1 Friday, 5 March 2004

2 [Open session]

3 --- Upon commencing at 9.27 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, would you

6 please call the case.

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

8 IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Registrar.

10 Appearances, please, from the Prosecution. We have just one

11 member of the Prosecution team this morning.

12 MR. WITHOPF: Good morning, Mr. President. Good morning, Your

13 Honours. Good morning, counsel. For the Prosecution, Ekkehard Withopf

14 and Ruth Karper, the case manager.

15 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf. I now

16 turn to the Defence team. There are several members on the Defence team

17 this morning.

18 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President. Good

19 morning, Your Honours. For the Defence of General Hadzihasanovic, Edina

20 Residovic, counsel; co-counsel, Stefane Bourgon, and Alexis Demirdjian,

21 the legal advisor. Thank you.

22 JUDGE ANTONETTI: [Interpretation] From the other counsels, please.

23 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour. For

24 the Defence of Mr. Kubura, Rodney Dixon, Mr. Ibrisimovic, and Mr. Mulalic,

25 the legal assistant.

1 JUDGE ANTONETTI: [Interpretation] Thank you. The Trial Chamber

2 would like to welcome all the people present here. We were delayed by the

3 fact that we would rather hold this hearing in Courtroom I rather than in

4 Courtroom II. This is why we were slightly delayed. I shall ask Madam

5 Registrar to move into private session now, please.

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12 [Open session]

13 Further cross-examination by Mr. Bourgon

14 MR. BOURGON: [Interpretation]

15 Q. Hello Witness ZI. I have a few questions to put to you. I would

16 like to complete our examination. Can you confirm, Witness ZI, that the

17 main roads are not always shown on your sketches? Is that correct?

18 A. That's right, yes. What is shown on the sketches is the

19 auxiliary -- are the auxiliary roads, the ones we took. For example,

20 there's no main road leading to -- or leading through the village of Donje

21 Cukle. So we had to take the existing road or path. I'm sure it exists

22 on the maps, but it is not the main road.

23 Q. Thank you, Witness ZI. On the other hand, the photographs show

24 all the photographs -- all the roads, I'm sorry, that are there.

25 A. Yes.

1 Q. And the houses that have been rebuilt are not marked on your

2 sketches; is that correct?

3 A. The houses which were rebuilt cannot be seen, although individual

4 ones are denoted with a dotted line to help us find our way on the

5 photograph.

6 Q. Witness ZI, whereas those houses that have been rebuilt are shown

7 on the photographs; is that correct?

8 A. Yes, that's right.

9 Q. Witness ZI, those houses that have not been destroyed cannot be

10 found on your sketches either; is that correct?

11 A. You cannot see the houses that were rebuilt, and it doesn't show

12 the houses which were not destroyed during that given period of time.

13 Q. Would you agree with me, Witness ZI, that on the photographs, we

14 can see those houses that have not been destroyed? Is that correct?

15 A. They can be seen on the photographs, but they are not marked by

16 numbers.

17 Q. On the other hand, on your sketches, there are houses which have

18 not been destroyed actual figure [as interpreted], like the church of

19 Bratovici [phoen].

20 A. The church at Brajkovici has been marked in for purposes of

21 orientation. It serves as a landmark and it doesn't say anywhere that the

22 church at Brajkovici was destroyed.

23 MR. WITHOPF: Mr. President, even if it's time-consuming, we must

24 be very accurate. My learned colleague can't ask such a general

25 question: "There are houses which have not been destroyed actual figure

1 like the church of Brajkovici," it's probably referred to. My learned

2 friend may, please, refer to the sketch which is concerned by its number.

3 This issue can be dealt with in a general manner. One must go, even if

4 it's time-consuming, sketch by sketch. So when my learned friend wishes

5 to ask questions in relation to certain buildings, he please may refer to

6 the respective sketch and the respective photograph.

7 JUDGE ANTONETTI: [Interpretation] Yes, Maitre Bourgon. If you

8 could please provide the number of the sketches and the photographs when

9 you ask your questions, given that those questions you put, on the basis

10 of the sketches that he has drawn, has he mentioned all the houses and

11 those that are not mentioned, for what reason have they not been

12 mentioned? But the sketches currently being discussed are the sketches

13 provided by the investigator. They are not his sketches. This is

14 important to understand on what basis he answers your questions. Is it

15 from memory the sketches he has drawn or is it on the basis of those

16 sketches that he has been provided with.

17 MR. BOURGON: [Interpretation] I was only referring to the sketches

18 that the Trial Chamber has before their eyes today, and the church of

19 Brajkovici was to confirm something which has already been said by the

20 witness yesterday and that this will only be -- I will only put this type

21 of question once. It was the only one.

22 THE WITNESS: [Interpretation] The church at Brajkovici is drawn in

23 here as a landmark, and on the sketch of Brajkovici, you can see that this

24 includes just three buildings which were destroyed. That is to say,

25 number 1, 2, and 3. The church itself, as a building destroyed, is not on

1 the sketch. It doesn't say that the church was destroyed on the sketch.

2 MR. BOURGON: [Interpretation]

3 Q. Thank you, Witness ZI. That was the purpose of my question. In

4 other words, there are buildings that have not been destroyed and that are

5 on your sketches; is that correct?

6 JUDGE ANTONETTI: [Interpretation] That's not quite what he said,

7 and that is -- the witness explained. I have the transcript before my

8 eyes - that the church mentioned in the document was not mentioned. There

9 is -- and has no number, because it was not destroyed. But the witness

10 did say that as far as he was concerned, that church had been damaged.

11 MR. WITHOPF: Mr. President, Your Honours, I very strongly oppose

12 against the manner my learned colleague is asking his questions and

13 drawing conclusions by -- of the answers, based on the answers of Witness

14 ZI. The witness was only referring to the church in Brajkovici, and my

15 learned friend was concluding that many or a number of houses which are

16 identified on the sketches or detailed on the sketches were not destroyed.

17 Again, in that respect, we must be very accurate, and I think it's not up

18 to my learned colleague to draw conclusions and to interpret the clear

19 answers of Witness ZI. The Witness ZI gave a very clear answer. It was

20 only the church in Brajkovici, and his answer was not relating to any

21 other building.

22 JUDGE ANTONETTI: [Interpretation] Maitre Bourgon, you may put

23 questions to the witness, but make sure you ask very concise questions so

24 that everybody understands what's going on. Because if the answer is too

25 long, it can be interpreted in different ways. Make sure that it is

1 crystal clear, please, and that the answer can alike be crystal clear.

2 MR. BOURGON: [Interpretation]

3 Q. The school -- the church at Brajkovici figures on your sketch; is

4 that correct?

5 A. It is just shown as a landmark, for purposes of orientation. It

6 is not on the list of destroyed buildings. You have a list of destroyed

7 buildings, numbers 1, 2, and 3, and also, as a point of orientation, we

8 include the church at Guca Gora. But that too is not on the list of

9 buildings destroyed.

10 MR. BOURGON: [Interpretation] Your Honour, if the witness's answer

11 goes well beyond the scope of my question, this is not my intention. I am

12 putting here a very simple, a very clear question.

13 Q. Is the church at Brajkovici mentioned on your sketch? Yes or no.

14 A. Yes. Yes, you can see it.

15 Q. The church has not been destroyed, has it? Yes or no.

16 A. At that time, it had been refurbished.

17 Q. And you use this church as a landmark?

18 A. Yes.

19 Q. And we may discover other landmarks of this nature on your

20 sketches?

21 A. Only the church at Guca Gora and the school building in Donje

22 Cukle.

23 Q. Thank you, Witness ZI, for your answers. The sketches we have are

24 not the sketches you have drawn yourself; is that correct?

25 A. The sketches were drawn by the investigator, Mika Tauru.

1 Q. Witness ZI, that was not the question I put to you. Are these

2 your sketches? Yes or no.

3 A. No.

4 Q. Do you still have your sketches?

5 A. Yes.

6 Q. And you have never handed your sketches over to the investigator,

7 have you?

8 A. No.

9 Q. And when you show buildings that have been destroyed and you add a

10 letter and an alpha to state, according to your testimony, that you are

11 talking here about an outhouse, whether it be a farm, a garage, or

12 somewhere where the meat was being smoked, this is your personal

13 description of the premises you visited; is that correct?

14 A. Yes. Yes. So it was either a shed, a garage, a smoking --

15 meat-smoking hut, or some other hut.

16 Q. And among those houses you describe, you described those houses

17 having been destroyed. You said some of them belonged to Serbs, some

18 belonged to Croatians, some belonged to Muslims; is that correct?

19 A. No. There is not a single Bosniak or Serb house.

20 Q. On your sketches or on the map, are there any houses which belong

21 to Bosniaks that have been destroyed?

22 A. No.

23 Q. And if I turn to your sketches, Witness ZI, you can confirm that

24 what is shown at the bottom of these sketches --

25 MR. WITHOPF: Mr. President.

1 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, you have the floor.

2 MR. WITHOPF: My learned colleague has repeatedly been told that

3 there are two different sets of sketches. The one set are the sketches

4 the witness drew himself, and the second set, and these are the sketches

5 which are marked for identification and which form part of the Rule 92 bis

6 statement of Witness ZI. Other ones which were drawn by the OTP

7 investigator, Mika Tauru. My learned colleague may, please, clarify

8 whether he asked the Witness ZI questions about the sketches that Witness

9 ZI has drawn, or whether the questions are related to the sketches the OTP

10 investigator Tauru has drawn and which are in evidence.

11 JUDGE ANTONETTI: [Interpretation] Yes, Maitre Bourgon. You have

12 noted what the Prosecution has just said. When the question is put to the

13 witness, does it relate to the sketch made by the witness himself but

14 which are not part of this procedure, or does it relate to the notes of

15 the investigator? I think this has to be made very clear.

16 THE INTERPRETER: Please, Maitre Bourgon, could you wait for the

17 translation to be finished before putting your question.

18 MR. BOURGON: [Interpretation]

19 Q. You mentioned, Witness, that I -- yesterday, that these sketches

20 were different, your sketches were different from those of the

21 investigator.

22 A. It wasn't essentially different. He worked in his own way. So

23 naturally, everyone makes sketches in a different way. I gathered

24 information and my objective was to present this in the most accurate way

25 to the investigators.

1 Q. Thank you, Witness ZI. Now, regarding the sketches of the

2 investigator before the Trial Chamber today, you cannot confirm what those

3 annotations at the bottom of the sketch is, is that correct, in other

4 words, the times mentioned at the bottom?

5 A. No, I can't.

6 MR. WITHOPF: Mr. President --

7 MR. BOURGON: [Interpretation]

8 Q. And you can't confirm either on the sketches of the

9 investigator --

10 MR. WITHOPF: Mr. President, the witness has been asked by my

11 learned colleague the very same question on Wednesday already, and the

12 witness has answered the question. May my learned colleague please

13 explain to the Trial Chamber why he puts the very same question now to the

14 third or the fourth time to the witness.

15 JUDGE ANTONETTI: [Interpretation] Yes. Apparently the fact that

16 these documents make reference to a date, for example, it says Gornje

17 Cukle 1, 12, 4, 02, 1130, 1140. You asked a question. He said he didn't

18 know exactly what this meant, what this corresponded to. So you would

19 like the witness to tell us the reason for which the time was noted. Was

20 that when the visit started? Is it the time it took to make the sketch?

21 Is that the reason for which you are asking these questions, Mr. Bourgon?

22 MR. BOURGON: [Interpretation] Thank you, Mr. President. It's true

23 that a similar sort of question was asked when we were discussing about

24 the time it took to visit these places. He replied that he didn't know

25 whether this referred to the time passed when making these visits. But

1 one can answer yes or no to this question. Does the witness know what the

2 time refers to? The witness said he didn't know. And now my question is

3 whether the witness can identify, at the bottom of the sketches, the

4 information that is on the side. And this is why I want to draw your

5 attention to this fact, because there is other information at the bottom,

6 next to the time. Can the witness recognise or identify the information

7 there?

8 JUDGE ANTONETTI: [Interpretation] Yes, Witness. You can see that

9 on the bottom of the page, that there is the date, the time, and other

10 information, two lines of information. What does that correspond to?

11 What does that mean, in your opinion, Witness? Because it's an enigma.

12 THE WITNESS: [Interpretation] The investigator made use of GPS

13 device while he was on site. This is a device used to locate the starting

14 point. And I know that on each occasion that he used a GPS device, he

15 used an arrow pointing to a point on the sketch. He made a note of those

16 figures. But as to what those figures represent exactly, I really don't

17 know.

18 JUDGE ANTONETTI: [Interpretation] That means that if a GPS device

19 was used in this courtroom, we could make similar notes; is that correct?

20 THE WITNESS: [Interpretation] Most likely.

21 JUDGE ANTONETTI: [Interpretation] Mr. Withopf says that that is

22 the case.

23 MR. BOURGON: [Interpretation]

24 Q. Witness, so we should be able to see an arrow and a figure in the

25 sketches. I can't see any arrows or figures. I can see Xs, though.

1 A. I didn't say an arrow. I said an "X." Each sketch had an X if it

2 contained those numbers.

3 Q. That's my mistake, because in the interpretation, according to the

4 interpretation, I thought that it was an arrow and a figure. But I'll

5 move on to my next question. But I see that my colleague wants to say

6 something?

7 JUDGE ANTONETTI: [Interpretation] Just a minute. I think

8 Mr. Withopf has something to say about the GPS device.

9 MR. WITHOPF: Very well. The numbers, which one can see on the

10 right-hand side at the bottom of each sketch, these are actually the

11 numbers which result from using the GPS device. This device, as the

12 Chamber may be very well aware of, is used in the field to identify to the

13 highest possible extent the exact location of a certain position.

14 JUDGE ANTONETTI: [Interpretation] That's what the witness has

15 already told us.

16 MR. BOURGON: [Interpretation] I'd like to thank my colleague for

17 the explanations, but perhaps I could ask my learned colleague these

18 questions.

19 JUDGE ANTONETTI: [Interpretation] No. Please carry on,

20 Mr. Bourgon.

21 MR. BOURGON: [Interpretation] Thank you, Mr. President.

22 Q. Witness, I'm going to ask you a few questions about the

23 photographs that were shown to you today. First of all, I want to talk

24 about a question put to you by the President of the Chamber concerning a

25 photograph, which refers to Susanj 1.

1 A. No.

2 MR. BOURGON: [Interpretation] Mr. President, could we show the

3 witness photograph Susanj 1.

4 JUDGE ANTONETTI: [Interpretation] Yes.

5 Madam Registrar, could you show the witness the Susanj 1

6 photograph.

7 MR. BOURGON: [Interpretation] I'm told that the number of this

8 photograph is P82.

9 Q. Witness, following the question put to you by the President of the

10 Trial Chamber about the house identified as house number 4, would you

11 agree with me that it is not always easy to identify the right house when

12 comparing your photographs and sketches?

13 A. I'm very well acquainted, very familiar with this area. I said

14 that it was a house. I said that this was the Markovici settlement. And

15 I know that area very well, and --

16 THE INTERPRETER: Microphone, please.

17 MR. BOURGON: [Interpretation]

18 Q. That wasn't the purpose of my question. I'll rephrase my

19 question. If you have a look at your sketch. If you have a look at house

20 number 4, and if you have a look at house number 4 in the photograph. My

21 question is as follows: If it hadn't been marked with number 4, it would

22 be difficult to establish a relation between the two; is that correct?

23 A. Not for me. We have the main road, the Ovnak-Zenica road; we have

24 a turning on the right; there is a semicircle there. And no, it's not

25 difficult for me. On the map, you can see the road for Zenica. It has

1 been marked there. And there are roads there which would lead right up to

2 the house.

3 Q. Thank you, Mr. ZI, for this information. The photographs shown to

4 you today and the numbers they had, is this the first time you have seen

5 the photographs and the numbers on the photographs? Is that correct?

6 A. I knew that these photographs had been made. I saw some of them

7 that had to do with Guca Gora.

8 Q. Witness, I'm going to try and make my questions precise so that we

9 can focus on the subject that interests us. Are you capable of

10 identifying the houses today, and have you already seen them together with

11 the numbers?

12 A. I saw some of the photographs.

13 Q. Witness ZI, were you with the investigator -- sorry - were you

14 with the person who numbered these photographs?

15 A. No, I wasn't. No.

16 Q. And Witness ZI, the title we see on the top of each photograph, it

17 doesn't always correspond to the villages mentioned in your sketches; is

18 that correct?

19 A. I've explained --

20 MR. WITHOPF: Mr. President --

21 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Withopf.

22 MR. WITHOPF: Again, my learned colleague also has been told

23 repeatedly. He's still making reference to the sketches of the witness.

24 We are not talking about the sketches of the witness here. My learned

25 friend may, please, be accurate in his questions.

1 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Bourgon. Could you ask

2 the witness if the names on the photographs correspond to the sketches.

3 But he didn't make the sketches.

4 MR. BOURGON: [Interpretation] I'd like to thank my colleague for

5 his comment.

6 Q. Witness ZI, on the sketches before the Trial Chamber, there are

7 the names of the villages; and on the photographs, there are names of

8 villages. But the names don't always correspond. The names of the

9 villages in the photographs and the names of the villages in the sketches

10 don't always correspond; is that correct?

11 A. I couldn't confirm that without seeing all those photographs and

12 sketches again, and in order to compare them. I didn't pay attention to

13 them. I know that when I was establishing a link between the photographs

14 and the sketches, I always found the sketch that went with the photograph

15 in question. So I can't confirm that.

16 Q. On the photographs, in the photographs that were shown to you

17 today, there is no date mentioned; is that correct?

18 A. No, there is no date.

19 Q. Witness ZI, in the sketches, in the investigator's sketches before

20 us today, the number of sketches is smaller than the number of photographs

21 that were shown today; is that correct?

22 A. Well, again, I can't say yes or no. After having counted them, I

23 would be able to do that. All I confirmed, all I said, is that I

24 established a link between the photographs and the sketches.

25 Q. Thank you, Witness. We'll give you an example to enable you to

1 answer my question. I would like to give you the example of Ovnak.

2 MR. BOURGON: [Interpretation] And could we show the witness

3 Exhibit P81, please.

4 Q. Witness ZI, would it be correct to say that there are four

5 photographs that correspond to the three sketches made by the

6 investigator, and the sketches that are before the Trial Chamber today?

7 Is that correct?

8 A. Yes, it is.

9 Q. And you have just realised the fact; is that correct?

10 A. Yes, that's correct.

11 Q. To use the example of Ovnak again, and the exhibit you have before

12 you, in order to understand one of the sketches, it's necessary to view

13 more than just one photograph; is that correct?

14 A. Yes.

15 Q. And Witness ZI, would it be correct to say that in order to see

16 one full photograph, it's necessary to view more than just one sketch?

17 A. Yes.

18 Q. Would you agree with me, Witness ZI, that this takes a lot of

19 experience? If one wants to establish a link between the sketches made by

20 the investigator and the photographs?

21 A. Well, I think I provided a precise explanation of the connection

22 between the sketches and the photographs.

23 Q. Witness ZI, you can do this because you went into the field and

24 you have a lot of experience; isn't that correct?

25 A. I went to the actual site, but as to my experience, well, that is

1 something one could have doubts about.

2 Q. Thank you, Mr. ZI, for your answer. I have one last question for

3 you. Personally, I have to say that I had a lot of difficulty in

4 following you when you were explaining the relation between the sketches

5 made by the investigator, the sketches that are before the Trial Chamber

6 today, and the photographs before the Trial Chamber today. But I will

7 leave this to the Trial Chamber. The Trial Chamber shall decide to what

8 extent both can be used.

9 Nevertheless, my question is as follows: If the numbered

10 photographs, the photographs that are before the Trial Chamber today, if

11 these photographs are an accurate reflection of the sketches made by the

12 investigator, would you agree with me, Witness ZI, that the numbered

13 photographs contain no new and additional information as far as the

14 destroyed houses are concerned?

15 A. No. They contain visual information. You can see that these

16 buildings have been destroyed. The sketches only show the buildings that

17 have been marked there, and in the photographs, you can more or less

18 experience this yourself.

19 Q. Thank you for your information, Witness ZI. If the photographs

20 which are before the Trial Chamber today don't have your information,

21 according to which the sketches made by the investigator are a hundred per

22 cent precise, the photographs that we have today don't provide any

23 additional information about the circumstances under which the houses were

24 destroyed; is that correct?

25 A. I haven't understood your question, I have to admit.

1 Q. I'll rephrase it again. Perhaps it was a little long.

2 Witness ZI, the photographs before us today, the numbered

3 photographs, would you agree with me that these photographs provide no

4 additional information about the circumstances under which the houses were

5 destroyed? Is that correct?

6 A. Well, the sketches say nothing about the circumstances either, and

7 I never mentioned the circumstances under which these buildings were

8 destroyed. I spoke about the actual situation in the field.

9 Q. And that is the purpose of my question, Witness ZI. Would you

10 agree with me that the photographs before the Trial Chamber today, the

11 numbered photographs, don't provide any additional information, if we

12 compare them to your sketches, they provide no information about the

13 identity of the persons involved in the destruction of these houses? Is

14 that correct?

15 A. Well, the identity of the persons who destroyed the houses is not

16 mentioned in my sketches either.

17 Q. Witness ZI, and the same question can be put with regard to the

18 photographs that we have before the Trial Chamber today. The numbered

19 photographs don't provide any new information, if we compare them with the

20 sketches made by the investigator, the sketches before the Trial Chamber

21 today, they provide no new information with regard to the exact dates on

22 which these houses were destroyed; is that correct?

23 A. It's quite clearly been stated that the photographs and sketches

24 were to contain information about the buildings destroyed in the period --

25 during a period that interested the investigator. That was the purpose of

1 this. As to how they were destroyed, perhaps other witness have testified

2 about this or will testify about this in the future.

3 Q. Thank you, Witness ZI. And my last question: If we compare the

4 photographs before the Trial Chamber today and the sketches made by the

5 investigator, these sketches also before the Trial Chamber today, the

6 sketches reflect nothing else with regard to the period of destruction,

7 apart from the dates referred to in your statement; is that correct? That

8 is the only information they provide.

9 A. When the preparations were made, this work was done for that

10 period. So it was the period mentioned at the beginning of my testimony

11 and Susanj, for Ovnak, for each location, the relevant period was

12 indicated, and it was on that basis that the information was gathered. It

13 is on that basis that I marked the buildings, and it is on that basis that

14 these buildings which appear in the photographs have been marked.

15 Q. Thank you very much, Witness ZI. You could have simply answered

16 the question by saying: Yes. I would like to thank you once more for

17 your patience.

18 MR. BOURGON: [Interpretation] Mr. President, I have no further

19 questions for the witness, but perhaps the Trial Chamber would like to

20 hear submissions about the admissibility of the photographs presented.

21 JUDGE ANTONETTI: [Interpretation] Does the other Defence team have

22 any questions to ask.

23 MR. DIXON: I don't have any questions for this witness.

24 Questioned by the Court:

25 JUDGE ANTONETTI: [Interpretation] Witness, I have a minor

1 question. You have already answered this question, but I would like to

2 clarify something.

3 On the basis of the sketches that you made and the sketches that

4 you had before you a minute ago, the sketches made by the investigator,

5 and in relation to the photographs, in the villages, in the settlements

6 examined, were there any houses that belonged to other non-Croat

7 communities, that is to say, were there any Serb or Bosniak houses? If

8 that was the case, would these houses also have been destroyed?

9 THE WITNESS: [Interpretation] Well, the only settlement that was

10 in the vicinity -- it's the connection between Gornje Cukle and Donje

11 Cukle. I had no information about such buildings. No one informed me

12 that such buildings had been destroyed. They can't be seen in the

13 photographs either. The other buildings were owned by Croats.

14 JUDGE ANTONETTI: [Interpretation] You haven't answered my

15 question, though. In these villages, were there only Croats, or were

16 there also Serbs and Bosniaks? Since you were there, you were able to

17 observe this.

18 THE WITNESS: [Interpretation] There were only Croats who inhabited

19 these villages.

20 JUDGE ANTONETTI: [Interpretation] So there were only Croats. The

21 population was a hundred per cent Croat. There were no other communities

22 there?

23 THE WITNESS: [Interpretation] Yes.

24 JUDGE ANTONETTI: [Interpretation] Very well. You have answered my

25 question.

1 The Defence wanted to present certain arguments concerning

2 admitting these photographs into evidence, but perhaps Mr. Withopf would

3 like to say something first.

4 MR. WITHOPF: Mr. President, Your Honours, I'm a bit surprised

5 that my learned colleague tries to make a representation on the issue of

6 the admissibility of the photographs into evidence. The issue has been

7 discussed earlier on today at length. The Trial Chamber has quite

8 lengthily deliberated on this issue, and the Trial Chamber came back and

9 rendered its decision, and I'm again referring to page 17, lines 19

10 onwards, and to page 18 of today's transcript, where we can read: "The

11 Trial Chamber orders that these photographs should be tendered into

12 evidence. The Trial Chamber believes the tendering into evidence the

13 sketches or photographs would guarantee the right to a fair trial for the

14 accused."

15 This issue has been decided upon. And again, I'm quite surprised

16 that my learned friend tries to touch on this issue again. I have the

17 strong impression that my learned colleague is mixing up the issue of

18 admissibility of the photographs into evidence and the issue of their

19 evidentiary value. Therefore, I would respectfully request that the Trial

20 Chamber doesn't allow the Defence to further on elaborate on this issue.

21 It has already been decided, and the Prosecution repeats its request to

22 tender the exhibits, sketches and photographs P81 to P89 into evidence

23 now.

24 JUDGE ANTONETTI: [Interpretation] We have decided to order,

25 following your request, the tendering into evidence, but we wish to mark

1 these documents for identification. The question is therefore the

2 following: Whether these numbers, marking the document for

3 identification, will eventually be exhibit numbers. We still need to rule

4 on this. And I shall now give the floor to the Defence team. Because P81

5 was a document marked for identification. And for these documents to have

6 exhibit numbers -- correction. The Defence may take the floor now and

7 make remarks concerning these documents. We also have another issue to

8 address.

9 MR. BOURGON: [Interpretation] Thank you, Your Honour. The Defence

10 at this stage would request, Your Honour, that the sketches annexed to the

11 statement, as well as the photographs presented by the Prosecution, be not

12 tendered into evidence, for the following reasons: Firstly, I shall

13 address these sketches. The sketches, Your Honour, were not prepared by

14 the witness. The witness did draw real sketches. These sketches can be

15 accessed. This has to do with the reliability of the sketches.

16 Reliability of the sketches is important. The sketches are not reliable

17 because they were drawn up on the basis of information which remains

18 unknown. In this particular case, Your Honour, we're not talking about

19 hearsay, but we are talking about information that has been handed down by

20 the fourth generation. The witness has received instructions from one of

21 the parties, namely, an investigator of this Tribunal. The investigator

22 cannot confirm the instructions he gave. According to the witness's

23 statement, two instructions relate to the dates. The witness confirms

24 that he was asked to identify those houses that had been destroyed in

25 1993. I am referring here to the statement made by the witness in

1 paragraph 2, when he was given his assignment by the investigator. Let me

2 quote his words in English [In English]: "To gather data including

3 photographs on all the houses/outbuildings destroyed between January 1993

4 and January 1994."

5 [Interpretation] The witness told us during his testimony that he

6 had received other instructions in January 1993 concerning Dusina, and up

7 until the 15th of February, 1993. And as far as the other towns are

8 concerned, with the exception of Miletici, from the 9th of June, 1993

9 onwards, and up until to the end of June 1993. As far as Miletici is

10 concerned, he mentioned -- the dates he mentioned are dates in the months

11 of April. We don't know whether the instructions stemmed from the

12 investigator or whether these instructions were provided by -- or

13 mentioned by the witness. The witness states that he was well aware of

14 the indictment, and he also told us that he had read the indictment before

15 accepting his assignment.

16 This information has been handed over to a number of people. Some

17 of these people's names are mentioned in the indictment. Other

18 people's -- or other names don't even figure in the witness's statement.

19 These are names of people I mentioned during my cross-examination and

20 which we can find in the statement made by the witness. We don't know

21 where some of these people were during this particular period, and we

22 don't know exactly how long this particular period spans either. These

23 people then handed down the information to a number of people, namely,

24 local residents, the names of which are unknown, the names of which cannot

25 be found in the statement. We do not know the identity of these people.

1 We don't know where -- when this happened. And we don't know whether the

2 period of time can be clearly assessed. The witness told us during his

3 testimony that he was able to distinguish a reliable source from an

4 unreliable one. He himself, however, does not know the people concerned

5 personally. These people have collected information. The information has

6 then been handed down to the people who had been contacted by the witness.

7 The witness then handed down this information to an investigator, who drew

8 up a sketch, who wrote down numbers on a photograph, when the witness was

9 not present, to have all of this shown and presented to the Trial Chamber

10 today.

11 We therefore submit, with all due respect, that the information

12 contained in the sketches, what the Defence is submitting is not that the

13 information is not correct. What we are saying is that we don't know

14 whether the information is reliable or not, and do not meet the

15 reliability criteria.

16 More importantly, Your Honour, the information contained in the

17 sketches provides no information whatsoever, as the witness stated, about

18 the circumstances in which these houses were destroyed, provide no

19 information either of the identity of those people that may have been

20 involved in the destruction of those houses, provides no information about

21 the exact dates during this period of when these houses could have been

22 destroyed.

23 As far as Guca Gora is concerned, there is a defect in the

24 procedure. These photographs were not shown in November 1993 -- sorry- in

25 2002. Now, as far as reliability of information is concerned, I should

1 mention Guca Gora again, because witness admitted that he did not know

2 where the information stemmed from, witness that has made a deposition

3 before this Trial Chamber. This witness was not a protected witness, and

4 this witness did not provide that same information to the Trial Chamber.

5 Given the indictment and the rights of our accused, we submit that the

6 sketches before the Trial Chamber today, that were prepared by the

7 investigator, are relevant. We agree to that. Nevertheless, the

8 probative value and responsibility of the accused and the charges

9 contained in the indictment, we feel the probative value of these sketches

10 largely or substantially outweighs the prejudice it could cause the

11 accused. If these sketches are being tendered as evidence.

12 I should now like to address the question of the photographs. The

13 photographs, of course, are much more revealing. We are better able to

14 understand the background circumstances here. The photographs without the

15 numbers, or the numbers would better enable the Bench to understand what

16 the circumstances were, how the houses were destroyed in 2002. This is

17 what these photographs represent, and nothing else. The real issue are

18 the numbers that have been added onto the photographs, because these

19 numbers refer to the sketches, which we feel contain very little probative

20 value. The witness was not present when the photographs were taken. He

21 states that he knew that the photographs were taken, and after a question

22 put to him by my learned friend, he probably -- or we had reason to

23 believe that he would be unable to explain the difference or the

24 distinction between the red and the blue markings.

25 During my cross-examination, I established how difficult it was to

1 take a photograph and use a photograph to better understand the sketch,

2 and vice versa. The photographs, which I have confirmed with the witness,

3 provide no further information concerning the sketches. The photographs,

4 of course, provide a clearer picture, but this is not the point in

5 question. As far as the responsibility of the accused is concerned, the

6 photographs add nothing whatsoever. According to Rule 89(D), it -- the

7 Trial Chamber may exclude any evidence. We agree with the Chamber that he

8 confirmed that the probative value is something that must be assessed,

9 assessed by the Trial Chamber solely.

10 Nevertheless, when one of the two parties wishes to submit that

11 the probative value substantially outweighs the prejudice, we feel that

12 the Chamber may exclude this evidence.

13 And I should like to submit my last argument, Your Honour. The

14 prejudice caused to the accused. We respectfully submit that if you allow

15 this evidence to be tendered into evidence, we are reversing the burden of

16 proof. As my learned colleague mentioned earlier today. It is for the

17 Prosecution to prove its case beyond all reasonable doubt. There are the

18 counts 5 and 6 that talk about destruction. It is for the Prosecution to

19 prove, during the period mentioned in the indictment, that houses have

20 been destroyed by the subordinates of the accused. Article 7(3) of the

21 Statute of this Tribunal.

22 When we have photographs of houses that have been destroyed, and

23 when we have houses that have been identified in an unreliable way, over a

24 large period of time, it is interesting then to look at the photograph.

25 And we feel that the burden of proof has been reversed. It is now for the

1 accused to demonstrate that those photographs which are numbered and have

2 not been destroyed by the accused or their subordinates. This is a

3 crucial issue, Your Honour, when talking about the fairness of this trial.

4 And for all the foregoing reasons, the Defence respectfully submits that

5 the photographs which are numbered, as well as the sketches prepared by

6 the investigator before the Trial Chamber be not tendered into evidence.

7 Thank you, Your Honour.

8 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, you have the floor.

9 MR. WITHOPF: Mr. President, Your Honours, I'll try to be very

10 brief, since the majority of the issues which have been raised by my

11 learned colleague have been repeatedly under discussion whilst this

12 Witness, ZI, was testifying before this Trial Chamber.

13 There are a number of issues which appear to be relevant. The

14 first one is the witness statement under Rule 92 bis and its annexes.

15 The second issue is Rule 89(C) and Rule 89(D), which concerns the

16 probative value of the sketches and the photographs.

17 I wish to reiterate that all sketches, with the exception of

18 Maljine and Guca Gora, formed part of the Rule 92 bis statement. The

19 Trial Chamber has already ruled on the statement and the annexes itself,

20 and the Trial Chamber has decided that they are admitted into evidence.

21 In respect to the sketches and photographs, Prosecution Exhibits

22 P81 to P89, marked for identification, I think it's really important to

23 again emphasise that Witness ZI is very -- is extremely familiar with the

24 areas in question. He knows the villages in question and he visited them

25 repeatedly. The witness has repeatedly stated that he, in 2002, visited

1 all the areas concerned, all the villages concerned. The witness has

2 repeatedly stated that he himself has seen, in April 2002, each and every

3 single house which is detailed on the sketches and which is detailed on

4 the various photographs.

5 So the witness, therefore, is in a position to comment on both the

6 sketches and the photographs, although he himself hasn't drawn the

7 sketches and also he himself hasn't taken the photographs.

8 I wish, however, to add that the photographs, as I mentioned

9 earlier on today, were taken during the very exact time frame the Witness

10 ZI has visited the villages and has seen the destroyed houses, namely,

11 April 2002.

12 The Prosecution was at no point in time submitting that the

13 photographs and/or the sketches would contribute to show as to who

14 destroyed the houses and under what circumstances. It's obvious that the

15 photographs and the sketches only can show the situation at the time the

16 photographs were taken and the sketches were drawn. That's 2002.

17 Unfortunately, I have to repeat myself. In combination with the

18 testimony of witnesses who already have been heard before this Trial

19 Chamber - and I, in particular, am referring to the witness who has been

20 shown the photograph in respect to Guca Gora and who has marked and

21 identified the houses damaged and destroyed, and I'm also referring to a

22 number of other witnesses which already testified before this Tribunal and

23 before this Trial Chamber, and we will have additional witnesses in future

24 who will also be able to testify about the destruction done by

25 subordinates of the two accused. In combination -- or the combination of

1 the testimony of the witnesses, the testimony concerns the issue how,

2 when, and by whom the houses were damaged and/or destroyed, and the

3 combination of such testimony and the sketches and the photographs shown

4 today, this will assist the Trial Chamber to judge on the probative value

5 of the sketches and the photographs.

6 In respect to Rule 98(C) [sic], and Rule 98(D), of course, the

7 Prosecution is very well aware that what the witness has testified about

8 is basically hearsay evidence. Hearsay evidence is admissible, and the

9 witness who is a very experienced investigator, he is certainly in a

10 position, and also taking into account his current position, and the Trial

11 Chamber is very well aware of the Witness ZI's current professional

12 duties. He is a person who can judge on the reliability of other persons.

13 He, in fulfilling his professional duties, has to rely on. That means the

14 evidence the witness has given in respect to the photographs and the

15 sketches has probative value, and the Judges of this Trial Chamber are

16 certainly very well prepared to judge on the probative value.

17 Therefore, Mr. President, Your Honours, the Prosecution is of the

18 view that probative value is given, and therefore, the photographs and the

19 sketches, Prosecution Exhibits marked for identification P81 to P89,

20 should be admitted into evidence, and I respectfully again request the

21 Trial Chamber to rule on this issue, and to admit Prosecution Exhibit's

22 P81 to P89 so far marked for identification into evidence. Thank you.

23 JUDGE ANTONETTI: [Interpretation] Very well. We shall rule on

24 this matter. We shall now move into private session again.

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24 --- Recess taken at 3.02 p.m.

25 --- On resuming at 3.22 p.m.

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6 --- Whereupon the hearing adjourned at 4.04 p.m.

7 to be reconvened on Monday, the 8th day of March

8 2004, at 2.15 p.m.

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