Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6264

1 Wednesday, 28 April 2004

2 [Open session]

3 --- Upon commencing at 9.02 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, will you call

6 the case, please.

7 THE REGISTRAR: Case number IT-01-47-T, the Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

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

10 Can we have the appearances for the Prosecution, please.

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

12 Honours. Good morning, Counsel. For the Prosecution, Daryl Mundis,

13 Ekkehard Withopf, and Ruth Karper, the case manager.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

15 Can we have the appearances for the Defence, please.

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

17 Good morning, Your Honours. On behalf of Enver Hadzihasanovic, Edina

18 Residovic, counsel; Stephane Bourgon, co-counsel; and Mirna Milanovic,

19 legal assistant.

20 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

21 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

22 Mulalic, legal assistant.

23 JUDGE ANTONETTI: [Interpretation] Thank you. The Chamber wishes

24 to greet all those present, the representatives of the Prosecution, the

25 Defence counsel, the accused, as well as all the staff of this courtroom,

Page 6265

1 as well as those outside this courtroom.

2 On this rainy morning, we will continue the hearing devoted to

3 documents. Yesterday we were not able to fully complete the agenda, which

4 consisted of three points, so we still have to address the question of

5 relevance; however, yesterday the Defence indicated that they intended to

6 refer to a number of documents. We have received only a few minutes ago a

7 list drawn up by the Defence teams for both accused, and contrary to what

8 was said yesterday, there are far fewer documents than we expected.

9 Nevertheless, we do have a certain number of documents which are fully

10 referenced in relation to the consolidated list of the Prosecution. It

11 begins with number 38 -- 3538, and it ends with number 639. This is the

12 document provided to us by the Defence counsel for Mr. Hadzihasanovic, and

13 on behalf of Mr. Kubura, Mr. Dixon has also provided us with a list of

14 documents.

15 It was my understanding that the late arrival of this list could

16 cause some problems for the Prosecution. That is why I should like to

17 give the floor to Mr. Withopf, for him to explain to us the difficulties

18 he may have and what his suggestion is.

19 MR. WITHOPF: Thank you very much, Mr. President.

20 Mr. President, it's unfortunately a fact that both the Trial

21 Chamber and the Prosecution were only supplied -- were supplied with the

22 list detailing the documents which Defence wishes to discuss today at a

23 very late stage yesterday.

24 Yesterday night at 6.54 p.m. I received an e-mail, the same

25 e-mail which was addressed to the Chamber's legal officer, in which the

Page 6266

1 Defence for the accused Hadzihasanovic listed 36 documents they in the

2 course of the today's court session wish to discuss. At 6.30 p.m.

3 yesterday night I have made inquiries with the Kubura Defence, which has--

4 which has promised on the record yesterday at about 2.00 that the list

5 would be available -- would be made available within an hour. At 6.30, at

6 my -- as a result of my inquiries, I was orally informed about the number

7 of 18 documents they wish to discuss.

8 The list of the Hadzihasanovic Defence counsel, Mr. President,

9 Your Honours, followed the numbering system in the Prosecution's further

10 detailed exhibit list; whereas, the basis for the today's discussion is

11 the contested exhibit list. It took me more than one hour to actually

12 figure out which documents Defence wishes to discuss, and it took me a bit

13 more time to locate these documents in the binders.

14 Once I had located them, Mr. President, Your Honours, I realised

15 that there are a significant number of documents amongst them, amongst the

16 documents Defence wishes to discuss - and that's again under the theme of

17 poor photocopies and/or illegible signature. Defence counsel, both

18 Defence counsel, made the information and made the list available to the

19 Prosecution at a point in time it made it impossible for the Prosecution

20 to properly prepare for the today's court session. Proper preparation

21 would have required to discuss whatever issues may be discussed by Defence

22 today with investigators and analysts. The main issue, however - and this

23 refers to the issue of poor photocopies or illegible signature - is the

24 fact that we can only discuss these documents once we have the originals

25 in front of us, and the Prosecution, as Defence counsel are very well

Page 6267

1 aware of, the Prosecution at 8.30 at night is not in a position to get the

2 documents from the evidence vault. That means between 20.30 hours and

3 9.00 this morning the Prosecution was not in a position to see the

4 documents and to properly prepare for the today's court session.

5 In this context, Mr. President, I wish to refer to the

6 declaration of Mr. Robert Reid, which has been handed over yesterday,

7 paragraph 7, which describes that "During the scanning and optical

8 character recognition process, portions of the image may be lost,"

9 obviously a potential that any printouts from the electronic system may

10 be, in terms of quality, worse than the original, which may be a bad one

11 anyway.

12 Due to the fact that we received this information very late

13 yesterday night, I'm not in a position to assist the Trial Chamber in its

14 final determination on the issue of the selected documents to the extent I

15 would have been in a position in the event I would have got the list

16 earlier on, and I would have expected to be informed in due time.

17 I wish to express my serious -- my serious concern about this

18 matter, and I do request -- I do request the discussion on the selected

19 documents to be -- to be postponed to tomorrow.

20 I make reference to the situation on the ECMM documents. We had

21 a very similar situation and Defence was granted sufficient time for

22 preparation, and I think the same principles should apply for the

23 Prosecution as well. This is a very unfortunate situation, since it's a

24 waste of court time, and it is a solely and unnecessary cost by the

25 Defence.

Page 6268

1 I tried to find another -- a different solution yesterday night,

2 but I cannot be professionally be prepared to the extent I wish to to

3 discuss these documents for the reasons I outlined.

4 At the very least, the Prosecution reserves its right to at a

5 later point in the course of these proceedings to make additional

6 observations.

7 Thank you very much, Mr. President.

8 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

9 The Chamber has listened to your explanations. You have told us

10 that you received the list late and that you were not able to identify

11 the -- and find the original documents, to check the various points, and

12 to prepare yourself for the adversarial debate that would necessarily

13 ensue, and you are suggesting that we address this matter concerning the

14 list of documents tomorrow.

15 While you were speaking, I took my calculator and I listed 36

16 documents coming from the Hadzihasanovic Defence and 16 from Mr. Kubura's

17 Defence. I note, unless I am mistaken, that there appear to be two

18 documents that appear on both lists, documents 8 and 123, which means that

19 the debate will have to address a total of 50 documents. So it's much

20 less than we originally anticipated.

21 The Judges --

22 [Trial Chamber confers]

23 JUDGE ANTONETTI: [Interpretation] The Judges, therefore, fully

24 agree that the debate on the documents take place tomorrow, so we'll talk

25 about the documents tomorrow, the 50 documents.

Page 6269

1 It would be desirable, however, it seems to me, that the

2 Prosecution tomorrow have in their possession the originals of the

3 documents, which of course exist, and then in the course of the debate we

4 can actually visualise the original documents. Why? You all know in view

5 of your professional experience that a photocopied document does not fully

6 reflect the original of the document. When we are talking about orders

7 coming from the army, there are stamps; sometimes stamps are in colour;

8 the colour does not appear, though of course there are photocopies in

9 colour as well. But in view of the limited resources of the Prosecution,

10 they cannot scan in colour. The colour can be indicative. A document has

11 indicia of reliability if the stamps correspond fully. So there lies the

12 interest in seeing the original document.

13 Of course, it would have been preferable in a more general

14 context that the originals be filed and not copies, but that is perhaps an

15 idealistic approach. But when we are talking about documents, it is the

16 original that should be tendered, for it is the original on the basis of

17 which one should have a debate.

18 So, Mr. Withopf, could you come tomorrow with the originals in

19 your hand. That would be a good thing. Can the Prosecution tell us

20 whether they will in fact be able to come with the originals tomorrow?

21 MR. WITHOPF: Mr. President, Your Honours, if this request is

22 limited to the 50 or so documents the Defence wishes to discuss tomorrow,

23 I anticipate that this would be possible. If the request is, however,

24 extended to all documents, that would be a bit of a challenge, since each

25 and every single document has to be requested.

Page 6270

1 JUDGE ANTONETTI: [Interpretation] No. Let us satisfy ourselves

2 with the 50 documents which we are going to have the debate about on the

3 basis of the original copies. That would already be the first step. For

4 if we have the original, we can better judge the quality of the

5 typewriters used to type these orders and generally a better understanding

6 of the documents. So one could call these external indicia of

7 reliability.

8 So tomorrow we will examine these documents.

9 It would also be desirable, Mr. Withopf, the first six or seven

10 documents come from binder number 1, so it would also be desirable for you

11 to tell us in which binder which document can be found so that we can

12 trace them more easily. This shouldn't be a big problem for the handling

13 of these documents.

14 Leaving aside this question of documents for the moment, we could

15 still continue the discussion on the topics that still remain on the

16 agenda; that is, the question of relevance, the more general problems

17 linked to Rule 89(D). I see "general," though we'll see what the Defence

18 will tell us about the documents. And they may say that if the documents

19 are considered admissible, they may say that this is prejudicial to the

20 accused pursuant to Rule 89(D), but that is just an assumption on my part.

21 Nevertheless, we have to address 89(D) in general terms, which you did

22 refer to in your filing, as several documents in column L, there's an

23 indication of R89(D). So the Defence will give us their views in general

24 terms of how they see 89(D). And the third topic would be linked to the

25 question of the documents which need to be tendered through a witness in

Page 6271

1 the opinion of the Defence. Perhaps they won't say 500 documents, because

2 that would be pointless, but after having thought it over, the Defence

3 perhaps could tell us that with respect to certain documents, those can be

4 introduced only through a witness.

5 By way of an example, let me mention the withdrawn witness,

6 (redacted), whose documents were to be tendered during his testimony.

7 And I think that is a possibility.

8 Mr. Withopf.

9 MR. WITHOPF: Mr. President, can we please go into private

10 session.

11 JUDGE ANTONETTI: [Interpretation] Yes, let's go into private

12 session.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 6272

1 (redacted)

2 (redacted)

3 [Open session]

4 JUDGE ANTONETTI: [Interpretation] We are in open session. Thank

5 you.

6 We are now going to address the third topic, and that is the

7 topic of relevance, unless Mr. Bourgon wishes to intervene on other issues

8 before we address relevance.

9 You have the floor, Mr. Bourgon.

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

11 morning, Madam Judge. Good morning, Your Honour.

12 Mr. President, the Prosecution has just made certain allegations

13 regarding the behaviour of the Defence in preparation for this morning's

14 hearing. It is difficult to respond to these allegations, which we see to

15 be rather serious and absolutely unfounded. However, we feel it is our

16 duty to do so.

17 So, first of all, I shall address the question of numbering on

18 the list provided to the Prosecution.

19 Last week, Mr. President, the Defence made a suggestion to the

20 Prosecution to exchange the electronic list of documents; that is, the

21 lists that were submitted both by the Defence and the Prosecution, so that

22 we can make a joint table of the two lists. The Prosecution accepted our

23 suggestion. We exchanged electronic lists. We drew up a joint table that

24 I have in front of me. And this table does not include the new numbering

25 of contested exhibits. This is the first time -- the first time we saw

Page 6273

1 this numbering was yesterday. When we received those documents, we

2 noticed that a new system of numbering existed, because in front of each

3 item there was a page saying "Prosecution number, contested exhibit." We

4 used the numbers that were before the Chamber always, either the internal

5 number of the Prosecution, the PT number, or the ERN numbers, and we

6 continued to use that numbering until yesterday morning, when we received

7 the list of the Prosecution, which was amended and which contained this

8 new numbering of contested exhibits.

9 Therefore, the use of this list does not provoke any confusion or

10 delay and that it is very easy to refer to the documents identified by the

11 Defence. We feel it is a minor point.

12 What is more important, Mr. President, is that yesterday the list

13 of documents were given to the Prosecution between 6.00 and 7.00 p.m. in

14 writing by us and orally by the other Defence team. However, we have to

15 see what the point of those lists were. They were never a condition, a

16 precondition. The aim of the list was twofold: First, to allow the

17 Defence to reduce the number of exhibits to be discussed to avoid any

18 waste of time. And yesterday I told the Chamber that we had more than 80

19 documents but that we would do our best to reduce the number of exhibits

20 so as to save time, and to be certain that we can complete the discussion

21 on time, and that is what we did.

22 When my learned friend telephoned at 6.30 p.m. yesterday, I told

23 him, "I'm working on it. I'm almost done." From the end of the hearing,

24 we worked hard to reduce the list and to act in a professional manner and

25 with all due diligence.

Page 6274

1 The second reason for this list was to allow everyone to be able

2 to select the document from the binder and to be ready for this morning.

3 There was never a question of preparing the list in advance. These

4 hearings have been planned a long time ago, and the Prosecution should

5 have been ready yesterday and today to discuss each of the documents that

6 is in front of this Chamber. Today the Prosecution tells us that they are

7 not ready to discuss the documents and they are endeavouring, which is

8 rather disturbing for us, that this is the fault of the Defence. It is

9 not the fault of the Defence.

10 So, Mr. President, we should like to underline an important

11 detail. My learned friend said that he needed time to bring all the

12 documents to the Chamber. It is true that we discussed some 50 documents,

13 but the Defence underlined that it is not a short list of contested

14 documents but it is an example to allow the Chamber to make a

15 determination on all the contested documents. So these are just examples

16 which the Chamber could use when making its ruling. So the list of

17 contested documents has not been reduced.

18 Finally, Mr. President, we quite agree with the Chamber that we

19 continue with the oral arguments on the two topics. I think that we can

20 cover relevance and then address the two other points, 89(D) as well as

21 the need for calling witnesses. And I think that these two topics can be

22 addressed together and covered quickly so that both parties can be ready

23 for tomorrow's hearing.

24 Thank you very much.

25 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.

Page 6275

1 Mr. Dixon.

2 MR. DIXON: Thank you, Your Honours. Just for the record, I do

3 wish to clarify that the Defence team for Mr. Kubura sent an e-mail

4 yesterday to your legal officer and to Mr. Withopf of the Prosecution at

5 17.14. I have a copy of the e-mail here in front of me, Your Honours.

6 Unfortunately, the name of Mr. Withopf was spelt incorrectly and that's

7 why the e-mail didn't reach him at 17.14. It did reach Your Honours'

8 legal officer at that time, and it was as a result of that that a phone

9 call was made by my learned friend to myself and I gave him the numbers

10 over the phone to ensure that he had the documents and the information

11 about them as soon as possible.

12 I just wish to make that clear for the record, because we did try

13 and ensure that the information was imparted as quickly as possible.

14 And I do also wish to add that I am, like my learned friend

15 Mr. Bourgon, somewhat surprised by the Prosecution raising this issue when

16 it is really a matter of them having the responsibility of explaining to

17 Your Honours, as Your Honours have said on many occasions, why all of

18 these documents should be introduced. They have been asked to come to

19 Court with all their documents, and the onus is on them to explain why

20 these documents are authentic and why they are relevant.

21 In relation, for example, to the illegible documents, we -- we

22 indicated in our first response many weeks ago which were the illegible

23 documents, and Your Honours ordered the Prosecution to explain why

24 documents were illegible. This is just one example.

25 But in the responses that were given yesterday, there were many

Page 6276

1 questions left unanswered by the Prosecution, and that's one of the main

2 reasons why we've chosen as illustrations some documents, Your Honour, to

3 show Your Honours what we believe the problems to be, not only to leave it

4 at the theoretical level but to refer to certain documents as examples in

5 order to try and move the process forward.

6 I'm grateful, Your Honours.

7 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Dixon, in the numbers

8 that you have mentioned in your list, 4, 6, 8, 9, are these numbers the

9 same as those of Mr. Bourgon and are they the same numbers as the ones the

10 Prosecutor has in regard to the OTP -- with regard to the OTP number? Is

11 it the same column as the one the Prosecutor has? I think that is the

12 case, but could you confirm this for me, because number 4 -- take number 4

13 as an example. What does it correspond to, in your opinion?

14 MR. DIXON: Your Honour is correct. We have used the contested

15 exhibit number, which is the first number on the Prosecution's

16 consolidated list. It's the number that appears on the front of each

17 exhibit, so that it's absolutely clear which -- which document we are

18 referring to.

19 JUDGE ANTONETTI: [Interpretation] Very well. Just a slight

20 clarification, Mr. Dixon. You said that it was at 17.14. The document

21 says "6.14." Is it a matter of GMT time in your document? Your document

22 says "18.14" and not "17.14."

23 MR. DIXON: Your Honour, the -- the copy of the e-mail that I

24 have, yes, is 17.14, and I do recall that it was at that time, at 15

25 minutes past 5.00 yesterday afternoon that we did send the e-mail.

Page 6277

1 JUDGE ANTONETTI: [Interpretation] On the document I have, it says

2 "6.14," not "17.14." The legal officer will show you that it says

3 "6.14." The usher will show you. You have "17.14" noted; I have "6.14"

4 noted.

5 MR. DIXON: Perhaps I could exchange this document for the one

6 I'm getting to indicate why I mention 17.14, which was the time that we

7 did send the e-mail.

8 JUDGE ANTONETTI: [Interpretation] Very well. Yes, in fact the

9 document that you have says "17.14," and my document says "6.14." There's

10 a mystery. You're quite right. The document with "17.14" is the one I've

11 shown you, but it also says "6.14." There's something mysterious here.

12 MR. DIXON: Well, it's probably the clock in the computer which

13 is set for one time and the other computer is set for a different time.

14 JUDGE ANTONETTI: [Interpretation] Yes, it's a problem of

15 summertime.

16 MR. DIXON: Your Honour, I can confirm that when the e-mail was

17 sent, I was present, that it was sent at 17.14.

18 Thank you, Your Honour.

19 JUDGE ANTONETTI: [Interpretation] Very well. So in your opinion,

20 you think that the document can -- consider your document to be

21 reliable . The Chamber can consider the document to be reliable.

22 I think that the Prosecution wanted time for tomorrow,

23 Mr. Bourgon, not because of the delay but I think it is a matter of

24 substance -- matters of substance that they wanted to raise.

25 Mr. Withopf, would you like to respond to this, or would you

Page 6278












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6279

1 confirm that the Trial Chamber has said? You want time to prepare

2 yourself for the case -- for the sake of the substance, not because of the

3 form.

4 MR. WITHOPF: Mr. President, if I may please very briefly respond

5 to this issue.

6 After the submission of my learned colleagues, the facts remain

7 the same: The Prosecution got the list very late yesterday night.

8 Unfortunately, due to the wrong spelling of my name, I haven't received

9 any e-mail from the Kubura Defence yesterday.

10 It was made very clear from the first beginning by the Trial

11 Chamber that categories of documents would be discussed and not particular

12 documents; therefore, there was no need for the Prosecution at any point

13 in time to prepare for each and every single document, as Defence is

14 suggesting. "Categories" was the key word. Therefore, I certainly

15 disagree with any suggestion by my learned friends from the Defence that

16 the Prosecution should have been in a position to discuss each and every

17 single document to each and every extent necessary.

18 I'm certainly in a position to, in compliance with the Trial

19 Chamber's request, to discuss the categories and I'm certainly in a

20 position and I'm very well prepared to discuss all three issues which are

21 on the agenda today. I am, however, due to the fact that I got the list

22 only very late yesterday night, I am not in a position to assist the Trial

23 Chamber to the extent I would like to in respect to the particular

24 documents which need to be discussed at the particular and at the specific

25 request of Defence counsel. Therefore, I again request postponement of

Page 6280

1 the discussion for these documents until tomorrow.

2 JUDGE ANTONETTI: [Interpretation] Very well. As far as the

3 documents are concerned, as has been said, we'll discuss them tomorrow.

4 So we can address the issue of relevance, which is of crucial importance.

5 I'll now give the floor to Mr. Withopf, who will present his

6 explanations about relevance, which would allow him to tender all these

7 documents into evidence. If he intends to tender these documents into

8 evidence, it is because he believes all these documents to be relevant.

9 So this is what we would like to hear Mr. Withopf comment on, and then the

10 Defence will present its views on the relevance of the documents

11 concerned. And naturally, if the issue of relevance has to be dealt with

12 on the basis of individual documents, this will be done tomorrow. We can

13 then deal with the documents in question.

14 Mr. Withopf, you may proceed to comment on the issue of

15 relevance.

16 MR. WITHOPF: Mr. President, Your Honours, I'm going to address

17 the issue of relevance following the challenges Defence counsel have made

18 in that respect.

19 Defence quite often in some sort of stereotype statements has

20 contested the relevance of documents for a number of reasons, including -

21 and these appear to be the four main reasons - number one, outside the

22 time frame of the indictment or the same reason but a different language

23 only, irrelevant by virtue of date; number two, external to 3rd Corps and

24 7th Muslim Mountain Brigade; the third issue, the third challenge is not

25 connected to allegations contained in the indictment, or phrased

Page 6281

1 differently, sometimes irrelevant in substance; and number four, lacking

2 information in respect to the sending and/or receiving of the document.

3 Mr. President, Your Honours, the first two issues have already

4 been addressed, at least partially yesterday in respect to the time frame

5 of the indictment and any documents that are external to 3rd Corps and

6 7th Muslim Brigade. Therefore, I may please briefly summarise the

7 Prosecution's position on these two issues.

8 Outside the time frame of the indictment. This general

9 observation, in the view of the Prosecution, must be rejected for a number

10 of reasons. And I'm going to explain the reasons. Defence is limiting --

11 is limiting the period of the indictment to the period between the first

12 crime-base incident, which was Dusina on the 26th of January, 1993, and

13 the last crime-base incident, which was Vares in early November 1993. In

14 the view of the Prosecution, this doesn't appear to be the right approach,

15 in particular not in the context of a case which is based on

16 responsibility pursuant to Article 7(3) of the Statute of the Tribunal.

17 Mr. President, Your Honours, I am going to give you a number of

18 examples. The issue of any proposed exhibits or proposed documents before

19 to the crime base, prior to the first crime-base incident in the

20 indictment. Any issues in relation to notice and knowledge can be proven

21 based on documents that show that the one or the other accused did know

22 that there were problems with certain military units or certain elements

23 within military units under their command.

24 The accused Hadzihasanovic was the 3rd Corps commander from 14

25 November 1992 onwards. The accused Kubura was the 7th Muslim Mountain

Page 6282

1 Brigade Chief of Staff from 1st January 1993 onwards and the assistant

2 chief of staff for operations and instruction matters from 11th December

3 1992 onwards. In exactly -- in exactly these capacities, both accused got

4 to know about certain facts which will help the Prosecution to establish

5 that they had notice and knowledge of facts, which in our view are related

6 to aspects of failure to prevent and/or to punish.

7 A second issue that relates to any documents which have a date

8 that is prior to 26 of January, 1993. Such documents - and there are

9 quite a few ones - which show the establishment of certain military units

10 that do fall within the command structure of the accused, in particular

11 the accused Hadzihasanovic, are relevant because they touch at the very

12 least on the issue of superior and subordinate relationship.

13 If I may, please, show one example. The issue of the

14 subordination of the Mujahedin. It's the Prosecution's case that the

15 Mujahedin arrived starting from August 1992 onwards, and it's the

16 Prosecution's case that the Mujahedin were incorporated within the 3rd

17 Corps structures after its establishment on 18 August 1992, after the

18 takeover of command of 3rd Corps by the accused Hadzihasanovic on

19 14 November 1992, and after the subordination of the 7th Muslim Mountain

20 Brigade on 19 November 1992. These are all dates outside the indictment

21 period as defined by Defence and such documents are obviously of high

22 relevance.

23 I already yesterday, Mr. President, Your Honours, addressed the

24 issue of the responsibility to punish. The responsibility and the duty to

25 punish doesn't end with the last crime-base incident. This responsibility

Page 6283

1 and duty continues at the very least as long as the accused were in a

2 position to punish, meaning having had a command function resulting in a

3 superior-subordinate relationship. This applies to both accused, in

4 particular, however, to the accused Kubura, who was commander of the

5 7th Muslim Mountain Brigade until mid-March 1994.

6 It is the Prosecution's submission that the time frame of the

7 indictment as defined and limited by the Defence can be an indicator as to

8 whether documents are relevant or irrelevant. It depends on the concrete

9 contents of such documents.

10 In order to finish my submission in respect to this particular

11 aspect in respect to relevance, I wish to show an example which shows the

12 absurdity of the Defence position. If today somebody from within 3rd

13 Corps would write me a letter dated the 28th of April, 2004 and in this

14 letter would admit a number of crimes that do fall within the indictment

15 period, 1993, and informing me about the fact that he had informed the one

16 or the other accused about these crimes in all detail, if one would follow

17 the Defence submission and the Defence suggestion, such a letter, such a

18 document would not be relevant under the criteria "irrelevant by virtue of

19 date. "

20 If I may move on, Your Honours, to the second Defence concern or

21 challenge; namely, external to 3rd Corps HQ and 7th Muslim Mountain

22 Brigade. This issue has also already touched upon yesterday. I am making

23 reference to what we said in the course of the yesterday's court session.

24 To further elaborate on this issue, however - and I will again show

25 examples that show the full -- or show how problematic such an approach

Page 6284

1 appears to be - there is number 181 of the list, which is number 90 on the

2 list with the contested documents; there is an interview with the accused

3 Hadzihasanovic, which Defence identified as external to 3rd Corps HQ and

4 7th Muslim Mountain Brigade. For the sake of the correctness of the

5 transcript, I, however, wish to mention that the box "relevance" is not

6 ticked by the Defence.

7 This argument, however, has been used for a number of documents

8 which Defence considers not being relevant.

9 In the course of the interview I just mentioned, the accused

10 Hadzihasanovic was asked by the interviewer on 1st of December, 1993:

11 Question: You are one of the most experienced officers of the Army of

12 Bosnia and Herzegovina in the command and control of units in such

13 fighting." And the accused answers by saying: "That's right." Obviously

14 relevant, Mr. President, Your Honours. And in the same interview the

15 accused Hadzihasanovic gives a full account of his military career; again

16 obviously relevant.

17 I see my learned colleague on his feet. He may have any

18 observation to make.

19 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Bourgon.

20 MR. BOURGON: [Interpretation] Thank you, Mr. President. I just

21 want to note, as my colleague has said, the box concerning relevance

22 wasn't ticked in the case of this document, so I really don't see what the

23 relevance of my colleague's arguments is.

24 Thank you, Mr. President.

25 JUDGE ANTONETTI: [Interpretation] Do continue, Mr. Withopf.

Page 6285

1 MR. WITHOPF: Thank you very much, Mr. President. And as I said,

2 I have made for the sake of the correctness of the transcript this

3 observation for myself.

4 If I may, please, address the third issue, the third challenge by

5 the Defence, not connected to allegations contained in the indictment or

6 phrased differently sometimes, irrelevant in substance.

7 The Prosecution in its filing of 19 April 2004 has detailed the

8 relevance of such documents in making reference to specified paragraphs in

9 the indictment. I am explicitly making reference to this filing.

10 What I, however, wish to emphasise -- what we wish to emphasise

11 again is that this case is obviously a circumstantial case in many

12 areas -- in many areas related to evidentiary issues. This includes in

13 particular all matters related to Article 7(3) of the Tribunal's Statute.

14 This implies that a document, that based on a view focussing on one single

15 document only, such an approach may lead to the conclusion that this

16 particular document may not be relevant. However, this case is a case

17 which puts together bits and pieces and pieces of a puzzle to a broader

18 picture and the broader picture in the view of the accused -- in the view,

19 sorry, of the Prosecution will show the guilt of the accused. Therefore,

20 any document - and we wish to emphasise this again - can only be judged

21 upon after having reviewed all other documents and series of documents, as

22 I mentioned yesterday, may be a very particular issue in this case.

23 The fourth main challenge, or the fourth main concern by Defence

24 was lacking information in respect to the sending and/or receiving of the

25 document. This criteria, in the submission of the Prosecution,

Page 6286

1 Mr. President, Your Honours, can -- can't be one to be used in the

2 determination of the relevance of a document. The fact that a document is

3 lacking such information can touch upon the probative value only; the

4 relevance, however, is not concerned.

5 Again, just an example to illustrate this: If there is an order

6 of one of the accused requesting information in respect to a certain

7 allegation that a crime may have been committed, such a document is

8 obviously relevant in order to prove that the respective accused had

9 notice and knowledge of the crime, at the very least inquiry knowledge.

10 In the submission of the Defence, such a document should not be admitted

11 into evidence if it does not contain a statement as to whether it had been

12 sent and/or received. In the view of the Prosecution, this can't be true

13 for the only reason that if a document is signed by the accused, it proves

14 irrespective as to whether the document was sent or received, irrespective

15 of this fact that the respective accused had knowledge of such crimes.

16 Again, thinking through all four challenges, through all four

17 aspects of the challenges of Defence, it appears that they are not really

18 convincing ones.

19 I would be prepared, Mr. President, Your Honours, to continue

20 with any issues related to Rule 89(D); however, I understand the Trial

21 Chamber wants first to give the Defence an opportunity to respond on this

22 issue.

23 JUDGE ANTONETTI: [Interpretation] Very well. I will give the

24 floor to the Defence. But as I usually do, I would like to summarise the

25 position you have expressed to make everything clear for everyone; in

Page 6287

1 particular, for those who are following these proceedings on the outside.

2 As far as the relevance is concerned, the Prosecution mentioned

3 four items: Firstly, they mentioned the time frame referred to in the

4 indictment; secondly, they mentioned documents that are external to the

5 3rd Corps; the third point concerned the fact that no reference is made to

6 the allegations contained in the indictment; and the fourth point concerns

7 the lack of information.

8 With regard to the time frame in the indictment, Mr. Withopf

9 pointed out that the 26th of January in Dusina is when the time frame

10 starts and continues up until November 1993 in Vares, but the charges and

11 Article 7(3) of the Statute provide, as far as the penal responsibility of

12 a superior is concerned, provides that a superior has to punish and

13 prevent crimes and such prevention must take place before the violation is

14 committed. So an offence committed on the 26th of January -- in the case

15 of an offence committed on the 26th of January means that the Prosecution

16 will naturally have to base itself on what happened before -- will have to

17 refer to what happened before that date.

18 And in addition, protective measures have to be taken - and this

19 is the responsibility of the superior - such measures must necessarily

20 take place after the event itself, after the crime itself. So the

21 Prosecution provided us with an example: Imagine the Prosecution

22 receiving a letter from someone who mentions crimes committed, for

23 example, in Dusina or elsewhere. According to the Defence's theory, this

24 letter would have no relevance. The Prosecution provided this example to

25 show that the arguments concerning the time frame referred to in the

Page 6288

1 indictment can't be accepted.

2 With regard to the second point, documents that are external to

3 the 3rd Corps, the Prosecution told us that the Defence's approach is very

4 problematic and the Prosecution gave as an example the interview given by

5 one of the accused. This interview, even if it didn't come from the

6 3rd Corps -- but if the interview was given by someone from the 3rd Corps,

7 you could consider him to be integrated within the 3rd Corps; but even if

8 it was from the 3rd Corps, the Prosecution tells us that you could

9 consider the interview to be relevant on the basis of its substance, and

10 as far as documents external to the 3rd Corps are concerned, it's

11 necessary to take into consideration, take into account the content.

12 That's the second point.

13 As far as the third point is concerned, it's true that the

14 Defence with regard to the lack of references to the indictment, we were

15 told that the allegations weren't contained in the indictment, is what the

16 Defence stated. The Prosecution has claimed that in the documents that it

17 has listed, each document in the column concerning relevance contains

18 references to the relevant paragraph in the indictment. As an example,

19 document number 1, which was contested, reference for that document is

20 paragraph 17 - 20. So the Prosecution has told us that in its document

21 they made reference to all appropriate references in the indictment.

22 And the next point concerns the lack of information. The Defence

23 orally informed us, but also in writing, that the documents didn't have

24 the dates when the document was sent, received, didn't mention the

25 addressees, et cetera, so there was certain information missing.

Page 6289

1 Mr. Withopf has said - and the Defence will respond to what he has said -

2 that the question of sending and receiving a document is a secondary

3 question in relation to the contents of the document itself.

4 The Prosecution provided us with an example: Let's imagine that

5 there is an order issued by one of the accused requesting that certain

6 investigations be launched or requesting information if a crime was

7 committed. In such a case, the contents of the order itself prove that

8 the accused was aware of a crime, and given the existence of this

9 document, it's a relevant document. As far as the distribution of this

10 document is concerned or the reception of this document, in view of the

11 Prosecution, this is a minor problem in relation to the contents of the

12 document, since the contents of the document show that the person who

13 drafted the order was aware of an event or requested information about the

14 event concerned.

15 So in general terms, this is the Prosecution's position in

16 relation to the four points that relate to relevance. The Defence will

17 express its position, since the Prosecution has presented us with detailed

18 explanations concerning the time frame in the indictment and their

19 position was very specific and they provided examples with regard to the

20 other points.

21 Who will be the first person to intervene? I think it will be

22 Mr. Bourgon, who has just taken his headphones off. And as this will take

23 some time, as his presentation will be lengthy, he is preparing himself.

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

25 The arguments of the Defence regarding relevance, Mr. President,

Page 6290

1 will not be very lengthy. For us relevance is one of the factors that

2 appears in Rule 89(C) of the Rules of Procedure and Evidence, which says

3 that: "A document is admissible if it is both relevant and has a minimum

4 of probative value."

5 Yesterday in the course of my submissions, I gave you a

6 definition of "relevance", as can be found in the Delalic ruling, which

7 says that: "Relevance is the relationship that exists between two facts

8 and when the probative value would be the tendency of evidence to

9 establish the case for which it is called by the Prosecution."

10 Once again, we refer to the Delalic decision, which tells us that

11 at the stage of admissibility, the standard shouldn't be too high, because

12 it is up to the Judges to attach the weight they wish to a document

13 subsequently.

14 In the opinion of the Defence, Mr. President, there are three

15 criteria that can assist the Chamber to establish whether a minimum level

16 of relevance has been attained at the admissibility stage. First of all,

17 there's the question of substance. Does the document proposed have any

18 connection with the proposition that the Prosecution is trying to

19 establish? Then we also come to the question of time; that is, whether a

20 document proposed deals with an element occurred [as interpreted] prior to

21 the indictment or after the ratione temporis of the indictment. Finally,

22 the third criteria in connection with relevance is when the reliability of

23 the document is so weak that it affects relevance; this is drawn again

24 from the Delalic decision of 1996.

25 As you have been able to note, Mr. President, in our list we make

Page 6291

1 very few challenges regarding the relevance of documents and we have

2 adopted a highly liberal approach to this subject, especially with respect

3 to substance. Virtually all the documents contested by the Defence on

4 grounds of relevance were contested on the grounds of the time. If we're

5 talking about the army and roughly the time period, then it's fine. So

6 our approach was very -- a very liberal one, and we contested very few

7 documents on the grounds of a link between the fact established and the

8 point that the Prosecution wishes to make.

9 Regarding the time frame, we have challenged a number of

10 documents, and I mention as an example a quick list of documents which the

11 Defence is contesting on the grounds of relevance because of the time.

12 There's document 51 or PT53. I'm using the internal numbering of the

13 Prosecution as well as the PT numbers. That is the list I've been working

14 with from the beginning. Exhibit 116 or PT120, Exhibit 117, 118, 119,

15 123, 180, 187, 201, 210, 214, 251, 292, 310, 339, 386, 387, and 808, 809,

16 810, 811, 826, 849, and finally 934 to 944. Those are the documents which

17 the Defence is contesting on the grounds of relevance because of the date

18 of the document, of the time frame.

19 Regarding the other points addressed by my learned friend, I

20 would specifically address the question of time frame and date because

21 that is the main issue raised by my colleague from the Prosecution. The

22 Defence would refer to a ruling concerning 7(3) of the Statute, and that

23 is that there is a link between the date when a person occupied a command

24 position and his responsibility pursuant to Article 7(3) of the Statute.

25 So a person may have been aware of a fact on a date prior to the

Page 6292

1 indictment, but that person at that point in time did not hold a command

2 position. And what is even more important is the period after the

3 indictment. By way of example: The accused General Hadzihasanovic was no

4 longer commander of the 3rd Corps and no longer had a command position as

5 of the 1st of November, 1993. From that date onwards, his responsibility

6 regarding all offences committed within the Army of Bosnia-Herzegovina

7 changes.

8 To use the example given by my learned friend: If today in 2004

9 General Hadzihasanovic was still a member of the Army of Bosnia and

10 Herzegovina and were to receive today a letter containing an admission

11 regarding a crime committed in 1993, certainly in the sense of law,

12 strictly speaking he has a certain responsibility with respect to that

13 letter, but his responsibility in the context of the position that he held

14 in 1993 are no longer a command position. So if a person receives such a

15 letter in 2004 and does nothing with that letter, he could easily be

16 charged but of another offence that would not stem from Article 7(3) of

17 the Statute. That is the temporal plane strictly speaking.

18 But there's also a question of substance. If General

19 Hadzihasanovic on the 1st of November, 1993 was no longer the commander

20 and no longer had the means, the ability to take reasonable and necessary

21 steps to prevent or to punish, then that is an important distinction, but

22 especially if the Chamber focuses on the documents proposed by the

23 Prosecution, one must see the events that those documents address, to what

24 extent that is linked to the ability to prevent or punish.

25 And for these reasons, Mr. President, the number of documents

Page 6293












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6294

1 that I referred to a moment ago are mostly -- refer to dates that occurred

2 after General Hadzihasanovic changed his position, and that was on the 1st

3 of November, 1993.

4 Regarding the second point raised by my colleague, that is,

5 documents external to the 3rd Corps, we submit, Mr. President, that this

6 is not related to the relevance of documents and the argument proffered by

7 my colleague. In our opinion, the fact that the date of a document --

8 that a document is external to the 3rd Corps has nothing to do with

9 relevance, but it is a very important point.

10 A third point was the links to the allegations. Is there a link

11 between the indictment and those events? As I have said, the Defence

12 adopted a highly liberal approach and for us, if a document deals with the

13 army in general and the 3rd Corps during the time frame of the indictment,

14 for us it has a sufficient degree of relevance for the document to be

15 admitted. But as we have said, there may be other problems with that

16 document.

17 Finally, the fourth and last point, Mr. President, regarding the

18 lack of information. Once again, Mr. President, we quite agree that the

19 lack of information on a document has nothing to do with relevance and

20 that was not our submission. We did say yesterday, however - and we wish

21 to underline again - that the absence of information is a determining

22 factor when deciding on the admissibility of a document.

23 Finally, I should like to underline the practice of this Chamber

24 with respect to relevance up to the present, because even though during

25 our filings on criteria our approach was very liberal, we would like to

Page 6295

1 point out that if we look at the exhibits admitted up to now - and by way

2 of example, I refer to Exhibit DH44, DH45, DH47, DH48, 49, and 50 - these

3 are exhibits, Mr. President, which are in the file marked for

4 identification only. Why? Because the Prosecution challenged their

5 relevance. We have to be coherent when we are talking about relevance and

6 consistent. We wish to adopt a liberal approach. That's fine. But we

7 feel that the Chamber should, when assessing the relevance of documents,

8 bear in mind the arguments of the Prosecution with respect to relevance.

9 In this connection, Mr. President, I should also like to refer to

10 a Prosecution document dated the 23rd of March, 2004, in which the

11 Prosecution submits its observations regarding questions of judicial

12 notice of admitted facts in other cases. In that document, Mr. President,

13 the Prosecution is proposing by way of example that the treatment of the

14 civilian population by the enemy, the detention of military-age men, why

15 such facts are of relevance. This is paragraph 32.

16 Later on in paragraph -- they tell us: "Even if the HVO

17 mistreated the civilian population, even if the HVO detained Muslim men of

18 military age, how can those factors affect the responsibility of the

19 accused and at best those facts are of no assistance to the Chamber."

20 Later on we are told: "The preparation and the resources, the

21 arming of their own forces and of the enemy forces are equally facts which

22 are not relevant."

23 I will stop there, Mr. President, simply to indicate that in

24 spite of the liberal approach of the Defence regarding relevance, the

25 Prosecution appears to have a far more restrictive approach to the same

Page 6296

1 issue. And I think the Chamber should bear this in mind when rendering

2 its ruling.

3 A final comment, Mr. President, has to do with the relevance of

4 facts. My colleague listed a number of examples during his submissions,

5 but he said something of -- which is very interesting. He said, "We are

6 in a circumstantial case," that evidence is circumstantial, which means

7 that the Prosecution believes that they have no direct evidence that the

8 accused did not fulfil their duty and did not take the reasonable and

9 necessary steps to prevent or punish. This is something of the greatest

10 importance, Mr. President, when determining the question of relevance of

11 the facts submitted.

12 Thank you, Mr. President.

13 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.

14 The Prosecution will have occasion to respond to these points,

15 but before I give the floor to Mr. Dixon, I shall nevertheless summarise

16 your position so that we are quite clear about it.

17 Regarding relevance, the jurisprudence that you rely on is 89(C)

18 and the Delalic decisions when "relevance" is defined as

19 follows: "Relevance is the relationship between two facts." And on that

20 basis, you said that for you, when it comes to relevance, the standard

21 should not be too high, but for a minimum standard at least three criteria

22 have to be met, and that is whether the document proposed meets the

23 criteria of time and reliability, and if a document is not reliable, it

24 affects relevance.

25 Regarding the minimum standard and the three criteria, you feel

Page 6297

1 that you have adopted a highly liberal approach when it comes to

2 relevance. And as an illustration of what you're saying, you indicate

3 that in fact you did not challenge more than 35 documents. And I added up

4 the numbers that you quoted, and that in your view the debate should

5 focus, rather, on the question of the time frame, the period before and

6 the period after. And by way of example, as an argument of substance, you

7 say that your client was no longer at the head of the 3rd Corps as of the

8 1st of November, 1993. So you're illustrating your submissions with this

9 very precise fact, and that is that he was no longer the commander of the

10 3rd Corps after the 1st of November, 1993.

11 As for the three other points addressed by the Prosecution - that

12 is, documents external to the 3rd Corps - you do not challenge them. In

13 fact, one could say that globally you are in agreement.

14 As for the third point that has to do with allegations related to

15 the indictment, here again your stand is quite open-minded and liberal.

16 And as for the fourth point on the shortages in the documents,

17 you say that it is up to the Chamber to judge but that for you this

18 question is not directly linked to relevance, that is, the missing

19 information on documents.

20 And finally, with regard to relevance, you have taken a liberal

21 approach, and to contradict the Prosecution you tell us that they did not

22 adopt a similar approach because they objected to your tendering documents

23 DH44, 45, 47, 48, 49 and 50 because those documents which were marked for

24 identification were not relevant in the opinion of the Prosecution.

25 You also underlined the fact that the Prosecution could be

Page 6298

1 contradicting itself in view of the written filings by it in the motion

2 with respect to judicial notice of certain facts, in which the

3 Prosecution - and you mentioned examples - appears to be in contradiction

4 with what it is submitting. But generally, to summarise your position,

5 you are telling us that you adopted a liberal approach but that in fact

6 for you the main debate is on ratione temporis, that the time frame is

7 important for you, and that you tell us that as of the 1st of November,

8 1993 your client cannot be charged with anything because he no longer held

9 a command position.

10 This would be a summary of your submissions mainly for the people

11 watching these proceedings.

12 I will now give the floor to Mr. Dixon, who will certainly also

13 address the question of time frame.

14 MR. DIXON: Thank you, Your Honours.

15 I'm conscious of the time, Your Honour. I will be a little bit

16 longer than two or three minutes, and it might be better to have a break

17 first. Thank you.

18 JUDGE ANTONETTI: [Interpretation] Very well. The Chamber was so

19 engrossed in expectation of what you were going to tell us that I forgot

20 the time. You brought us back to reality, and that is why I shall have to

21 interrupt the hearing for technical reasons, and we will resume at five to

22 11.00.

23 --- Recess taken at 10.26 a.m.

24 --- On resuming at 10.57 a.m.

25 JUDGE ANTONETTI: [Interpretation] Very well. We will now resume.

Page 6299

1 And Mr. Dixon can take the floor.

2 MR. DIXON: Thank you, Your Honours.

3 On the topic of relevancy, Your Honours, the first point which we

4 wish to make is that we are somewhat at a loss as to why, even though the

5 Prosecution has been given an opportunity to explain the relevance of the

6 documents, and that was indeed Your Honours' order, that they should

7 explain why the documents are relevant, today we still have not heard from

8 the Prosecution why documents and why particular documents are relevant to

9 the case.

10 Your Honours will recall that we noted when this matter first

11 arose that only just over 200 documents were listed in the Prosecution

12 pre-trial brief which are now on the contested list of exhibits, where

13 some explanation was given for why the document was relevant. In many

14 cases, in our view, an insufficient explanation, sometimes simply a

15 footnote, but nevertheless the document was referred to within the context

16 of the allegations the Prosecution has to prove. So we are still waiting

17 for their explanations for the other 400 or so documents, as to why they

18 are relevant.

19 The Prosecution did in its submission -- written submission refer

20 to certain paragraphs of the indictment for different documents. However,

21 Your Honours will in all likelihood note that those are very general

22 paragraphs that are referred to. Sometimes all of the paragraphs within

23 which the charges are located in the indictment are referred to. And in

24 our submission, they do not assist us any further in understanding what is

25 the Prosecution's case in respect of these documents.

Page 6300

1 It may well be that some of them are referred to in the half-time

2 submission response of the Prosecution or in the closing argument, but by

3 that stage the Prosecution would have closed its case and also the

4 Defence, certainly in the case of the closing argument, would have

5 presented its case as well.

6 In our view, the burden lies on the Prosecution to set out what

7 its case is in relation to these documents and that we would then be in a

8 position to respond in more detail.

9 Your Honour, the applicable Rule - it's been mentioned a few

10 times for the admissibility of documents, and I do wish to refer to it

11 again, given the question mark that was raised by Your Honours yesterday

12 over my submission that probative value is essential as an ingredient at

13 this stage of admissibility - is Rule 89(C), which says that: "A Chamber

14 may admit any relevant evidence which it deems to have probative value."

15 So the Rule is, in our submission, very clear, Your Honour. In order to

16 admit evidence, it has to be relevant, and it must be deemed to have

17 probative value.

18 Thereafter, the weight to be attached to the document or the

19 extent of the value to be given to the document is a separate matter

20 altogether. And as my learned friend has indicated, that may well depend

21 on other documents and cross-referencing to other evidence.

22 But when the document is looked at on its own, the test to be

23 applied is whether it is relevant and whether it has probative value.

24 Your Honours -- and in our submission of the 19th of April, when

25 we filed a response to the Prosecution consolidated exhibit list, we set

Page 6301

1 out there what we believe the test to mean; namely, that there must be a

2 link established between the proposed exhibit and an issue which the

3 Prosecution must prove as part of their case, an allegation or an element

4 of the offence. There must be a link between the document and an issue

5 that must be proved. And an issue that is indeed in dispute, there's no

6 need to introduce documents about issues that are not disputed or that do

7 not have to be adjudicated upon. And that secondly, the document has a

8 value in that it can assist the Chamber in deciding upon that issue in

9 dispute.

10 In our submission, the threshold is not a very strict or higher

11 one for the purposes of admissibility, but there is nevertheless a

12 threshold, that of relevance and that of probative value. And in our

13 view, the reason for that threshold is because we are in a unique system

14 here, not a civil-law system, not a common-law system, if we were in a

15 civil-law system, well, many of these problems would not arise, because as

16 Your Honours are well aware, the investigating judge would have collected

17 all these documents, and they would have officially and formally been

18 brought into the case file, and the Prosecution and Defence would have

19 been part of that process from the beginning. But we're not in that

20 situation here. One of the parties in an adversarial system has collected

21 these documents. The Defence and Your Honours were not part of that

22 process, and hence there is a need to closely scrutinise the documents

23 that we have before us and determine whether they meet the threshold of

24 Rule 89(C).

25 We're also not in a pure common-law system where it would be the

Page 6302

1 usual practice to have a witness statement with each and every document or

2 group of documents that is collected by the police and the Prosecution,

3 with the Defence able to indicate whether they contest that material and

4 whether it should be brought live before the jury or a trial judge.

5 So in our submission, Your Honours, the need to closely observe

6 the provisions of Rule 89(C) is paramount in a system which is not either

7 one or other of the mainstream traditional procedural systems.

8 Your Honour, to move on, then, to the specific categories of

9 relevance. My learned friend, Mr. Bourgon, has once again touched on many

10 of them in great detail. I don't wish to repeat what he has said. The

11 one, of course, that is very important for Mr. Kubura is documents that

12 are dated outside the time period of when he was in command or allegedly

13 responsible for subordinates who may have committed offences. And that

14 quite clearly is from 1 April 1993, not January but 1 April 1993, until -

15 and the Defence doesn't dispute this - a point in time in early 1994.

16 That is the time period within which he can be charged for offences

17 allegedly committed by his subordinates.

18 In our view, the Prosecution has misunderstood the submission

19 we've made in this regard. We have never said that documents outside of

20 that time period are as a matter of principle absolutely to be excluded.

21 Our submission is that if a document is dated outside of the period of

22 command, which is 1 April 1993 into early 1994, that is dated outside of

23 that period, then it's for the Prosecution to show why that document is

24 relevant to the period of command. In our view, that threshold must be

25 relevant to the crimes that the Prosecution alleges were committed during

Page 6303

1 the period of command when Mr. Kubura is able to be held responsible under

2 the jurisprudence of the Trial Chamber. And I refer to the Appeals

3 Chamber decision in this case on that point.

4 So there has to be a clear nexus between documents outside of the

5 time period of his command and crimes that were committed during the

6 period of his command with which he is charged in the indictment.

7 So Mr. Withopf is absolutely correct that if there was a

8 confession in 1995 about crimes committed during the period of command,

9 that document would be relevant and would be admissible. The Defence

10 would have no objection to such a document being admitted. But the

11 Prosecution doesn't have those kinds of documents. What the Prosecution

12 has, for example, - and these are some of the documents we will refer to

13 tomorrow - is a number of orders in January 1993 issued by Mr. Koricic,

14 who was then the commander of the 7th Brigade, in relation to, for

15 example, the music school. None of the alleged crimes in the music school

16 are referred to in those orders. Mr. Kubura is not referred to in those

17 orders. He's not even on the list of people to be sent those orders. And

18 we are at a loss as to why it's necessary to introduce those documents

19 when they are outside of the time period of Mr. Kubura's alleged command

20 time and when they do not have any relevance to any of the alleged crimes,

21 which, for example, the Prosecution say took place at the music school.

22 And there are many such documents. There are documents that date even

23 after 1994, in 1995, which on their face bear no connection to the alleged

24 crime base. And in our view it is only fair and reasonable that those

25 documents are excluded, unless the Prosecution can explain to us why it

Page 6304

1 wishes to reply upon those documents, in which case the Defence will then

2 be on notice as to what the relevance of the document is and we can

3 prepare our defence accordingly.

4 We requested that the Prosecution indicate what the relevance of

5 those documents are. Your Honour, there are about 58, 59 of those

6 documents which fall either before the period commencing 1 April 1993 or

7 after early 1994, and we can provide a list of those so that it would make

8 it a lot easier for Your Honours to be able to address those documents. I

9 will tomorrow refer to -- to some of them by way of example to show the

10 lack of relevance, in our submission.

11 As the Prosecution has not indicated their relevance at this

12 stage, we are of the view that those documents should be excluded. And

13 that is our request, that at least those documents, the 59 or so

14 documents, should be excluded.

15 Your Honour, only one final matter for me to address, as the

16 others have been sufficiently covered already, and that is the question of

17 a circumstantial case which the Prosecution has indicated both yesterday

18 and today. The danger, in our submission, of such an indication on the

19 part of the Prosecution is that it can serve as a catch-all for any

20 document. The list of documents that could be submitted, then, is

21 potentially endless. It's a lot easier to say to Your Honours, "Well,

22 this is a circumstantial case. There are many pieces in the puzzle. It

23 will all fit together at some stage, and therefore everything should be

24 introduced," just in case there is one little piece of evidence that might

25 become relevant that is left out. And we can leave it all to the end to

Page 6305

1 determine, and Your Honours might even exclude documents at the end. It's

2 a lot easier to do that than to, at this stage, put down quite clearly

3 what the Prosecution's case is, what are the pieces of the puzzle, and how

4 do they fit together. If they are documents which the Prosecution wishes

5 to hold in reserve, it's entirely possible, as has happened, for those

6 documents to be left on the court file marked for identification. And if

7 they do become relevant - either through the half-time submission - this

8 is after the Prosecution has completed it case, or the Defence case, or

9 the Prosecution has a chance to respond to the Defence case - and there's

10 still an opportunity, of course, for Your Honours to call evidence as

11 well - those documents could, then, become exhibits. But in our view,

12 it's not sufficient to say, "Well, this is a case that involves a number

13 of circumstances and inferences and therefore everything should just come

14 in." A limit has to be put on it and we have to keep it in proportion,

15 otherwise we are potentially in a situation where for any document the

16 submission can be made, "Well, it might be relevant at some point, Your

17 Honour, it's a circumstantial case."

18 In our view, the Prosecution should pin their colours to the

19 mast, say which are the documents that are most essential for their case,

20 argue quite clearly why they are relevant. That will assist immeasurably

21 in narrowing the issues - for Your Honours as well, when you have to

22 adjudicate on the disputed matters - and the bulk of the documents, the

23 remaining documents, can be left on the file to be referred to if and when

24 necessary.

25 Thank you, Your Honours. Those are our submissions on the point

Page 6306

1 of relevancy.

2 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.

3 I'll summarise what you have just said, as I did a while ago, and

4 then the Prosecution will respond.

5 First of all, you mentioned that the Prosecution did not explain

6 why the documents that they want to tender were relevant. That was your

7 starting point. You said that it was incumbent on the Prosecution to

8 prove their case; they bear the burden of proof. We're in a hybrid system

9 as far as proof is concerned. The procedure that we follow is not

10 strictly speaking a common-law system or a civil-law system. It's a

11 hybrid system, and in all such hybrid systems it's necessary to examine

12 the Rules. The relevant Rule is 89(C). This is the Rule you referred to.

13 This is the Rule that has to be taken into account when considering the

14 relevance, admissibility, and probative value of documents. And, in

15 fact, 89(C) says: "That a Chamber may admit any evidence which it deems

16 to have probative value."

17 You went on to say that it was necessary to respect - and these

18 are your own terms - this Rule in a very strict fashion, and you requested

19 that the Trial Chamber should assess the probative value of the documents

20 concerned.

21 As your colleague, Mr. Bourgon, you dealt with the issue of the

22 time frame, the issue of orders, and with regard to your client,

23 Mr. Kubura, you stressed the fact that orders issued in January could in

24 no way concern your client. And you mentioned the music school by way of

25 example. You pointed out that when we have a look at the list of

Page 6307

1 documents, there are documents that are prior to and subsequent to the

2 indictment, and you mentioned 58 or 59 of them. In your opinion, these

3 documents should be excluded.

4 It seems that you are contesting the Prosecution's thesis

5 according to which the proof is constituted of elements of a puzzle that

6 has to be put together, and it's only once the puzzle has been put

7 together that it will be possible for the Trial Chamber to assess the

8 probative value and relevance of the documents concerned. So in general

9 terms, this is the position that you expressed, and you would like about

10 60 documents to be excluded, since they don't fall within the time frame

11 referred to in the indictment. And you likewise stressed the fact that

12 probative value was also at stake here.

13 On the basis of what Mr. Bourgon and you yourself have said, the

14 Prosecution will now take the floor to address the arguments presented by

15 the Defence.

16 Mr. Withopf, you may take the floor.

17 MR. WITHOPF: Thank you very much, Mr. President, Your Honours.

18 I will limit the reply to four distinct issues which arose during

19 Defence counsel responding to our submission. Number one, I will discuss

20 the issue of time frame; number two, I will discuss the practice of this

21 Trial Chamber; number three, I will again very briefly address the issue

22 of circumstantial evidence; and number four, I will certainly make a few

23 remarks in respect to what has been said by my learned friend from the

24 Kubura Defence in respect to how this can be dealt with once the trial

25 reached the stage of the rebuttal.

Page 6308












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Page 6309

1 Let me first address the issue of time frame. There is a

2 situation prior to the indictment period, as defined by our learned

3 friends from the Defence, and a situation after the indictment period. I

4 may explain this again in respect to the accused Kubura; the same,

5 however, would apply for the accused Hadzihasanovic as well.

6 It's correct that the accused Kubura became acting commander of

7 the 7th Muslim Mountain Brigade on 1st of April, 1992 and he became the

8 commander at a later point in time. However, he earlier on already in

9 1992, in December 1992, held certain positions within the 7th Muslim

10 Mountain Brigade. He first was assistant chief of staff, and he then

11 became the Chief of Staff on 1st January 1993.

12 Defence for the accused Kubura is making reference to the Appeals

13 Chamber decision. The Appeals Chamber decision addressed the issue as to

14 whether the accused Kubura can be charged with crimes committed by his

15 subordinates prior to 1st of April, 1993. This addresses the issue of

16 charges. In our view, my learned friend from the Kubura Defence is

17 missing the point. The Appeals Chamber decision has nothing to do with

18 the issue of the admissibility of documents into evidence.

19 Documents the Prosecution wishes to be tendered into evidence

20 serve the purpose to prove facts that are related to the charges. Even if

21 the Prosecution is based on the Appeals Chamber decision only allowed to

22 charge the accused Kubura for crimes that were committed only at the time

23 when a superior-subordinate relationship existed, any facts he got to know

24 earlier on in his various positions within the 7th Muslim Mountain

25 Brigade, any such facts and any notice and knowledge can be relevant to

Page 6310

1 his duty to prevent and to punish at a later stage of the proceedings or

2 at a later stage once he received command. These are two separate issues,

3 and they should be dealt with separately.

4 If I may elaborate on the issue. It's the Prosecution's view

5 that the whole issue can't be dealt with in abstracto. And I agree with

6 my learned friends from the Defence, the documents have to be looked at

7 document by document. However - and I come back to my example earlier on

8 today - if such a letter from 28th of April, 2004 - and this touches on an

9 issue that has been addressed by the Hadzihasanovic Defence - it doesn't

10 matter that the accused Hadzihasanovic became the ABiH Chief of Staff on

11 the 1st of November or maybe a few days later. That's not the point. In

12 a letter dated 28th of April, 2004 evidence could be contained which shows

13 that the accused Hadzihasanovic got to know about certain crimes - and I'm

14 taking the example of Dusina - on the 27th of January, 1993. Again, the

15 date -- the date in abstracto of a document, that can't be the criteria to

16 be used to determine on the admissibility of documents.

17 If I may, please, move on to the issue of the practice of the

18 Trial Chamber which has been addressed by my learned friend from the

19 Hadzihasanovic Defence. The practice of this Trial Chamber is liberal,

20 and documents went into evidence dated outside the indictment period. The

21 Defence has taken a broad interpretation of the Chamber's liberal approach

22 in respect to all context-related issues. The Prosecution's point is,

23 Mr. President, Your Honours, there's a difference between context and the

24 charges in the indictment. The Prosecution wishes to tender into evidence

25 documents which are relevant to the charges in the indictment. That has

Page 6311

1 nothing or does not have not necessarily to do with the context [sic].

2 The Prosecution can't see any contradiction in its approach in respect to

3 the admissibility of documents and its approach in respect to the issue of

4 judicial notice.

5 The third issue I wish to address, circumstantial evidence. I

6 said and I stay -- stand by to it that this case is a case which in some

7 areas - and in particular in respect to areas related to issues of

8 Article 7(3) of the Tribunal's Statute - is a circumstantial case, meaning

9 that the evidence is circumstantial, meaning that bits and pieces of

10 evidence must be put together in order to give the Prosecution an

11 opportunity to assist the Trial Chamber in finding out the truth and to

12 show the full picture. Therefore, it is of great importance that the

13 materials are not looked at document by document but in their totality.

14 The last issue I wish to address is the suggestion made by my

15 learned friend from the Kubura Defence; namely, that the documents could

16 be marked for identification, they could be on the court records, and the

17 Prosecution would be given an opportunity to, in the rebuttal proceedings,

18 try to tender these documents into evidence.

19 The rebuttal proceedings, Mr. President, Your Honours, the

20 rebuttal proceedings are governed by certain rules, and the rebuttal --

21 and such rules in respect to the rebuttal very strictly limit what the

22 Prosecution can do in rebuttal. It only can address issues that came out

23 during the presentation of the Defence case. The suggestion of my learned

24 friend from the Kubura Defence would never enable the Prosecution in

25 compliance with the Rules to tender such documents into evidence.

Page 6312

1 Therefore, the Prosecution very strongly objects to any such suggestion.

2 In this context - and I would have mentioned it later on in the

3 today's proceedings, but it actually fits in the issue -- or within the

4 issue of rebuttal - the Prosecution's suggestion would be a different one,

5 and it's based on the -- it's based on the procedure which has been

6 applied in the case against Kvocka. And I am referring to the decision of

7 the 17th of March, 1999. That's the order granting request for admission

8 of documentary evidence.

9 What the Kvocka Trial Chamber applied is the following: The

10 documents shall be admitted and it's up to the Defence whilst presenting

11 their case to challenge the authenticity of any of the documents or to

12 raise whatever issues, and then the Prosecution shall deal with any issues

13 raised as to the authenticity in the course of its presentation in

14 rebuttal. That would be the suggestion of the Prosecution, which is quite

15 different from the suggestion by my learned friend from the Kubura

16 Defence.

17 For the time being, I do not want to go in any further detail.

18 Thank you very much, Mr. President, Your Honours.

19 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, in general terms,

20 you responded to the remarks of the Defence by referring to four points:

21 The time frame, the practice of the Trial Chamber, the question of

22 circumstantial evidence, and the remarks made by the Defence suggesting

23 some new possibilities.

24 Regarding the time frame, you stood by your position, recalling

25 in a detailed way the functions held by General Kubura in 1992 and before

Page 6313

1 the 1st of January, 1993. Therefore, with regard to the time frame, you

2 tell us that what counts is not the date but in fact the contents of the

3 document.

4 As for the practice of the Chamber, you say this Chamber and

5 other Chambers have always had an open approach and this needs no

6 additional comment.

7 As for circumstantial evidence, you also stand by what you said,

8 and that is that there is -- there are bits and pieces of evidence which

9 allow one to form a picture and that those fragments should be viewed in

10 their totality. And by way of a suggestion, you say that these matters

11 could be addressed during the rebuttal, as the Defence says, but you are

12 absolutely opposed to that approach, that this cannot be addressed in

13 rebuttal.

14 You referred to the decision of the 17th of March, 1999 in the

15 Kvocka case, and you are inviting the Chamber to take into consideration

16 that decision.

17 To sum up, you have not taken into account the arguments made by

18 the Defence with respect to the question of time, and you stand by your

19 original position.

20 We have listened to you. Everyone had a chance to express their

21 views. We had an adversarial debate on relevancy. And the Chamber will

22 make its determination.

23 We have the two other points remaining; that is, 89 -- but let me

24 say in view of the position of the Prosecution, does the Defence have a

25 replica to make? If you consider that to be of use, yes. But perhaps

Page 6314

1 not.

2 MR. BOURGON: [Interpretation] No, thank you, Mr. President.

3 Thank you.

4 JUDGE ANTONETTI: [Interpretation] I was sure that that would be

5 your position.

6 Mr. Dixon, do you wish to respond to what Mr. Withopf said?

7 MR. DIXON: Just one clarification. I believe in the transcript

8 the date of when Mr. Kubura was charged from wasn't indicated correctly.

9 It's before 1 April 1993. That's when the bulk of the 60 documents that I

10 referred to are dated. So it's 1 April 1993.

11 And one final point, Your Honour, in respect of the rebuttal

12 argument --

13 JUDGE ANTONETTI: [Interpretation] That's fine.

14 MR. DIXON: [Previous translation continues] ... the rebuttal

15 argument made by my learned friend. My submission was that there are many

16 stages following the Prosecution case when documents could be admitted,

17 including obviously the Defence stage, when through cross-examination of

18 Defence witnesses documents could be put to those witnesses and

19 authenticated and their relevance shown in that way. Likewise, when Your

20 Honours -- if Your Honours so do, call witnesses, those witnesses can be

21 examined by both of the parties. And in the -- the rebuttal stage itself,

22 if there are issues that have arisen which make documents relevant because

23 of the Defence case, then the Prosecution would be able to introduce those

24 documents at that stage. And that would allow Your Honours to assess the

25 documents document by document with a witness present and ensure that the

Page 6315

1 proper threshold, as set out in Rule 89(C), was followed. And that was

2 the essence of my submission, that this is not the end of it for these

3 documents; they could be admitted at various stages once their relevance

4 becomes known in the broader scheme of the evidence.

5 Thank you, Your Honours.

6 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Dixon is

7 explaining the question of rebuttal, saying that the procedure allows the

8 Prosecution during the so-called rebuttal stage to present new documents

9 linked to the debate at that point in time and that it is always possible

10 at that stage for the Chamber to rule regarding the relevance of

11 documents. That is a point that you have made.

12 As I have indicated, we took note of everything that both parties

13 have told us and we will make our determinations.

14 The other two points we have on the agenda are 89(D), Rule 89(D),

15 and also the questions linked to documents which can only be produced

16 through a witness. These two points on the agenda, Mr. Bourgon wishes to

17 combine them in a single presentation. Perhaps it would be better for the

18 Defence to start with its observations, and then the Prosecution can

19 respond, for us to proceed more effectively.

20 Is Mr. Withopf in agreement with the reversal of the order of the

21 speakers?

22 MR. WITHOPF: Mr. President, Your Honours, I don't have a problem

23 with the reversal of the order. It appears, however, to be advisable to

24 discuss the two distinct issues separately.

25 JUDGE ANTONETTI: [Interpretation] Very well. The Chamber in its

Page 6316

1 decision thought it would be better to address them separately.

2 So, Mr. Bourgon, let us address them separately. So first let us

3 hear your remarks regarding 89(D), because you were the one who raised the

4 issue. After that, Mr. Dixon will also make his comments, and then the

5 Prosecution will respond and we will have an exchange of opinion.

6 Mr. Bourgon, regarding 89(D), which you have referred to in your

7 documents with respect to a number of the documents, because according to

8 you if those documents are admitted, they would be prejudicial to the

9 accused and it would not be in conformity with Rule 89(D), which I read as

10 follows: "A Chamber may exclude evidence if its probative value is

11 substantially outweighed by the need to ensure a fair trial." And

12 proceeding from this Rule, you listed a number of documents which should

13 be excluded according to you on those grounds.

14 I give you now the floor to elaborate your position. I am also

15 going to say that this applies to virtually all the documents.

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

17 First of all, I should like to begin my brief presentation by

18 underlining the fact that indeed almost all the documents proposed by the

19 Prosecution have been X'd by the Defence under the provisions of 89(D),

20 and the Defence has specified that Rule 89(D) was applicable but that the

21 document could be saved through additional evidence, and that is the

22 substance of all our arguments.

23 The arguments of the Defence regarding 89(D) are as follows: As

24 you mentioned, the Chamber should exclude evidence if the probative value

25 of that evidence is significantly outweighed by the needs of a fair trial.

Page 6317

1 In our opinion, this could occur in two instances: First of all, at the

2 moment when the Chamber rules on the admissibility of a document; and

3 secondly, this could occur later, during the assessment by the Chamber of

4 the weight to be attributed to a document which was admitted into evidence

5 within the context of the totality of the evidence. So we would

6 respectfully submit that as far as possible we should exclude documents

7 when they're being tendered, because it is then that the two parties have

8 the chance to convey their respective points of view, which will be

9 entered into the file.

10 The question linked to 89(D) is the following: At what point the

11 probative value of evidence - in this case a document - is largely

12 inferior to the requirements of a fair trial. We certainly cannot

13 enumerate all the situations when such a case may occur, but it is

14 possible, Mr. President, in our view to highlight certain guiding

15 principles which could assist the Chamber in making such a determination.

16 According to the first and simplest scenario, we believe that the

17 accused would be deprived of his right to contradict or cross-examine a

18 document or a witness -- a witness regarding the content of a document.

19 By way of an example, Mr. President: A document is given to the

20 Prosecution by a witness. This witness is called to testify before the

21 Chamber, and during the hearing of that testimony the document is not

22 produced by the Prosecution. As a result, the Defence does not address

23 the matter with the witness, because the Prosecution does not attach any

24 importance to the document. Once the witness goes back home, the

25 Prosecution produces the document, which it had occasion to produce during

Page 6318

1 the testimony of the witness. If the document is accepted by the Chamber,

2 the accused is deprived of his right, which he would have had, to

3 cross-examine the witness who could have had that document admitted.

4 Therefore, according to the weight attached to the document by the

5 Chamber, the burden of proof is reversed and we now have evidence in the

6 file which the accused needs to contradict and explain; whereas, he was

7 deprived of the real opportunity to do that. That is one scenario.

8 And in our opinion, when this occurs, then we could have another witness,

9 but according to this first scenario this document should not be admitted.

10 A second situation - and one that is the most important, in our

11 opinion - is the production of a document which, as it stands, cannot be

12 of assistance to the Chamber. And I shall give you an example: Let us

13 take a document which the Chamber receives. The Chamber, when ruling on

14 its admissibility, has to look at it for relevance, for probative value,

15 but according to our arguments it also should consider the inherent

16 components of these two criteria, and that is reliability. We have

17 already said that reliability is not a separate test nor the first test

18 but reliability still exists and when the Chamber withdraws and looks at

19 the document before it, will the Chamber be able to use that document

20 without asking themselves what that document represents and where it is

21 going according to the Prosecution case? If once they have the document

22 in their possession the Chamber has questions about its reliability, to

23 such an extent that it cannot use that document without engaging in

24 hypothesis about that document, then there is clearly a prejudice to the

25 rights of the accused because the accused did not have occasion to present

Page 6319

1 his arguments on that document, and if the Chamber should be led later on

2 in assessing the documents to giving it weight but the lack of reliability

3 is such that the document does not speak for itself.

4 And we have given several examples of this. When the time comes

5 to assess the ratione temporis of admissibility, we have already heard the

6 arguments of the two parties. I should take advantage of the opportunity

7 to add that contrary to what the Prosecution says I quite agree with my

8 colleague, it is not the date itself that is important; it is the date

9 plus the content. We have to look at the date of the document, the event

10 referred to in the document, and then can one make a determination

11 regarding the relevance of that document. But prima facie a document

12 which falls outside the time frame of the indictment raises the question

13 of whether it should be considered when considering relevance.

14 My learned friend also referred to the matter of the indictment.

15 One should not confuse, Mr. President, the offences alleged in the

16 indictment and the conduct that the two accused are accused of. These are

17 two different things. In the indictment, there are offences which are

18 attributed to certain persons, whether it be Dusina, Miletici, Maljine, or

19 any detention centre. It is alleged that somebody committed an offence

20 there. But what the accused are approached of [as interpreted] are not

21 those offences. We have already said on a number of occasions that the

22 accused are not facing charges of having committed, planned, ordered,

23 aided or abetted in any way the offences alleged in the indictment. What

24 the accused are charged of is their conduct as commanders of not having

25 prevented or punished or taken necessary and reasonable steps to achieve

Page 6320

1 these two objectives; that is, either -- either punishment or prevention.

2 This is quite different from the alleged violations of law. And it is

3 important to underline paragraph 26 of the indictment, which refers to the

4 context within which the Prosecution tends to present its circumstantial

5 case.

6 In paragraph 26, all the municipalities of Central Bosnia are

7 referred to, and this applies to a time frame far before and long after

8 the indictment. But the conduct of which the accused are charged is the

9 conduct of command responsibility between the 31st March, according to the

10 indictment; according to us, it should be the 31st of October, 1993 for

11 General Hadzihasanovic. Therefore, the relevance should be assessed in

12 that way.

13 When we come to reliability, Mr. President, we mentioned

14 yesterday that reliability has several components. In our view, one of

15 the most important components is the authenticity of a document, and

16 authenticity of a document is when the Chamber withdraws to examine a

17 document, will it have the impression that it has before it an authentic

18 document which represents what it says it represents, not whether the

19 content is true but, rather, whether the Chamber will be confident upon

20 reading this document that it will have the necessary information to

21 assess the document. If the Chamber is still questioning it, then this is

22 prejudicial to the accused because he does not have a chance to go back to

23 the document and present his arguments about it.

24 Tomorrow we will have to -- occasion to illustrate what I am

25 saying now because certain documents leave so many questions open to the

Page 6321

1 Chamber regarding the reliability that such a document cannot be admitted

2 without being supported by additional evidence. As my colleague was

3 saying, it's not the end for these documents. They can easily be marked

4 for identification and then during either the Prosecution case or the

5 Defence case or during the proceedings that come after those stages the

6 documents could then be admitted into evidence, and it is only at the end

7 that the Chamber will assess the weight, the probative value to be able to

8 reach a decision in this case.

9 I should like to conclude my presentation, Mr. President, by

10 making two points: First of all, the question of videos. This question

11 is a bit separate from the question of documentary evidence. When a video

12 is produced, one wishes to do two things: To show pictures which

13 correspond to reality; and also a commentary to those pictures, which is a

14 kind of testimony in itself. When we have such a presentation, the

15 reliability of the document is all the more important, since at that point

16 in time we do not have a witness before the Chamber. How can the Chamber

17 attach any probative value to a video, to a picture, if they do not know

18 the source, they do not know the technical characteristics, nor do they

19 know in what way, at what point in time, and for what purpose that video

20 was produced?

21 Earlier on in the course of these proceedings, Mr. President, we

22 had occasion to present arguments about videos. Firstly, we had a video

23 with a scene showing certain men with injuries, and we submitted our

24 arguments at the time to the effect that the scene, which may be in the

25 possession of the Chamber later when they make their determination, should

Page 6322

1 be limited to what was seen during the proceedings and recognised by a

2 witness so as to avoid any prejudice that may be made to the accused when

3 a Chamber would have in their possession a scene that was not part of

4 these adversarial proceedings. That is the first case.

5 The second was with witness Totic. There were arguments by both

6 parties regarding the admissibility of the video. Once the necessary

7 conditions were met, the Defence withdrew its objections to the

8 presentation of a video scene limited in time without any audio

9 commentary, and that video was produced and shown in the courtroom and it

10 is now part of the file.

11 Today we're endeavouring to submit entire videos covering a long

12 period and to have them admitted into evidence en bloc without them having

13 been seen by the Chamber and without the Chamber having any information

14 about this -- these videos. We believe, Mr. President, that this is a

15 real prejudice to the accused unless this prejudice is repaired or

16 annulled with the support of some other evidence, be it testimony,

17 documents, or any other kind of evidence. And the arguments of the

18 Defence focus on the question of the evidence as such, when we're talking

19 about documents, and even more so videos, which are being admitted without

20 any support whatsoever. And I refer to the arguments presented by my

21 colleague, who fully explained the nature of this process. These exhibits

22 were received by the Prosecution, which is one of the three parties to the

23 proceedings. This exhibit, when it was obtained, was not, as is the case

24 in the continental system, already reviewed or analysed before they were

25 admitted into the file by all the parties.

Page 6323












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13 English transcripts.













Page 6324

1 My last point, Mr. President, has to do with the question

2 addressed by my learned friend from the Prosecution regarding the Kvocka

3 decision. And we are told that evidence can be admitted into evidence and

4 it is up to the Defence to challenge them later on. We are of the opinion

5 that it is quite the opposite and that would absolutely be prejudicial to

6 the accused. If the Chamber is still -- still has questions about a

7 document and its reliability, it cannot admit them under the reservation

8 that the Defence can always challenge that evidence, because in that case

9 there is a reversal of the burden of proof, when it is up to the Defence

10 to challenge evidence; whereas, really it is the Prosecution that needs to

11 produce evidence to support its case, to fulfil its duty of burden of

12 proof beyond any reasonable doubt, and this is up to the Prosecution to

13 do.

14 For those reasons, Mr. President, we request that all the

15 documents for which column 89(D) has been ticked, following the assessment

16 by the Chamber of all the criteria, source, reliability, relevance,

17 probative value, and when all these elements have been -- should be left

18 aside until they are supported with other evidence which would give them

19 an acceptable minimum for the Chamber, and for us the minimum test is

20 whether the Chamber when alone in their chambers assessing a document

21 still have questions about this document, will the document speak for

22 itself to be considered a reliable document or will the Chamber still have

23 questions about it? In that case, this document should not be admitted

24 into evidence. It can be marked for identification, and it can wait for

25 some other occasion when it could be admitted.

Page 6325

1 I'm almost finished, but I forgot to mention something concerning

2 HVO documents. HVO documents, Mr. President, with respect to which the

3 Prosecution has had chance through a witness, witness Totic, to take all

4 the HVO documents it has in its possession and to show them to the witness

5 and to ask him whether this was a document produced by the HVO army: "Do

6 you recognise any signature? Do you recognise any stamp? Do you

7 recognise anything on that document which could assist the Judges to go

8 beyond the threshold of reliability, to answer the minimum questions of

9 the Judges?" But that was not done. And today a whole series of

10 documents is being produced coming from the HVO without a witness, telling

11 the Chamber, "You must understand what the purpose of those documents was,

12 where they come from, and everything else."

13 My last point has to do with the external character of documents.

14 The external character of documents, Mr. President, is that the further

15 removed a document is from the accused, the more -- the higher the

16 standard of reliability should be. The closer the document is to the

17 accused, then the question of reliability is less for the Chamber. Before

18 using a document produced by another army in another headquarters which

19 had the ambitions of being the enemy of the accused, then that document

20 must have a minimum reliability.

21 Thank you, Mr. President.

22 JUDGE ANTONETTI: [Interpretation] I'll now summarise what you

23 have just said, and then Mr. Withopf may take the floor to respond to your

24 case. If necessary, you can also respond to the Prosecution, and then

25 Mr. Dixon can comment on Rule 89(D).

Page 6326

1 Your presentation was very detailed. I'll just go through the

2 main points. Naturally the Prosecution will have to inform us of its

3 position.

4 You addressed a key issue and you stated that the Trial Chamber

5 must rule when documents are being admitted into evidence. This is the

6 position that you expressed when documents are being admitted, and the

7 Trial Chamber has to assess and deliberate, according to the Rules, it's

8 when a document is being tendered that you believe that the Trial Chamber

9 should assess the probative value of the document and also the need to

10 ensure a fair trial. At that point in time, if the Trial Chamber deems

11 that the probative value is outweighed by the need to ensure a fair trial,

12 the document should be excluded. Your position is quite clear.

13 You then addressed a second issue, which is also of crucial

14 importance. You stated that there are certain guidelines that have to be

15 followed in order to ensure a fair trial. Everyone is familiar with them.

16 And this concerns the right that the accused has to cross-examine a

17 witness. And on that basis, you asked yourself a question: When

18 witnesses appear, the Prosecution can tender documents. If they had done

19 so at that moment, you would have cross-examined the witness about the

20 document in question. This was not done. To tender a document into

21 evidence after a witness has been heard is prejudicial to the accused,

22 given that you were not in a position to cross-examine the witness with

23 regard to the document, and thus the accused's rights are not respected.

24 That was the second important problem that you mentioned.

25 There was a third point that you dealt with, and that concerned

Page 6327

1 the Trial Chamber's role with regard to the examination of documents and

2 with regard to document reliability. You said that when the Trial Chamber

3 deliberates, the Trial Chamber may find that it has certain questions

4 about documents that concern the reliability of the documents, and if the

5 Defence was not able to provide the Chamber with certain clarifications,

6 in such a case this might be prejudicial to the accused. That was the

7 third topic that you addressed, the prejudice that might be caused to the

8 accused when the Chamber examines documents that are not reliable,

9 documents which have been admitted.

10 You then addressed the issue of ratione temporis, and you stated

11 that a document consists of a date and its contents. It's not just the

12 contents or the date that constitutes the document. You should assess the

13 document by taking into account both the contents and the date of the

14 document. That was another issue that you dealt with.

15 You then mentioned a more legal issue, which is the criminal

16 responsibility of the accused. You pointed out that if there are certain

17 allegations in the indictment concerning offences in municipalities - you

18 mentioned Dusina, et cetera - but you said that the offences, the crimes

19 in these municipalities weren't crimes committed by the accused. What the

20 accused are charged with is not having prevented or punished these crimes.

21 That's the meaning of Article 7(3). That's what they are charged with,

22 the fact of not having prevented the crime or punished the crime. These

23 are the crimes covered by Article 7(3) of the Statute. And you wanted to

24 remind us of this legal issue.

25 You then addressed, again, the issue of reliability, and you

Page 6328

1 asked how the Trial Chamber could assess the authenticity of a document if

2 certain elements regarding its authenticity were missing. You stated that

3 if the Trial Chamber ruled and mentioned the question of an authentic

4 document without the Prosecution having been able to provide the Trial

5 Chamber with sufficient information, in such a case this could be

6 prejudicial to the accused. You said that it was your intention to refer

7 to certain documents tomorrow that deal with this issue.

8 You then dealt with certain other important issues. You mentioned

9 the problem of videos. You mentioned two videos that have been admitted,

10 the Totic video and the video concerning wounded witnesses, and in your

11 opinion the videos should be shown to the Trial Chamber in order to enable

12 the Defence to express its position and to ensure a fair trial for the

13 accused. To admit videos without showing them would be a grave violation

14 of the accused's rights. You said that a video consists of images and a

15 commentary, and naturally it is necessary for the Defence to be able to

16 express its position with regard to the video.

17 You again addressed the issue of the Kvocka decision, and you

18 stated that the implementation of this decision would be a matter of

19 reversing the burden of proof. The Defence would have to be contesting

20 certain evidence, whereas it is for the Prosecution to prove its case.

21 Applying this decision by saying that one will admit this and then by

22 saying that the Defence has to contest what will is being admitted, in

23 your opinion doing this amounts to reversing the burden of proof.

24 You then dealt with the issue of HVO documents. You expressed

25 surprise because when General Totic was present the Prosecution didn't

Page 6329

1 consider it necessary to show him the so-called HVO documents, because

2 this high-ranking member of the military could have identified the

3 documents at that point in time, yet this was not done.

4 Finally, you redefined - this is something you said yesterday,

5 but you repeated it today - you addressed the issue of the external

6 examination of documents. You claimed that the further removed a document

7 was from the accused, the greater the guarantees should be concerning the

8 reliability of the document. On the other hand, if the document was

9 issued by the accused or closer to the accused, in such a case the

10 guarantees of reliability need not be so great.

11 So all these comments are very interesting, and it is necessary

12 for the Prosecution to respond so that the Trial Chamber can be aware of

13 the situation before deliberating.

14 I will now give Mr. Dixon the floor and we will continue. It's

15 better to follow such a procedure. It will be clearer for everyone,

16 rather than mixing up the arguments of both parties.

17 So I will give the floor to Mr. Withopf now. Could you comment

18 on all the issues addressed by Mr. Bourgon. I summarise that in order to

19 cover all the issues raised.

20 But, Mr. Withopf, you may take the floor now.

21 MR. WITHOPF: Mr. President, I think I'm in agreement with my

22 learned friend from the Kubura Defence that it may be appropriate, with

23 the Chamber's permission, that the Kubura Defence comments on the two

24 issues in question and then the Prosecution can respond just once.

25 JUDGE ANTONETTI: [Interpretation] Very well. So you would prefer

Page 6330

1 Mr. Dixon to take the floor now. If he's going to say the same things,

2 that might be useful; but if he has other elements to add, that might

3 cause certain confusion for the public and also for the Trial Chamber.

4 Mr. Dixon, would you be repeating what Mr. Bourgon said? What

5 would you like to do? Would you like to comment now, or would you rather

6 have the Prosecution respond to Mr. Bourgon at this point in time and then

7 respond to what you have to say? It seems that the Prosecution thinks

8 that you should take the floor now and then the Prosecution could respond.

9 But perhaps they're interpreting your position. What would you -- how

10 would you like to proceed?

11 MR. DIXON: Thank you, Your Honours. I have nothing further to

12 add to Mr. Bourgon's very thorough submission on Rule 89(D), so on that

13 topic we have nothing further to add.

14 I do have some brief submissions on the question of witness

15 requirements, but I'm not sure if that's going to be dealt with separately

16 after 89(D). If it is, then I will wait until after Mr. Withopf has

17 responded on 89(D) and then make further submissions on witness

18 requirements.

19 JUDGE ANTONETTI: [Interpretation] Very well. So now we are

20 dealing with 89(D). The question that concerns witness requirements is

21 the last issue to be dealt with, and it's an essential question because we

22 have to know which documents can only be tendered through witnesses. I

23 think that that is what you wanted to comment on.

24 So the best way to proceed, as the Trial Chamber has said, is for

25 Mr. Withopf to respond to Mr. Bourgon's submissions, given that

Page 6331

1 Mr. Kubura's Defence has adopted more or less the same position as the

2 Defence for Mr. Hadzihasanovic.

3 Mr. Withopf, you may take the floor.

4 MR. WITHOPF: Thank you very much, Mr. President, Your Honours.

5 It's the understanding of the Prosecution that our learned friend

6 from the Hadzihasanovic Defence actually addressed both issues, Rule 89(D)

7 and the issue of the necessary to have witnesses. That's at least our

8 interpretation of what has been discussed.

9 If I may, please, first address Rule 89(D). This is a very

10 distinct issue, and we have done research on the ICTY's jurisprudence on

11 this issue. The research has revealed the following: This Rule has

12 not -- has not occasioned extensive jurisprudence. What, however,

13 transpired is the following, and this is summarising the jurisprudence of

14 the ICTY.

15 The probative value of evidence is substantially outweighed by

16 the need to ensure a fair trial in cases in which the Defence did not have

17 sufficient time to properly prepare the defence or, if the materials the

18 Prosecution wishes to be tendered into evidence, were obtained contrary to

19 internationally protected human rights. As it is quite obvious, this

20 jurisprudence touches on the issues which are relied -- related to the

21 irregularity of the proceedings, which is quite different from the Defence

22 submissions on this issue.

23 The ICTY's jurisprudence in addition covers two other scenarios.

24 Number one would be documents that are of cumulative nature only; and

25 number two, the evidence would be hearsay evidence only. That means

Page 6332

1 none -- none of the criteria, or none of these four or five criteria apply

2 to the documents Defence wishes to have excluded from admission into

3 evidence for the reasons they explained today.

4 In this context, I wish to emphasise that this trial is conducted

5 before professional Judges, who are certainly in a position to judge on

6 the issues related to Rule 89(D).

7 If I may briefly address the issue of the videos. The videos in

8 many instances -- and the Prosecution invites the Trial Chamber to

9 actually view the videos, and they can be made available. The videos in

10 many instances are quite self-explanatory. They are quite

11 self-explanatory by the fact what can be seen on the video and what is

12 written on the footage, which is sometimes quite interesting to know.

13 That means the concern that a witness is necessarily needed to assess the

14 probative value of a video is not -- at least not in all instances, shared

15 by the Prosecution.

16 My learned friend from the Hadzihasanovic Defence has also

17 addressed the issue why the Prosecution hasn't shown Brigadier Totic all

18 documents that stem from the HVO. Brigadier Totic at the time in 1993 was

19 a brigade commander. He would not have been in a position to comment on

20 any HVO documents that fall outside the scope of his responsibilities at

21 the time. Therefore, it wouldn't have made sense to introduce all HVO

22 documents via this particular witness.

23 As I said, the Prosecution understands, at least from what my

24 learned friend from the Hadzihasanovic Defence submitted today, that he

25 also addressed the issue whether witnesses are necessary to admit

Page 6333

1 documents into evidence, and therefore with the permission of the Trial

2 Chamber I would like to continue with this issue.

3 The issue has been addressed on a number of occasions before this

4 Trial Chamber. Having had a close look at the written submissions of the

5 Defence, it appears that the Defence wishes to have for the vast majority

6 of the materials, if not for all of them, a witness being questioned in

7 respect to them.

8 To summarise the Prosecution's position, it has been accepted in

9 the past by at least two Trial Chambers - the Galic and the Simic Trial

10 Chamber - that documents can be tendered from the bar table not using a

11 witness. This is in full compliance with the procedures and practices

12 applied in civil-law jurisdictions.

13 The only issue, Mr. President, Your Honours, the only issue which

14 in the submission of the Prosecution can be discussed is the issue of the

15 probative value of documents which are tendered without a witness for the

16 reasons that documents not having been discussed with a witness did not

17 receive the scrutiny involved in the cross-examination of a witness. In

18 this context, Mr. President, Your Honours, reference is made to the

19 Celebici Trial Chamber decision of 19th of January, 1998, and in

20 particular to its paragraph 22, where it says: "It is clear from the

21 relevant provisions of the Rules that there's no blanket prohibition on

22 the admission of documents simply on the ground that their purported

23 author had not been called to testify in the proceedings."

24 And they continue to say: "It is a different matter that the

25 probative value of such evidence by necessary will be affected by the fact

Page 6334

1 that it has not received the scrutiny involved in the cross-examination of

2 a witness."

3 This is an important factor to which the Trial Chamber will give

4 due consideration at the stage of assessing the weight to be attached to

5 exhibits of this nature. Again, this is paragraph 22 of the Celebici

6 Trial Chamber decision of 19th of January, 1998, which to its full extent

7 summarises the Prosecution's view on this issue.

8 And this is exactly the reason, Mr. President, Your Honours, why

9 the Prosecution certainly will continue to discuss certain documents with

10 witnesses in order to ensure that such documents and the contents of such

11 documents and that the probative value of the contents of such documents

12 is at the disposal and is known to the Trial Chamber to the extent

13 possible.

14 The situation expressed in the Celebici Trial Chamber decision of

15 19th January 1998 obviously covers two distinct situations; namely, a

16 witness is not called, or a witness has been withdrawn, as it happened in

17 respect to the one witness whose name was redacted from the transcript

18 earlier on today; and the second situation, a witness was called but has

19 not for whatever reason been questioned about a document this witness may

20 have been provided.

21 These are the submissions, Mr. President, Your Honours, in

22 respect to the two issues, Rule 89(D) and the issue as to whether

23 witnesses have to be questioned in respect to all documents.

24 Thank you very much.

25 JUDGE ANTONETTI: [Interpretation] Very well. Before we have our

Page 6335

1 necessary break, I'll summarise what you have just said, and then the

2 Defence can take the floor after the break.

3 You said that in view of the issues raised by the Defence you

4 studied the jurisprudence of the Tribunal, and if I have understood you

5 correctly, the jurisprudence doesn't -- is not very extensive and doesn't

6 enlighten us greatly, but you can distinguish two types of jurisprudence.

7 There's the question of cumulative evidence, and there's the question of

8 hearsay evidence. But in spite of this, you said that the difficulties we

9 may encounter could be dealt with given that we have professional Judges

10 here, who are in a position to assess the relevance, the probative value,

11 the reliability of documents, et cetera, et cetera.

12 You also pointed out that there were three decisions - the Galic

13 and Simic decision - in these two decisions, it is said that it is

14 possible to tender documents into evidence without having recourse to a

15 witness, so there is no need for the Defence's arguments; they have no

16 ground. This has already been ruled on.

17 You also mentioned the Celebici decision dated the 19th of

18 January, 1998, and you referred to paragraph 22 of that decision. This

19 paragraph states that if a document was not one with regard to which a

20 witness could be cross-examined by the Defence, the Trial Chamber in such

21 a case draws the conclusion that the probative value of the document in

22 question is not as great; it is diminished. On the basis of this Celebici

23 decision, you said that the Prosecution will be introducing documents

24 through witnesses in the future, in the weeks to come.

25 So there was a question that I was asking myself: Should what

Page 6336

1 you said be interpreted to mean that some of the documents on the list,

2 some of the documents that have been contested, are going to be tendered

3 into evidence through witnesses? If that is the case, it would be very

4 useful for us to know about this as soon as possible. And this would

5 enable us to avoid unnecessary debate. Unless we're dealing with

6 witnesses who will be appearing with documents that are not on the list,

7 but this is not something that I could even imagine.

8 So, Mr. Withopf, could you be more precise about what you meant.

9 As far as I'm concerned - but I think this is what the other Judges

10 understood too - you said that in future witnesses will be appearing and

11 you will be tendering documents into evidence through these witnesses,

12 bearing in mind the Celebici decision, naturally. But these documents are

13 already on the list. Is that correct? What can you tell us about this?

14 And we will then adjourn.

15 MR. WITHOPF: Mr. President, Your Honours, to be very clear in

16 that respect, the Prosecution wishes to have tendered all documents on its

17 current list into evidence based on the discussions -- on the ongoing

18 discussions.

19 In order and in respect to the probative value, however, the

20 Prosecution intends to discuss a certain number of documents which the

21 Prosecution wishes to have been tendered into evidence by a future

22 decision of the Trial Chamber, based on the yesterday's, today's, and

23 tomorrow's discussion, will discuss such documents with witnesses as has

24 been done in the past with respect to a number of documents which were not

25 contested by the Defence and went into evidence based on a Trial Chamber's

Page 6337

1 decision.

2 So the Prosecution wishes to have all documents, as suggested, to

3 be admitted into evidence. However, the Prosecution in the future will

4 discuss a certain number of such documents in addition with witnesses.

5 JUDGE ANTONETTI: [Interpretation] Very well. So I'll summarise

6 what you said. You said that you're requesting that all the documents be

7 admitted into evidence, and you said that some of these documents - we

8 don't know which ones at this point of time - some of these documents

9 could be the subject of debate with witnesses. That is how we have

10 understood you.

11 We will now adjourn. It is 12.32. We will resume at 1.00 and we

12 will then conclude the hearing.

13 --- Recess taken at 12.32 p.m.

14 --- On resuming at 12.59 p.m.

15 JUDGE ANTONETTI: [Interpretation] Following what we have been

16 told by Mr. Withopf, does Mr. Bourgon have any remarks to make in

17 response?

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

19 My comments would be divided into two parts, Mr. President.

20 First of all, I should like to respond to the arguments offered by the

21 Prosecution regarding the question of 89(D) of the Rules; and secondly, I

22 will address the second point, that is, the question of the necessity of

23 calling a witness.

24 Regarding the point made by the Prosecution connected to 89(D)

25 concerning video evidence, and the Prosecution tells us that they are

Page 6338












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13 English transcripts.













Page 6339

1 self-explanatory, and it is interesting also to see the footage that may

2 be included on the video. My friend himself underlined the danger of

3 seeing this video. Who is telling us that that video is the truth? Who

4 tells us when it was taken? Who tells us that it is not a fabrication?

5 Without having technical knowledge, we all know how easily montages can be

6 made and the clippings combined from different periods, different dates,

7 and different places.

8 Regarding the footage at the bottom of the screen, who wrote

9 those comments? Are they truthful? For what purpose were they included

10 in the video? All these points speak in favour of having a video being

11 introduced through a witness and not simply given in the course of these

12 proceedings.

13 The second point, Mr. President, has to do with witness Totic.

14 My learned friend did not appear to understand the point I made concerning

15 the documents through this witness. Of course, Mr. President, it would

16 not have been possible for witness Totic to speak of the contents of those

17 documents, unless he himself was implicated, and surely the Prosecution in

18 that case would have used those documents. But that was not the point

19 made by the Defence. Our question had to do with reliability. We

20 believe, as we are going to show tomorrow, that these HVO documents are so

21 little reliable in themselves that they cannot be admitted into evidence

22 as such. Witness Totic could have identified how the documents were

23 drafted, how they were sent, how they were received, the numbering

24 applied, who can or cannot sign such documents, so he could have provided

25 a great deal of information to the Chamber and thereby increased the

Page 6340

1 reliability of all HVO documents, perhaps even beyond the threshold which

2 we respectfully ask the Chamber to respect. So that was the purpose of my

3 comments regarding witness Totic.

4 Finally, the last point, Mr. President, made by my learned

5 friend, and he said that if a document is introduced into evidence and --

6 sorry, I'll start again. The document is in the file. A witness appears,

7 and the Defence does not address that document with the witness. It would

8 appear, according to my learned friend, that the presumption would be that

9 the document has no interest for the Defence and that the Defence does not

10 object regarding the reliability and relevance of that document. It would

11 appear that it is up to the Defence to raise the question of a document

12 with a witness.

13 Mr. President, the procedure in this Tribunal is clear; the

14 burden of proof is with the Prosecution and not the Defence. The argument

15 of the Defence is quite the opposite. The Prosecution received a document

16 from a witness, and when that witness appears before the Chamber, they

17 don't use that document. So in that case, we believe that the presumption

18 must be that the document has no probative value, otherwise it would have

19 been used. It is their purpose, their aim, their burden of proof to say

20 that the document could be admitted later and if the Defence didn't

21 address the document with the witness, that is again a reversal of the

22 burden of proof and that is prejudicial to the accused.

23 Those are my comments regarding the first part of the

24 presentation regarding 89(D). I now come to the second part of my

25 comments, that is, the need to have a witness present to be able to

Page 6341

1 introduce a document.

2 The first comment is something that we have said repeatedly. We

3 do not believe that there is any rule which says that the document cannot

4 be produced in itself. This exists in all jurisdictions, common law and

5 civil law. There are conditions when a document may be admitted. That is

6 not the argument of the Defence. The argument of the Defence is that if

7 there is a problem with a document, in that case the document can only --

8 cannot be produced in itself and by itself.

9 My learned friend refers to a decision in Celebici, where it

10 said, I think, that that were no blanket prohibition. I think this is the

11 term he used. I don't have the whole paragraph, but if my understanding

12 is correct, the question had to do with the author of the document and we

13 quite agree with that decision. One doesn't always need to have the

14 author of the document, but one may need some other witness to give

15 sufficient probative value to a document so that it exceeds the necessary

16 threshold. We agree that the author of a document doesn't have to testify

17 on each and every occasion.

18 When determining whether a witness is necessary or not, there are

19 two cases: The case of admissibility and the case of substance. When we

20 are talking about admissibility, that is, when we have to see whether a

21 document is admissible, the argument of the Defence is, as we already

22 said, that some documents necessitate something in addition, something

23 additional, and that something, Mr. President, could be, by way of

24 example, another document, perhaps a witness, a witness who is not the

25 author, a witness who could throw -- shed some light on that document.

Page 6342

1 But there are also other possibilities and that would add sufficiently to

2 reliability to make the document admissible. When the Chamber sees the

3 examples we will discuss tomorrow, you will be able to see that for many

4 documents when marked by an "X" for a witness, they could also be

5 supported by other evidence, because this was a question of admissibility

6 and all we wanted to make sure was that the document was reliable.

7 Also, there are certain documents which require more than that,

8 which obligatorily require a witness, in our view. And we refer to

9 Article -- to Rule 92 bis of the Rules. 92 bis was designed to allow

10 written statements to be admitted instead of testimony without having had

11 the witness to come, to stand in for oral testimony. But this is done

12 under certain circumstances. And we are told in Rule 92 bis, among other

13 things, that Rule 92 bis -- or 92 bis testimony in writing would be

14 encouraged in the following circumstances, and we are told: "The factors

15 in favour of admitting evidence in the form of a written statement include

16 cumulative nature, historical, political, or military background;

17 containing statistical analysis of the ethnic composition; concerning the

18 impact of crimes upon victims; relating to issues of the character of the

19 accused; or relating to factors to be taken into account in determining

20 sentence." However, we are told that there are factors against admitting

21 evidence in written form.

22 And in -- paragraph A it says: "There is an overriding public

23 interest in the evidence in question being presented orally." And B:

24 "When a party objecting can demonstrate that its nature and source

25 renders it unreliable or that its prejudicial effect outweighs its

Page 6343

1 probative value." And finally: "There are any other factors which make

2 it appropriate for the witness to appear."

3 There are factors that are in favour and factors that are against,

4 but there is one determining factor; that is, those that refer to the

5 accused. It has to be proof of a matter other than the acts and conduct

6 of the accused as charged in the indictment.

7 Therefore, we are talking about testimony here in 92 bis, but we

8 must look at the spirit of this Rule. A written statement is not

9 replacing oral evidence when it relates to acts and conduct of the

10 accused. Also, a document cannot be tendered without a witness if it

11 relates to the acts and conduct of the accused, because that would be

12 contrary with the letter and spirit of 92 bis.

13 Therefore, our argument regarding documents that absolutely

14 require a witness are the documents which relate to the acts and conduct

15 of the accused. Among those documents, Mr. President, there are documents

16 bearing the signature of the accused that were drafted by the accused,

17 ordered by the accused, or that directly relate to the acts and conduct of

18 the accused.

19 In spite of that, Mr. President, as we noted yesterday, we have

20 withdrawn all challenge to a number of documents that were signed by the

21 accused, clearly to allow the effective progress of the proceedings.

22 However, when we come to admissibility and we ticked the box "witness",

23 that means the document may be supported with a witness or other

24 documents, but when they relate to the acts and conduct of the accused,

25 there must be a witness.

Page 6344

1 Then there's another point: When my learned friend spoke about

2 the jurisprudence of the Tribunal. And as we do not fit into that

3 jurisprudence, therefore we should be rejected. If he found jurisprudence

4 which rejected the arguments of the Defence, then that would be

5 applicable, but the way they put it, I think it is turning upside down the

6 use of jurisprudence.

7 JUDGE ANTONETTI: [Interpretation] Thank you.

8 Mr. Dixon.

9 MR. DIXON: Thank you, Your Honours.

10 On the question of the requirements for witnesses, there are two

11 general points which I want to make before going into some specific

12 categories that we have identified for where witnesses, in our submission,

13 are required.

14 The first general point is that yes, Your Honours have noted that

15 all of the witnesses where there is a document have been crossed in order

16 to indicate that all documents essentially require a witness. There's an

17 important clarification here, the first being that as was indicated

18 yesterday, we do require - and the Prosecution has conceded to this - a

19 witness from the various archives to explain how the documents arrived in

20 the archives, as Your Honour pointed out, what happened between 1993 and

21 2000, when the archives were searched by the Prosecution.

22 As I outlined yesterday in relation to the archive for the

23 7th Brigade, there are some questions that we have about when in fact that

24 archive existed and how the documents came to be located in that archive.

25 And that's one of the reasons why all the witnesses have been crossed,

Page 6345

1 because most of the documents relate to one or other of those archives.

2 But it doesn't mean that we would have to have 600 witnesses. It might

3 mean a single witness for an archive which would cross out a number of

4 documents, possibly two, 300 of those documents.

5 Secondly, Your Honours, it may well be that even though a number

6 of documents have been crossed for a witness, when they are looked at in

7 categories - and I'm going to come on to these categories now - it will

8 not be necessary to have a witness for each and every document but one

9 witness could deal with a number of documents in a category. We are

10 committed to seeking to only require the minimum amount of witnesses to

11 come in order that the documents can be fully assessed with those

12 witnesses. It will not be necessary to conceive of this as a process that

13 is going to substantially lengthen the Prosecution case. Indeed, we -- we

14 have just over a month and a half still of court time, given the

15 Prosecution's estimation, within which some additional witnesses could be

16 called to address these documents.

17 We have identified, Your Honours, seven categories where we would

18 require a witness, and it might well be that there are only a handful of

19 witnesses in each category, possibly even a single witness, to cover the

20 documents concerned. But much will depend on the documents and the kinds

21 of witnesses that the Prosecution may seek to call, and that is of course

22 a matter for them in presenting their case.

23 The first category is headed "The signature of Mr. Kubura."

24 There are a handful of documents, about eight or nine documents, which we

25 say although Mr. Kubura's name appears on the bottom of the document, the

Page 6346

1 signature above it is not his. And this can easily be ascertained by

2 comparing those signatures with his signature on a number of other

3 documents which the Prosecution has not -- sorry, which the Defence has

4 not placed in dispute.

5 Some of those documents where we say the signature is wrong, it's

6 not his signature, are signed by other persons, some of which may be

7 identifiable but others not. And in respect of those orders, we insist on

8 a witness being called to explain who signed those orders, it being

9 paramount that they are not associated with Mr. Kubura, as he was not the

10 person who issued those orders. If a witness cannot be provided, then in

11 our submission it would be highly prejudicial to accept the document into

12 evidence when it is plain on its face that it is not his signature, in

13 comparison to the signatures on other documents.

14 The second category is headed "Signatures of others, or third

15 parties." These are documents signed not by Mr. Kubura or somebody

16 purportedly signing for him but other members of the 7th Brigade, or the

17 3rd Corps, or persons outside of the 3rd Corps where we have no knowledge

18 of whether the signature on the document is indeed the signature of the

19 person concerned and no knowledge of the document itself. Here we also

20 insist that a witness or group of witnesses should be called, especially

21 given that the authors of these documents were serving members of either

22 the HVO or the Bosnian army at the time. They are readily available in

23 Bosnia and could be called to verify, or not, the document concerned. It

24 would not be a question of days and days of testimony. It might even

25 simply be taking a statement from them, where they identify the document,

Page 6347

1 and there may be no further challenge from the Defence thereafter,

2 depending on the contents of that statement.

3 These are all procedures that would have been undertaken, to

4 revert to my previous point, either by an investigating judge in a

5 civil-law system, or by the police or prosecutor's office in a common-law

6 system, to verify that these are authentic documents and to confirm the

7 signature on them, especially when they are not the signatures of the

8 accused persons.

9 The third category is headed "Handwritten documents." And there

10 are about a dozen of these, which are documents that are not official, no

11 stamps appear on them, handwritten in -- in handwritings that are not

12 clear to the Defence who they belong to, and where the author of the

13 document in some cases is not known. The same considerations that apply

14 to the previous category would apply to this; that those documents should

15 be excluded unless they can be verified by the author or by somebody

16 within the armed forces who can confirm the existence of these documents.

17 The fourth category are, "Witnesses who are still to come," a

18 matter which Your Honours have raised. The very first document on the

19 Prosecution list is a document that is a transcript about a conversation

20 between Mr. Hogg and a certain Mr. Aziz. Mr. Hogg is on the Prosecution

21 list of witnesses still to be called, and in our view documents like this

22 should not be introduced into evidence until the witness is called, and

23 when the witness is called the document can be sought to be introduced

24 through that witness. There are a number of these documents, documents

25 where witnesses are still to attend, and we are at a loss as to why the

Page 6348

1 Prosecution does simply not wait for those witnesses to come and introduce

2 them in the normal manner.

3 The next category is one headed "El-Liva magazine," which is

4 allegedly the mouthpiece of the 7th Brigade, a fact which is disputed by

5 the Defence. Many of these magazine entries or journal entries come from

6 a period very late in the day after the indictment in 1994/1995, and Your

7 Honours know what our objection is in respect of such documents.

8 But in addition to that, we would require a witness - and it

9 might only be a single witness - to testify about the nature of this

10 magazine. Where did they get their information from, how did it come to

11 end up in the magazine, and what was the status of this magazine, whether

12 it was indeed one that had anything to do with the 7th Brigade.

13 The next category which has been mentioned on a number of

14 occasions is headed "Videos." Your Honours know what our objections are

15 in respect of the videos.

16 To give just but one additional example, contested exhibit

17 number 409 is a video where the source is unknown, and the Prosecution has

18 also indicated "sensitive source." The date of the video is 21 August

19 1992, and the document description is: "A videotape of the formation of

20 the ABiH 3rd Corps, 7th Muslim Mountain Brigade in 1992 in Travnik

21 municipality." The Prosecution has indicated today, and indeed in

22 paragraph 19 of the indictment, the allegation is that the 7th Brigade

23 formed on 19 November 1992, and yet here we have a video which was

24 supposedly taken in August 1992 regarding the formation of the 7th

25 Brigade.

Page 6349

1 Your Honours will appreciate why we are contesting the reliability

2 of such a videotape and why we require a witness to explain how they were

3 videoing this formation when in fact the Prosecution's own case is that

4 the 7th Brigade was formed some two to three months later.

5 And then the final category are documents where there's no

6 signature on the document whatsoever. The Prosecution gave some

7 explanation yesterday why that might be the case. But as we indicated

8 yesterday, it's not for the Prosecution to give that evidence. We need a

9 witness to explain why they are documents that are unsigned so that Your

10 Honours can assess whether any value can be attached to such documents.

11 Your Honour, those are the seven categories where we indicate

12 that witnesses are required. We will tomorrow present examples from those

13 seven categories in order to attempt to illustrate to Your Honours what

14 kinds of documents we are talking about and why we require a witness for

15 them.

16 In addition, if Your Honours so request, we can provide a

17 breakdown of which documents fit into which category so that it's

18 absolutely clear which are the documents that are contested under these

19 different headings and that it will not be necessary, then, to go back to

20 the whole long consolidated list and try and make out what the objections

21 are. It might be more convenient to have the documents listed under these

22 different headings with some examples given for Your Honours in order that

23 a decision can be made about whether witnesses should be called for them

24 or whether indeed they should be excluded, if no witness is available or

25 even if a witness comes, the document is irrelevant in any event.

Page 6350

1 Your Honour, there's one final category. It's a general one.

2 There are just two documents for completeness which I wish to -- to

3 mention. And that is the prior testimony of Colonel Stewart, number 57 on

4 the consolidated exhibit list. I understand that that is still sought to

5 be relied upon by the Prosecution, even though they've withdrawn the prior

6 testimonies of a number of other witnesses. In our submission, that

7 document -- or that testimony cannot be admitted without Colonel Stewart

8 being made available because it is testimony that goes to the acts and

9 conduct of the accused, and accordingly 92 bis would require him to.

10 And then there's one other document which Your Honours will be

11 familiar with, document number 58, which is the so-called "Instructions to

12 Muslim fighters." This document is marked for identification already.

13 The Prosecution sought to introduce it through a member of the 7th Brigade

14 but was unable to do so, and in our view that document should not be

15 admitted unless a witness can identify the document and give it its

16 necessary reliability, if that indeed exists. This is an important

17 document because the Prosecution has alleged that it was used widely

18 throughout the 7th Brigade and 3rd Corps, but at the moment it's not a

19 document in evidence, and that is one where we would certainly require a

20 witness to attend.

21 Your Honour, I hope that has been of some assistance. We will

22 provide examples tomorrow and can provide the document numbers under those

23 headings in order to assist Your Honours in deciding these matters. Thank

24 you.

25 JUDGE ANTONETTI: [Interpretation] Thank you.

Page 6351

1 Mr. Withopf may take the floor now. I will summarise what you

2 said. First I will provide you with a summary of what Defence counsel

3 said, what Mr. Bourgon and Mr. Dixon said.

4 Mr. Bourgon went back to a certain number of problems concerning

5 Rule 89(D) and he mentioned Rule 92 bis. He argued that the spirit of

6 Rule 92 bis, in the case of statements, but this could also be applied to

7 documents, when we're dealing with the dates and the conduct of the

8 accused, in such cases we need a witness according to the spirit of the

9 Rule. Mr. Bourgon made a comparison with questions that had to do with

10 reliability.

11 Mr. Dixon then expressed his position. He mentioned seven

12 categories of documents, and he provided us with a number of examples,

13 which I won't go through, as everyone was following what was said. By way

14 of example, I'll mention category 2, which concerns documents that were

15 signed by third parties and not by the person who was supposed to sign the

16 document. And the Defence believes that we require to have as a witness

17 the person who actually signed the document.

18 Mr. Dixon also stated that witnesses will be appearing and that

19 when they do so, documents could be tendered into evidence. He mentioned

20 the journalist Hogg within the framework of the conversation -- the

21 interview he had with Mr. Aziz. Another category, another example given

22 concerned the 7th Brigade magazine. I have it before me. It has a stamp

23 with a coat of arms of the BH Republic, but it's the 1st of March, 1994.

24 That's the date. Perhaps there are other magazines, but the Defence told

25 us that it would be good to have a witness who could authenticate such

Page 6352

1 documents. And Mr. Dixon mentioned something that was also mentioned

2 yesterday. He said that it was necessary to call archivists to testify

3 before the Tribunal.

4 The Trial Chamber noted that the Defence suggests to -- suggest

5 that they make a document which would divide the documents into these

6 seven categories. Naturally, anything that might help clarify matters and

7 anything that might assist us is very welcome. It's not necessary to

8 render a decision to that effect. This is something that the parties can

9 do spontaneously, given that this could assist the Chamber and the other

10 party.

11 Generally speaking, such were the positions expressed by the

12 Defence. As the burden of proof is placed on the Prosecution, I will for

13 one last time let them take the floor again. We will then adjourn. The

14 hearing will resume tomorrow, and we will examine the 50 documents that

15 were mentioned.

16 Mr. Withopf, you may take floor.

17 MR. WITHOPF: Thank you very much, Mr. President, Your Honours.

18 Taking into account the time that has passed by, I will keep my

19 observations very short.

20 I first address Rule 92 bis. Rule 92 bis is obviously made in

21 respect to written witness statements. There's a difference obviously

22 between written witness statements and documents and the fact that

23 documents are not -- are deliberately not included within the scope of

24 Rule 92 bis makes it pretty obvious that documents do not have to match

25 the criteria under Rule 92 bis, even in the event in which the contents of

Page 6353

1 the documents go to the acts and the conduct of the accused.

2 It's the submission of the Prosecution that the gist of

3 Rule 92 bis cannot be used in respect to documents because documents are a

4 completely different category of evidence, as in comparison to witness

5 statements, written witness statements.

6 As mentioned earlier on, the Prosecution does agree and will take

7 efforts to either call the archivists of the archives as witnesses or to

8 take Rule 92 bis statements.

9 My learned friend from the Kubura Defence mentioned a number of

10 categories which they think the documents should be dealt with. Again,

11 this issue touches on the basic issue whether it's a question of

12 admissibility or a question of probative value. If there is no signature,

13 the Prosecution would tend to agree that the probative value is less in

14 comparison to a document on which is a signature. In respect to the very

15 particular example which has been given by my learned friend from the

16 Kubura Defence, the fact that a military order which has the name at the

17 very bottom, the name of the accused Kubura at the very bottom, however

18 it's signed by somebody else, does not exclude by any means that the

19 accused Kubura issued the order and somebody else signed at his behalf.

20 Again, the Prosecution considers this category, as all other

21 categories, being an issue of probative value, not an issue of

22 admissibility of documents.

23 The "El-Liva" magazine has already been addressed by Your Honour,

24 the Presiding Judge. The "El-Liva" magazine - and I have a copy in front

25 of me - prima facie it's obviously an official magazine by the 7th Muslim

Page 6354

1 Brigade. It has the stamps and all the essentials of the Armija Republic

2 of BiH on it, and on its face it is obviously an official document.

3 In respect to the video which the Prosecution informed the Trial

4 Chamber about, that there is a sensitive source, if the Trial Chamber

5 requests, particularly requests to reveal the name of the sensitive

6 source, the Prosecution is prepared to reveal the name in closed session.

7 To summarise the Prosecution's submission, many of the issues

8 addressed do not have to do with the issue of admissibility of documents

9 but with the issue of probative value. The documents have to be seen in

10 their totality because in some areas this case is a case of circumstantial

11 evidence, and the Prosecution again wishes to emphasise that it suggests

12 that the Trial Chamber applies the procedure as it has been applied for

13 good reasons by the Kvocka Trial Chamber.

14 Thank you very much, Mr. President, Your Honours.

15 JUDGE ANTONETTI: [Interpretation] Thank you.

16 We will now adjourn, since all the items on the agenda have been

17 covered, with the exception of the 50 documents, which accounts for 10

18 per cent of the totality of documents, roughly speaking. These documents

19 will be examined tomorrow. We will examine them one by one, and this will

20 enable us to progress and have an overall view of the situation.

21 Before we adjourn, I would nevertheless like to remind both

22 parties, and in particular the Defence, that the need for a fair trial

23 means that the accused naturally must be represented by Defence counsel

24 and must also be in a position to contest the evidence presented by the

25 Prosecution. This should take place within the framework of adversarial

Page 6355

1 proceedings. This is what it means to have a fair trial. The Defence and

2 the accused must be in a position to express their position and have a

3 view of the evidence used against the accused. So this is a general

4 principle which must always be present in the minds of both parties.

5 Having said that, on that basis, something that everyone should

6 remember is that it is necessary to know whether the accused had time to

7 examine the documents and to express their opinion of the documents. As

8 you are well aware, this case didn't start a few months ago but a few

9 years ago, because the indictment was issued some time ago. Since the

10 indictment was issued, the Prosecution has disclosed to the Defence most

11 of the documents. The Defence has been able to assess the documents

12 together with the accused. When the Trial Chamber asked the Defence to

13 present their arguments, the Defence was in a position to inform us about

14 issues that had to do with authenticity, relevance, reliability, unknown

15 sources, et cetera, and they could do this for each single document, which

16 means that adversarial -- an adversarial debate had already been engaged.

17 This debate will continue tomorrow. We will be dealing with the 50

18 documents mentioned. I wanted to remind you of this, bearing in mind what

19 has been said today.

20 We will now adjourn and resume tomorrow at 9.00. We will adjourn

21 tomorrow around 1.45, and the Judges will then have to render a decision

22 with regard to the oral and written request presented by the Prosecution,

23 the request that concerns tendering these documents into evidence.

24 Thank you, and I will see you tomorrow.

25 --- Whereupon the hearing adjourned at 1.43 p.m.,

Page 6356

1 to be reconvened on Thursday, the 29th day of

2 April, 2004, at 9.00 a.m.