't have the technical assets.

    2 Q. These calculations, the software that you

    3 used in calculating the targets and ranges, are they

    4 standard?

    5 A. As I said to you, these are the

    6 calculations. I gave you the name of the model, and I

    7 told you that it's standard and it's found, that is,

    8 the reference is found, it's standard 4355. If you

    9 want, I have these calculations in my portable

    10 computer. I have my book. There's a chapter on the

    11 methods, et cetera.

    12 Q. That is the NATO reference, is it?

    13 A. Yes.

    14 MR. NOBILO: We have thus completed, and we

    15 would like to offer this as an exhibit, Exhibit D526.

    16 Thank you.

    17 JUDGE JORDA: Mr. Cayley?

    18 MR. CAYLEY: I'd like to reserve the position

    19 of the Prosecutor on this until we have at least an

    20 English translation of the contents of this red file,

    21 and as we stated --

    22 JUDGE JORDA: Very well.

    23 MR. CAYLEY: -- we would like full copies of

    24 the documents that have been referred to and not just

    25 these extracts that appear here, please.

  110. 1 JUDGE JORDA: It's difficult to delay the

    2 cross-examination, if we have to do that for each

    3 witness. Personally, it seems difficult to me. We're

    4 talking about calculations here. You can contradict

    5 what's been said. I, myself, asked that the entire

    6 work be given to us, but understand me well here.

    7 We're talking about calculations that are very complex

    8 by the artillery people, but thanks to the witness,

    9 these have been made more simple to understand. But

    10 the major point of the direct examination dealt with

    11 the trajectory, that is, can one reach 16 kilometres

    12 starting with the assumptions expressed by the various

    13 witnesses that were your witnesses?

    14 I think we're going to take a break. We will

    15 resume at 5.00, and then you can do your

    16 cross-examination. If, later, in the coming weeks and

    17 once all these translations have been provided and you

    18 have a problem, you can submit a written brief, but in

    19 my opinion, we cannot delay the cross-examination.

    20 Please understand what I'm saying. This is not the

    21 same problem we ran into this morning. This is a

    22 problem in which the direct examination dealt only with

    23 trajectory issues and calculations. I think you have

    24 to refer back to trajectory problems and calculations.

    25 Otherwise, we will never finish. Do you understand

  111. 1 what I mean? You need to have a calculator in order to

    2 do the calculations, and that will facilitate the

    3 calculations for you.

    4 MR. CAYLEY: As you know, I'm not a

    5 ballistics expert. I'm not suggesting that we delay

    6 the cross-examination. I can commence. However, in

    7 respect of all of the references that have been made to

    8 the transcript, which I genuinely cannot locate in the

    9 transcript that I have, if I cannot locate those by

    10 5.00, and I don't think I'm going to be able to go

    11 through about 30 references in 25 minutes, then I would

    12 like to continue with the cross-examination on the

    13 balance of that tomorrow.

    14 JUDGE JORDA: Mr. Cayley, Mr. Cayley, subject

    15 to what the registrar is going to tell me, it seems to

    16 me that this discussion about the transcripts seems a

    17 little bit odd. In one of the most modern courts in

    18 the world where we have transcripts right in front of

    19 us, I don't think it should be very difficult. The

    20 witness quoted four, five, six things. You simply have

    21 to make the correspondence between the transcripts that

    22 the witness read in French with the English transcripts

    23 that you have. If there's a contradiction, you can

    24 point it out. If you like, I can give you a half

    25 hour. We can resume at ten after five so that you can

  112. 1 have the time. I had really foreseen this objection.

    2 That's why I asked Mr. Nobilo to agree to our wasting a

    3 little bit of time first.

    4 Let me make a suggestion. We'll take a

    5 30-minute break. It won't be a break for you, I

    6 understand, and the registrar can be available to you

    7 in order to make the correlation between the English

    8 and French transcripts. Therefore, Mr. Dubuisson,

    9 there won't be any --

    10 THE WITNESS: Can I say something? These are

    11 quotations from the English transcripts and I have

    12 them. I read them in English.

    13 JUDGE JORDA: Very well.

    14 THE WITNESS: I have the test here. I can

    15 make it available to you.

    16 JUDGE JORDA: Mr. Hayman, do you want to make

    17 a statement?

    18 MR. HAYMAN: I have checked the citations

    19 during the witness's testimony, and I have found all

    20 but one, in the English, unofficial transcript.

    21 They're there. I found them.

    22 JUDGE JORDA: Very well. Mr. Cayley, you've

    23 got 30 minutes and, with a calculator, you have the

    24 transcripts and then we can conduct the

    25 cross-examination.

  113. 1 --- Recess taken at 4.40 p.m.

    2 --- On resuming at 5.15 p.m.

    3 JUDGE JORDA: We can resume the hearing now,

    4 please. Have the witness brought in and the accused.

    5 (The accused entered court)

    6 JUDGE JORDA: Mr. Cayley, please proceed.

    7 MR. CAYLEY: Thank you, Mr. President.

    8 Cross-examined by Mr. Cayley:

    9 Q. Good afternoon, Professor. My name is

    10 Cayley. I'm from the Office of the Prosecutor. These

    11 are my colleagues, Mr. Harmon and Mr. Kehoe.

    12 Now, the first question that I have for you

    13 is, what type of weapon fired from a position that day

    14 onto Zenica? What type of 122-millimetre fired that

    15 day?

    16 A. I listened to the Croatian translation and

    17 did not really understand your question, because in

    18 Croatian, I was asked what weapon was launched from the

    19 position. I understood "from the position." I

    20 understood from the text, that's something I don't know

    21 about, but when I read the text, speaking about a

    22 122-millimetre howitzer and explosive projectiles, and

    23 I said that there are two types of this projectile.

    24 Q. You obviously didn't understand my question,

    25 Professor. Listen very carefully to what I'm saying.

  114. 1 I will speak slowly, and directly answer the question

    2 if you can. If you cannot answer the question, simply

    3 say, "I don't know," and that will suffice.

    4 The question that I'm asking you is what type

    5 of 122-millimetre howitzer fired on the 18th April,

    6 1993?

    7 A. I do not know. I assumed according to the

    8 text and according to what I know, that is to say, in

    9 terms of what the Croatian army has, that this is a

    10 122-millimetre howitzer, D30.

    11 Q. You said that you didn't know, and the fact

    12 is, Professor, that unless you were there, you wouldn't

    13 know, would you?

    14 A. Yes.

    15 Q. There are two kinds of D30s that are relevant

    16 for these proceedings. There is a D30-A and a D30-J,

    17 isn't there, Professor?

    18 A. Yes. From a ballistics point of view, they

    19 have the same characteristics, though.

    20 Q. The D30-J, though, Professor, is a Yugoslav

    21 variant, isn't it, of the D30-A, and it has a longer

    22 range, doesn't it, Professor?

    23 A. I'm not aware of that.

    24 Q. Well, Professor, let me show you my first

    25 exhibit, which is an extract from Jane's, a world

  115. 1 renowned publication on weapon systems, if the witness

    2 can be shown this exhibit.

    3 THE REGISTRAR: This is document 564.

    4 MR. CAYLEY:

    5 Q. Now, Professor, this is the RH Alan

    6 122-millimetre howitzer, D30, and I would like you to

    7 go straight to the second page of this document, and

    8 you will see --

    9 JUDGE JORDA: Just a moment, Mr. Cayley.

    10 Excuse me. Are you talking about page 1 or page 2?

    11 MR. CAYLEY: Page 2, Mr. President, which,

    12 midway down the page, says "Czech Republic and

    13 Slovakia."

    14 JUDGE JORDA: Yes. All right. Thank you.

    15 Would you put this on the ELMO, please?

    16 MR. CAYLEY:

    17 Q. Now, you will see that the maximum range for

    18 this particular weapon firing base bleed is 20.000

    19 metres, firing an M76 projectile is 17.133 metres, and

    20 firing --

    21 JUDGE JORDA: Is this listed under

    22 "Features," "Characteristics"?

    23 MR. CAYLEY: It's listed on the second page

    24 of the document under --

    25 JUDGE JORDA: Yes.

  116. 1 MR. CAYLEY: -- "Maximum Range."

    2 JUDGE JORDA: So it's 21 miles because I

    3 heard a translation of -- oh, 21.000, and I heard

    4 21.000 instead of 20.000. Is it 21.000 or 20.000?

    5 MR. CAYLEY: Can you move this document down

    6 on the ELMO? No, no.

    7 MR. NOBILO: Mr. President, the witness spoke

    8 in French. He does know some English, but I personally

    9 do not know whether it is sufficient. It would be a

    10 good thing to have this text read so that the text can

    11 be translated into French and Croatian so that my

    12 defendant could also understand.

    13 JUDGE JORDA: He can't have the translation

    14 in French?

    15 THE WITNESS: It isn't necessary. I

    16 understand it well enough.

    17 JUDGE JORDA: All right. Let me go back to

    18 my question now, it is really not a translation

    19 question, is it 21 -- I see. It's 21.000 metres.

    20 You're talking about the gun at the top of the page; is

    21 that correct?

    22 MR. CAYLEY: That's correct, Mr. President.

    23 JUDGE JORDA: So it's the D30 HR M94. That's

    24 the gun we're talking about.

    25 MR. CAYLEY: That's right.

  117. 1 JUDGE JORDA: All right. Continue.

    2 MR. CAYLEY:

    3 Q. Now, the maximum range of this weapon, and

    4 this, I know, is a Croatian variant of the weapon, is

    5 15.300 metres with a TF462 projectile and full charge,

    6 17.133 metres with an M76 projectile, and 20.000 metres

    7 with the M95 base bleed projectile.

    8 Now, if I can show you the next exhibit

    9 before I ask you a question, so that --

    10 MR. CAYLEY: What is the number of the next

    11 exhibit, Mr. Registrar?

    12 THE REGISTRAR: The next exhibit will be

    13 565.

    14 MR. CAYLEY: Again, I apologise,

    15 Mr. President, this is not translated into French or

    16 Croatian.

    17 JUDGE JORDA: We are talking about numbers

    18 for the time being, so I don't have too many problems

    19 with those.

    20 MR. CAYLEY:

    21 Q. Now, this is the standard D30J Yugoslav

    22 variance, and if I could just read. The maximum range

    23 when firing a standard high explosive projectile with a

    24 full charge is given as 17.300 metres. The D30J can

    25 fire the full family of ammunition developed for the

  118. 1 Russian D30. The Yugoslavs had under development a M82

    2 heat projectile. I don't need to read the rest of

    3 that. The Yugoslav and 76 projectile has a maximum

    4 range of 17.300 metres.

    5 Now, professor, you would agree with me that

    6 the Croatian 122-millimetre variance, the D30 HR M94

    7 has a maximum range of 20.000 metres, and the D30J

    8 122-millimetre howitzer, has a maximum range of 17.300

    9 metres. Do you agree with me there?

    10 MR. HAYMAN: Mr. President, could we have a

    11 date on these documents that counsel is showing the

    12 witness? There is no date legible on them. Where do

    13 they come from? What's the date?

    14 JUDGE JORDA: Of course. I've frequently

    15 asked for the sources of documents and I will not --

    16 and I won't fail to ask the same question of the

    17 Prosecution.

    18 Is this a recent version of the work?

    19 MR. CAYLEY: This is a recent publication of

    20 Jane's. I do not know the date off the top of my

    21 head. I will find out. Placing the D30J howitzer in

    22 time, this is a JNA variant. This is a gun that was

    23 designed before the breakup of the former Yugoslavia,

    24 as far as I understand. I will find out. This was not

    25 something developed by the Croatian army, it was

  119. 1 developed by the JNA prior to 1983, Your Honours.

    2 JUDGE JORDA: All right. Whenever you like,

    3 but -- not so that the Defence can conduct its

    4 re-direct, but, perhaps, in the final arguments it

    5 might want to contest what you've said. Therefore, you

    6 should give the exact title, the edition, and I thank

    7 you in advance for doing that.

    8 MR. CAYLEY:

    9 Q. Sorry, professor, the D30J is a JNA variance

    10 of the D30. Could you please answer if you don't --

    11 A. Yes, I can answer that question. First of

    12 all, the Croatian howitzer is the continuation of the

    13 Yugoslav one, because the Yugoslav howitzer was

    14 manufactured in Travnik. There were many Croatians

    15 who worked there. They came to Croatia and they

    16 continued --

    17 Q. Professor, I am sorry to interrupt you, but I

    18 am short of time. Although it's an interesting

    19 explanation of where it's manufactured, can you simply

    20 directly answer my question. Is the D30J a JNA variant

    21 of the D30, 122 millimetre, and was it manufactured in

    22 the former Yugoslavia prior to 1993?

    23 JUDGE JORDA: Those are two questions. First

    24 question: The D30J -- I believe it's D30J? Is that

    25 right? Yes.

  120. 1 THE WITNESS: If I've understood the question

    2 right, the difference between the Croatian howitzer and

    3 the Yugoslav howitzer? Is that what it was?

    4 JUDGE JORDA: I think the Prosecution is

    5 asking a very simple question. Would you reformulate

    6 your question, Mr. Cayley, but one question only,

    7 that's the first part of the question.

    8 MR. CAYLEY: My apologies to the Court. I am

    9 watching the clock.

    10 Q. Can you answer this question, please, yes or

    11 no. Is the D30J the Yugoslav variant of the D30, 122

    12 millimetre howitzer?

    13 A. Yes.

    14 Q. I'm sorry, this sounds terribly basic,

    15 professor, for a man of your knowledge, but we are not

    16 experts. Was that weapon manufactured in the former

    17 Yugoslavia prior to 1993?

    18 A. The howitzer D30J was a -- it was a howitzer

    19 of the former Yugoslavia.

    20 Q. The JNA was equipped with this piece of

    21 artillery?

    22 A. I think that it would have been normal for it

    23 to have been.

    24 Q. And this extract from Jane's artillery

    25 confirms that the maximum range of the D30J was 17.300

  121. 1 metres. Do you agree with that?

    2 A. We can go to the essential on the range, and

    3 I can give you the answer. This -- introduction is not

    4 necessary. The 20-kilometre range that you see here,

    5 this is the projectile range that I constructed. I did

    6 it. I told you that the first piece was flown in 1997,

    7 and it is the model --

    8 Q. Professor, excuse me.

    9 JUDGE JORDA: Just a moment, Mr. Cayley. Let

    10 the witness -- you asked a question, let him answer.

    11 THE WITNESS: We decided to construct it in

    12 1995.

    13 JUDGE JORDA: Yes. And the name?

    14 THE WITNESS: Shall I continue?

    15 JUDGE JORDA: Yes, but briefly. You asked a

    16 question, you answered, you made a short commentary,

    17 but then we give the floor to the -- there is a

    18 projectile that you yourself constructed in 1995, and

    19 whose name is?

    20 THE WITNESS: M95, because we decided to

    21 construct it that year.

    22 MR. CAYLEY:

    23 Q. Do you agree with the Jane's article that

    24 states that the maximum range of the D30J was 17.300

    25 metres using a M76 projectile?

  122. 1 A. I am familiar with those data, but those are

    2 commercial data, and for us technicians it was not

    3 relevant, because I have shown you the official

    4 document of the army. It is more sure and older than

    5 stated in law. According to the various prospectuses

    6 in commercial brochures, there are data which are

    7 somewhat questionable, and for me it's not precise.

    8 What I showed you in the document from Yugoslavia is

    9 the one which is -- are the data that I consider to be

    10 correct. And that's what I know.

    11 Q. Are you saying that Jane's, a world respected

    12 publication on military weapon systems, is wrong?

    13 A. I am saying that it's different from the

    14 original document, and for me the original document is

    15 the one that I use.

    16 Q. Would you please, professor, would you please

    17 answer the question, because you are in disagreement

    18 with the figure that I am quoting to you. Are you

    19 stating that Jane's, a world respected organisation on

    20 information about military weapon systems, is wrong,

    21 that the figure that they have quoted for the maximum

    22 range of a D30J is incorrect?

    23 A. I can repeat my answer --

    24 JUDGE JORDA: No, no, no. There is no need

    25 to do so.

  123. 1 THE WITNESS: Or I can add. Even if I had

    2 had that result, if I had taken as an initial data from

    3 my -- from a document, nothing would have changed.

    4 MR. CAYLEY:

    5 Q. Professor, the range that a shell flies

    6 through the air depends on what type of shell it is,

    7 doesn't it? So different ammunition flies a different

    8 distance?

    9 A. Yes.

    10 Q. What type of shells landed in Zenica on the

    11 18th of April, 1993? What type of projectile?

    12 A. I am not the one who was on site. The only

    13 thing I can tell you is that I read the document, I

    14 read the text, and in the document they speak about the

    15 explosive -- the explosive of 122 millimetres, and

    16 that's all can I say, and in order not to repeat

    17 everything I have already said.

    18 Q. Please bear with me, professor. I'll move as

    19 quickly as I can. It would affect the range, wouldn't

    20 it, the type of shell that fell in Zenica?

    21 A. Yes, of course.

    22 Q. Some shells go further than other shells,

    23 don't they, professor? Some shells have the ability to

    24 travel a greater distance?

    25 A. Yes, of course.

  124. 1 Q. You have no idea what type of shell fell in

    2 Zenica on the 18th of April, do you, professor?

    3 A. Only what I read in the -- in that document.

    4 Q. You only read that it was 122-millimetre

    5 shell, didn't you?

    6 A. No. I read that the explosive shell -- and I

    7 said that there were two explosives. I am talking

    8 about the two explosives. There was the two explosive

    9 shells.

    10 Q. Now, you spoke about the difference in range

    11 between old and modern shells.

    12 A. Yes.

    13 Q. You stated that modern shells had the

    14 capacity to travel a further distance than old shells?

    15 A. Yes.

    16 Q. What type of ammunition were the HVO using in

    17 Bosnia?

    18 A. I don't know anything about the HVO in

    19 Bosnia. I am a professor in Zagreb and had contacts

    20 with the Croatian army, and everything that I said is

    21 relevant for the Croatian army.

    22 Q. So you cannot tell the Judges anything about

    23 the type of ammunition that was fired on the 18th of

    24 April, 1993?

    25 A. Only what I read in those documents.

  125. 1 Q. Professor, did you, in the process of your

    2 calculations, travel to the site in Zenica to assess

    3 the geography and see the impact sites?

    4 A. I did not need to. Not at all.

    5 Q. Would you agree with me that the best

    6 witnesses in respect of an incident such as this are

    7 individuals who were present at the time of this

    8 shelling and who gave eyewitness accounts to the

    9 Court?

    10 A. I am speaking about mathematics here, about

    11 calculations. I don't know what I could say about

    12 witnesses who were on site. I don't know anything

    13 about that.

    14 Q. You didn't answer my question. Do you not

    15 believe that experts who are on site in Zenica, on the

    16 day of this incident, military personnel from all over

    17 the world, can give a better insight to the Judges of

    18 what actually happened?

    19 A. What I read in this material, these texts,

    20 are things that I don't agree with. That's the only

    21 thing I can say. I can't give you an opinion about

    22 something I don't know. I don't know.

    23 Q. Which witnesses did you have the occasion to

    24 read make when you made your study of the Zenica

    25 shelling?

  126. 1 A. I read the text of the Major, Witness V and

    2 Witness W.

    3 Q. Professor, have you ever been involved in the

    4 process of crater analysis in your career?

    5 A. Yes, very frequently. I looked at craters

    6 very often on the firing ranges.

    7 Q. Would you agree with me that crater analysis

    8 can provide a good indication of the type of

    9 projectile, the calibre of the projectile, and the

    10 bearing, the direction from which the projectile was

    11 fired?

    12 A. Yes, I have read many things about that and I

    13 prepared myself to reach a similar conclusion. The

    14 determination of the calibre and direction and the

    15 angle of fall starting from a crater is something I

    16 have never seen discussed in scientific or technical

    17 literature. Therefore, this is not a problem which is

    18 resolved in advance, but rather problems that

    19 technicians and people have to resolve on site with the

    20 knowledge that they have. Therefore, in practice,

    21 through tests on the firing ranges, we record what the

    22 effects are, that is, what is the crater produced by a

    23 given projectile. We know the projectile that we are

    24 using to fire, and through tests we can note what

    25 crater it produces in the firing range, and we consider

  127. 1 that to be the performance of that projectile of that

    2 object.

    3 As regards the contrary, that's a very great

    4 problem for which I do not have a solution, but it must

    5 be said that when we look at the fragments and the

    6 pieces of projectile, we can recognise the projectile

    7 that fell ordinarily through large pieces, that is,

    8 that very often, the rocket remains in one piece and

    9 that the base, the base of the projectile, produces

    10 large pieces, and one can recognise those pieces as

    11 parts of projectiles. That's possible and that's done,

    12 but you have to be careful here as well because the

    13 same rocket can use several shells.

    14 For instance, the rocket RGM, there's a

    15 similar Yugoslav version, that rocket uses

    16 122-millimetres, that's the howitzer that we're

    17 speaking about. It also uses 130 guns and 152 howitzer

    18 guns, therefore, all three, that's one thing, and one

    19 has to be careful.

    20 MR. HAYMAN: Professor, let me just

    21 interrupt.

    22 Mr. President, at the beginning of this

    23 paragraph, I think the word "inverse" was translated as

    24 "contrary." In the French, I'm pretty sure it was

    25 inverse. The professor was talking about whether you

  128. 1 could reason in both directions, that is, from a known

    2 shell to a characteristic, but then he commented on the

    3 inverse, from the characteristic back to the shell. In

    4 the English translation, it was translated as "the

    5 contrary." I think it's "the inverse."

    6 THE INTERPRETER: Converse.

    7 MR. HAYMAN: Inverse or converse.

    8 THE INTERPRETER: Converse.

    9 MR. HAYMAN: It was translated as "the

    10 contrary."

    11 MR. CAYLEY: I have to say, Mr. President, I

    12 didn't spot that. All I've spotted is that Mr. Hayman

    13 and I have been confused on the transcript, and it's

    14 now referring to Mr. Cayley as Mr. Hayman, but that's a

    15 small point.

    16 JUDGE JORDA: Well, the inverse or converse?

    17 MR. CAYLEY: I'll ask the witness.

    18 JUDGE JORDA: Let's do it again. Do you want

    19 to make a correction? Converse, inverse?

    20 A. May I answer?

    21 JUDGE JORDA: Yes, specify, please.

    22 A. To be very precise, for a given projectile,

    23 the tests determine the crater, and we know that the

    24 projectile produces this or that crater, and that

    25 crater could have been produced by another projectile,

  129. 1 but we will never go from a crater to say what crater

    2 it was that produced it, but we know that a projectile

    3 produced the crater.

    4 JUDGE JORDA: All right. Let's move along,

    5 Mr. Cayley.

    6 MR. CAYLEY:

    7 Q. Professor, you studied the testimony of Major

    8 Baggesen, and would you agree with me that he assessed

    9 the direction of fire as 270 degrees?

    10 A. Well, I can't answer that, and I'll explain

    11 why. Whenever I look at a crater, I look at the earth,

    12 I don't look at the crater on an asphalt surface. We

    13 don't do that in technical studies. I have never seen

    14 craters of this type, and I can't answer that

    15 question. And the photos that I saw were unusable.

    16 They were not oriented in such a way that one could say

    17 whatever.

    18 Q. Photographs can only be used for illustrative

    19 purposes, can't they, Professor? You cannot calculate

    20 range and bearing from a photograph, can you? It's

    21 very difficult.

    22 A. I didn't understand what you said. I said

    23 that, according to the copies of the photographs that I

    24 looked at, I can't say anything about the direction on

    25 asphalt, and especially because, in practice, I have

  130. 1 never seen a crater produced on asphalt.

    2 JUDGE JORDA: If you prefer to speak in your

    3 own language, of course, Professor, you can, because

    4 you seem to say that you don't understand what

    5 Mr. Cayley is saying, and I'm very sensitive to the

    6 fact that you're speaking in French. Perhaps it would

    7 be better for you to speak in your own language, and

    8 then the interpreters will interpret, but you can do as

    9 you like. I'm only making a comment to try to

    10 facilitate things, if you say you didn't understand

    11 what you were asked.

    12 THE WITNESS: It's to understand the

    13 question. It's not a question of the answer.

    14 JUDGE JORDA: No, no, I understand, but

    15 perhaps if you were to keep your answers --

    16 THE WITNESS: There were many technical

    17 terms. The interpretation sometimes takes a little

    18 longer to come out. That's all. I'm only trying to

    19 understand the question well.

    20 JUDGE JORDA: All right. Do as you like. Do

    21 as you like.

    22 Mr. Nobilo?

    23 MR. NOBILO: I just wish to say the

    24 following: We talked to the witness, and he said that

    25 he wanted to answer in French, and the Defence thought

  131. 1 that this was necessary, and this is obviously so.

    2 With all due respect to the interpreters, who

    3 do a splendid job as far as legal terms are concerned,

    4 but I must say that the translation into Croatian is

    5 not perfectly clear, so it's important for you, as the

    6 Presiding Judge, to get it all right in French, and if

    7 the Defence doesn't get it all right in Croatian, it's

    8 of lesser importance.

    9 JUDGE JORDA: All right. Continue.

    10 MR. CAYLEY:

    11 Q. Professor, it is far easier to make an

    12 assessment from a crater on range and bearing if you

    13 are actually present, compared to purely using

    14 photographic material; do you agree with that?

    15 A. Excuse me. You said two things, that you

    16 want to make an evaluation on the basis of a crater, an

    17 evaluation of the range and the direction. The first

    18 question is not possible to answer. One cannot

    19 evaluate the range on the basis of the crater. I don't

    20 believe one can. That's my opinion.

    21 Q. You misunderstood my question, Professor --

    22 A. And the second question that you asked --

    23 JUDGE JORDA: Excuse me for interrupting.

    24 You didn't understand the question. We want to move

    25 things forward. You see, there is a comprehension

  132. 1 problem here. Prosecution counsel is asking you

    2 whether it's easier to make an evaluation from a

    3 photograph or from on-site observations. That's the

    4 question.

    5 A. As I said to you, I had to understand the

    6 translation properly.

    7 MR. NOBILO: Yes, Mr. President, exactly, but

    8 he also added the range and the direction, and then the

    9 professor said that the range cannot be ascertained on

    10 the basis of the crater at all, and probably he's going

    11 to continue now.

    12 JUDGE JORDA: Mr. Nobilo, first let's try to

    13 understand the questions so that we can understand the

    14 answers better. Please do not give an additional

    15 interpretation of what your witness is saying. He's

    16 big enough to know what he has to say.

    17 All right. Ask your question again,

    18 Mr. Cayley.

    19 MR. CAYLEY: We'll break it down and put it

    20 in a more straightforward fashion.

    21 Q. In terms of crater analysis, Professor, is it

    22 easier to make observations of a crater on the site or

    23 from photographic material?

    24 A. On-site.

    25 Q. Now, you studied the testimony of Major

  133. 1 Baggesen, didn't you?

    2 A. Yes.

    3 Q. You would agree with me that he came to the

    4 conclusion that the angle of fire was 270 degrees.

    5 That was his testimony, wasn't it, Professor?

    6 A. Yes. I read that.

    7 Q. He also assessed the size of the artillery

    8 shell as being a 122-millimetre shell, didn't he?

    9 A. I don't remember.

    10 Q. Let me remind you. Again, these transcript

    11 references may not be correct because I, apparently

    12 having spoken to my learned friend, Mr. Hayman, have a

    13 slightly different edition than he. On page

    14 1.939: "We discussed and we concluded that it had to

    15 be medium artillery, that is, 122-millimetre

    16 artillery."

    17 Do you recall reading that, Professor?

    18 A. No. I had the material starting with page

    19 2.112.

    20 Q. So you didn't consider the

    21 examination-in-chief of Major Baggesen in giving your

    22 presentation today to the Court?

    23 A. I prepared starting from page 2.112.

    24 Q. Would it surprise you to know, Professor,

    25 that you don't have all of Major Baggesen's testimony?

  134. 1 A. Well, I don't know.

    2 Q. Do you not think you would have been able to

    3 give better observations to the Court if you had had

    4 the complete transcript of Major Baggesen's testimony

    5 about the Zenica shelling?

    6 A. I've given my opinion based on what I read.

    7 I didn't need anything else.

    8 Q. So you're stating to the Judges that you

    9 believe that you can give your expert opinion on the

    10 incomplete testimony of an expert eyewitness to the

    11 shelling of Zenica?

    12 A. I don't know how to answer that.

    13 MR. NOBILO: Mr. President, the witness has

    14 answered this, and now repeating these questions makes

    15 no sense. If the Prosecutor wishes to do so, he can

    16 quote Major Baggesen, and then he's going to present

    17 his opinion, but why repeat it time and again?

    18 JUDGE JORDA: No, I don't think that's

    19 right. I think that the Prosecutor is following a

    20 plan.

    21 Continue, Mr. Cayley. I think it is almost

    22 6.00, but continue for a few more moments, and then the

    23 case will continue tomorrow. Go ahead.

    24 MR. CAYLEY:

    25 Q. Do you believe that you would have been able

  135. 1 to give a better opinion to the Judges had Mr. Nobilo

    2 provided you with the complete testimony of Major

    3 Baggesen?

    4 JUDGE JORDA: No, he answered that question,

    5 Mr. Cayley. Now there I agree with Mr. Nobilo. He

    6 answered. He said that the elements that he had were

    7 enough for him in order to give an answer. Move to

    8 another question, please.

    9 MR. CAYLEY:

    10 Q. Did you read the part of Major Baggesen's

    11 testimony where he assessed the range to be 15

    12 kilometres; do you recall that?

    13 A. No.

    14 Q. Do you think it would have been helpful to

    15 you in your testimony here today had you been provided

    16 with that piece of evidence that Major Baggesen

    17 provided to the Court?

    18 A. I didn't need anything more than what I

    19 already had.

    20 JUDGE JORDA: Yes. Mr. Cayley, you received

    21 that answer already. The witness is satisfied with the

    22 materials that he had and that he read. You can

    23 cross-examine him on those things that he read.

    24 MR. CAYLEY: Mr. President, this is actually

    25 a different point. This is a different piece of

  136. 1 information which the witness did not have, and I think

    2 it's a fairly serious matter, if a witness is coming in

    3 here to comment upon evidence and he's commenting on an

    4 incomplete file of evidence.

    5 JUDGE JORDA: Yes. All right. Excuse me.

    6 MR. CAYLEY: Mr. President, at this point, we

    7 can --

    8 JUDGE JORDA: All right. I'll let you make

    9 your evaluation. All right. Go ahead.

    10 MR. CAYLEY: The point that I'm making,

    11 Mr. President, is that it appears the witness had not

    12 been provided with all of the evidence of Major

    13 Baggesen. Now, he --

    14 JUDGE JORDA: Yes, we know that now. Go

    15 ahead. Go ahead.

    16 MR. CAYLEY: I'm simply stating to the Court,

    17 and perhaps it's a matter for final argument, that I

    18 think that that is a fairly serious matter, since he is

    19 only commenting on written evidence that he has been

    20 provided with.

    21 MR. HAYMAN: Well, since we're discussing

    22 that matter, Mr. President, Major Baggesen did not

    23 undertake a ballistics study. Witness W did. Major

    24 Baggesen did not undertake a ballistics study. He did

    25 not. He made no mathematical calculations.

  137. 1 MR. CAYLEY: Mr. President --

    2 MR. HAYMAN: It's apples and oranges, and

    3 counsel can argue in closing argument, but if we're

    4 going to argue the issue, then let's have both sides

    5 argue it because we have something to say about that

    6 issue.

    7 JUDGE JORDA: No, no. First of all, we're

    8 not trying to accuse anybody of anything here.

    9 We will resume tomorrow at 2.00. I would

    10 like to point out to Mr. Cayley that it's three times

    11 now that we -- there are two things. First of all, the

    12 witness did not have all of the testimony, and you can

    13 draw all the conclusions you like from that, but the

    14 second thing is we know that the witness found enough

    15 material in what was given to him in order to do his

    16 calculations.

    17 From that point on, you can continue.

    18 Perhaps you can ask one or two questions on this

    19 subject before we end for this evening.

    20 MR. CAYLEY: Mr. President, I'm probably

    21 going to be moving to another witness's testimony, so

    22 now would be a convenient time to pause.

    23 JUDGE JORDA: All right. I think so too. We

    24 can resume tomorrow at 2.00 for the continuation of the

    25 cross-examination. First, we'll begin with the

  138. 1 cross-examination of this witness, Mr. Jankovic, before

    2 we move to the cross-examination of the previous

    3 witness.

    4 All right. The Court stands adjourned. We

    5 will resume tomorrow at 2.00.

    6 --- Whereupon the hearing adjourned at

    7 6.02 p.m., to be reconvened on

    8 Wednesday, the 20th day of January, 1999

    9 at 2.00 p.m.