Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Friday, 1 April 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

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

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

7 IT-01-48-T, the Prosecutor versus Sefer Halilovic.

8 JUDGE LIU: Thank you. Good morning, ladies and gentlemen. Today

9 we'll spend some time continuing our discussions on the statements of

10 Mr. Halilovic.

11 On the 24th March 2005, the Defence filed its written submissions

12 indicating that it would object to the use and admission of the exhibit

13 the Prosecution will seek to introduce through the witness Mr. Okic. This

14 document is a statement of Mr. Halilovic dated 8th November 1993, and it

15 was given in the course of the Trebevic operation.

16 On the 30th of March, 2005, we had some discussions on that issue,

17 and the Prosecution stated that Defence has merely made allegations, most

18 of which, according to the Prosecutor, are hearsay. So we decided to hear

19 the parties on this issue, and the Bench has some questions to the

20 parties.

21 I believe that the first question is addressed to the Defence.

22 Why has the Defence not filed this motion any sooner considering that the

23 statement has been part of the Prosecution's exhibit list since 7th June

24 2002.

25 MR. MORRISSEY: Your Honours, it wasn't appropriate to canvas the

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1 matter before the matter was assigned to the Trial Chamber so we had to

2 wait until that time. Frankly, I can indicate that it was simply a timing

3 question for us and a matter of preparation. We came to this witness in

4 the form that we did. Obviously we'd prepared to some degree to

5 cross-examine in the future, but the reason for the lateness of it is

6 simply that that's -- that's when we arrived at it and that's when we had

7 time to consider the matter. It was simply a time pressure issue in

8 respect of that.

9 Your Honours, if I could indicate -- I'm not sure to what extent

10 it helps but I came into this case -- I first came here in September of

11 last year, and look, there's a history to it. I'll explain it if it helps

12 the Court, but in broad brush that's why, because having weighed up all

13 the matters, I as lead counsel took a decision to challenge it reasonably

14 late.

15 I don't deny and in fact I make it quite clear that at all times I

16 had in mind that it was likely that there'd be a challenge to it, but I

17 just wasn't able to turn my mind to it in the relevant way. I had to rely

18 very heavily on -- I would make that very clear too, Mr. Mettraux, in

19 drafting that document and dealing with it. So that's the answer as to

20 why it was done at the time that it was.

21 The other reason I'd advance about it is, perhaps mistakenly, I

22 hope not mistakenly, I understood that normally speaking that the

23 objections were taken at the time when these documents are to be

24 introduced into evidence, and really it was as out of an abundance of ever

25 caution to do it before Easter because we realised that it contained some

Page 3

1 substantive law, and my learned friend Mr. Mettraux obviously put a

2 considerable amount of work into it. We thought that -- that's why we

3 delivered it before Easter rather than on the day, simply objecting when

4 the witness stood up to give that evidence. But yes, that's the reason

5 why it was done at the time it was, Your Honour.

6 JUDGE LIU: In your submissions, you made several allegations, if

7 I could use this term, that interview used the techniques which were forms

8 of coercion and psychological pressure. The interview lasted up to 17

9 hours a day. Mr. Halilovic was not given access to lawyers at any time

10 during his interview. Mr. Halilovic was not cautioned of his right to

11 remain silent. Mr. Halilovic was not informed of his right to have

12 counsel present during the interview. Mr. Halilovic was not warned that

13 the statement he made may be used in evidence. And there are implicit

14 threat of violence during the interview.

15 Can you be more specific on that issue?

16 MR. MORRISSEY: Well, yes, I can be. It depends how Your Honour

17 wants me to proceed in respect of that. Obviously we have instructions

18 from Mr. Halilovic that he's told us what happened, but I'm not a witness

19 in the case, and I'm not sure whether it's appropriate for me to say what

20 I'm told about that beyond what -- beyond what's in the motion there. And

21 that's I think one of the questions that's going to arise here, do you

22 need to hear evidence about these limited questions, and quite frankly in

23 the common law system, you would need to hear evidence about it. It's not

24 good enough for the barrister simply to make the allegation. If the

25 Prosecution takes issue with the facts that are alleged, then the question

Page 4

1 arises how are they proved and they have to be proved in a normal way.

2 That's the fact.

3 But I can certainly way what the basis of the implicit threat is.

4 The implicit threat is that Mr. Ugljen came along and said to

5 Mr. Halilovic, "we can deal with this whole question another way," meaning

6 that you can answer the -- which was taken to mean, well, you can answer

7 these questions as they're asked or we can think of some other way of

8 dealing with the matter.

9 The context of that other way and that was specifically

10 articulated to -- to Mr. Halilovic, is that he'd been arrested or been --

11 been taken into custody and asked to be questioned concerning Ramiz

12 Delalic, Celo, and Musan Topalovic, Caco, and it was made quite clear to

13 Mr. Halilovic that Caco had by some unfortunate means been killed despite

14 surrendering himself into custody. So that was the context in which that

15 comment was made, and that comment about Caco meeting an untimely death

16 was made to Mr. Halilovic on a number of occasions, and we say that's the

17 basis upon which Mr. Halilovic had a well-founded idea that it was a

18 better idea to answer questions than to keep silent. So that's what that

19 is based upon, and, yes, so that's the answer to that part of

20 Your Honour's question.

21 JUDGE LIU: Thank you. And there are some questions that I would

22 like to address to the Prosecution. Before that, would I like to remind

23 the Prosecution of the Celebici case, that is, the Prosecution has to show

24 that the statement of Mr. Halilovic was given voluntarily, there is no

25 oppressive conduct in obtaining the statement. If the statement was given

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1 without the presence of counsel, whether the accused has voluntarily and

2 expressly agreed to proceed without counsel present.

3 So, Mr. Re, I believe that you have made your submission last

4 time, but we would like to know some more details on this aspect. I

5 wonder whether you would tell us if Mr. Halilovic was given access to the

6 counsel or was informed of his right of remaining silent before taking the

7 interview.

8 MR. RE: I thank Your Honour for the opportunity to address you,

9 to address the Trial Chamber on this aspect. We are, of course, aware of

10 the Celebici case, that the Prosecution must prove that the statement was

11 voluntarily made. There are, of course, as the Trial Chamber appreciates,

12 two people present in the building at the moment who would be able to shed

13 light on the question the Trial Chamber has asked, that is the accused

14 himself, Mr. Halilovic, and Mr. -- Mr. Okic. As Mr. Morrissey rightly

15 points out, he isn't a witness. He wasn't there. He doesn't know what

16 happened. The Defence submissions are full in the Prosecution's

17 submission of assertions which are not supported by any evidence and my

18 learned friend's submission as few moments ago in relation to

19 Mr. Halilovic's treatment, or alleged treatment, at the time of the

20 interview is, again, an assertion which is not supported by any evidence

21 before this Court or even at the very least an affidavit from his client

22 or anything from his client pointing to the circumstances of the

23 detention. The Prosecution can rely only upon what Mr. Okic himself has

24 told us in the statement and in the proofing notes which we have provided.

25 Now, the Prosecution, we say, if we did not have Mr. Okic to give

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1 that evidence, we would not be relying -- we would not be relying upon

2 this document. We would not be trying to put it into evidence. And it is

3 only because we have the person here, one of the only two people in the

4 building who can tell us exactly what happened, here to give that evidence

5 that we are prepared to submit that we say after hearing the evidence of

6 the witness as to the entirety of the circumstances surrounding the taking

7 of the statement. At that point we would submit that it should be

8 tendered into -- into evidence.

9 The difficulty we have at the moment is that we have something on

10 paper. I have conferred with the witness. The witness has confirmed his

11 statement to the Prosecution. But in relation to this witness, we make a

12 further submission, and that is that the witness himself, Mr. Okic, as I

13 informed the Trial Chamber the other day, wanted to speak to the Defence.

14 Now, the reason for that was he thought he was a Defence witness when he

15 came here, and he thought that he'd actually made an agreement with the

16 Defence to be their witness and to come and give evidence for them and he

17 said he signed an agreement with the Defence to be a Defence witness, and

18 we're in this very strange situation on Monday and I was saying, well,

19 this is the first I've heard of it. We haven't heard anything of it, but

20 we'll speak to the Defence and you can speak to him -- speak to the

21 Defence and see what the situation is.

22 Now, that of itself does suggest something in terms of whether the

23 Defence were going to use him as a witness or not, and their view Mr. Okic

24 as a witness of truth. We're only referring to one witness, one statement

25 at the moment. The Prosecution accepts that Mr. Halilovic was interviewed

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1 over a number of days. Now, we don't have -- we don't have evidence on

2 that. We don't have evidence as to the circumstances of his arrest, if in

3 fact he was arrested, whether he was detained, whether he was at home, how

4 he was treated on the other occasions. We don't know anything about that.

5 There's only one person here who does. That's Mr. Halilovic. The

6 evidence we intend to call relates to the interview on the 8th of

7 November, and the witness will say that on that occasion, there are a

8 number of interviews and on that particular occasion Mr. Halilovic did not

9 request a lawyer and a lawyer wasn't present, but this particular

10 interview continued in the same way as all the other ones did, and it's a

11 continuum, but we're concerned with only one of those interviews.

12 So in relation if Your Honour's specific question as to this

13 particular interview, that's something we would have to ask of the

14 witness. The witness will say, I anticipate, he didn't ask for a lawyer

15 and we didn't talk to him about a lawyer on that occasion because he'd

16 been in there. We'd interviewed him on a number of -- I had interviewed

17 him before. I think the first date was on the 31st of August. That was

18 Mr. Okic. I think this was the -- it should say it in the proofing notes,

19 the first -- the first paragraph. Yes. This was actually the second

20 interview. It's in the third paragraph. The 31st of October and the --

21 the 8th of November. So Mr. Okic will say on that occasion, I anticipate,

22 Mr. Halilovic didn't -- didn't request a lawyer.

23 Now, there is no law. Mr. Mettraux of course in his submissions,

24 detailed submission, has quoted from the International Convention on Civil

25 and Political Rights, the American Convention on Human Rights, and the

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1 European Convention, and quoted from the I think it was Article 14(3)(G)

2 of the ICCPR, which is of course the right against self-incrimination.

3 There's nothing in the ICCPR guaranteeing someone the right to a

4 lawyer while being questioned by authorities. There is a right, an

5 absolute privilege against self-incrimination, which of course is -- which

6 of course is enshrined in the statute here. But waiver of the right to a

7 lawyer or having a lawyer there is a different concept altogether.

8 Now, Mr. Okic is the person who can tell us whether or not

9 Mr. Halilovic waived his right to a lawyer in that particular interview,

10 which is where it comes down to the question of whether you decide the

11 interview was voluntarily or whether there was an element of coercion.

12 The Trial Chamber -- in our submission, you can't decide this upon

13 the Defence hearsay assertions, or assertions from the bar table as to how

14 long he was interviewed for and the circumstances. In the Prosecution's

15 submission, some of the -- some of the submissions the Defence has made,

16 and Your Honour read out some of them along the lines of Mr. Halilovic was

17 not given access to a lawyer at any stage during the interview, well,

18 there's no evidence of that. That is -- this is an assertion. It's not

19 footnote -- it's not footnoted because there's no -- there's nothing they

20 can footnote it to. They could footnote it to Mr. Halilovic, and

21 Mr. Halilovic could of course give evidence on this point only for the

22 purposes of determining the admissibility of the record of interview and

23 nothing further.

24 The Defence alleged psychological pressure. They said, paragraph

25 26, "one form of Prosecution witness has indicated that coercive methods

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1 were used during Halilovic's interview," and they're referring to -- and I

2 don't know how you'd properly describe it, but the addendum, if you could

3 describe it that way, to Mr. Popovic's statement which apparently is

4 something Mr. Popovic added later when speaking to Defence investigators

5 in a very -- in a most ambiguous manner it appears to the Prosecution

6 where he refers to "Psychological pressure."

7 Now, I took the liberty of course as I had to in speaking to

8 Mr. Okic who was there with Mr. Popovic if that were correct. It's in the

9 proofing notes. He says -- and he's here to give the evidence that no

10 psychological pressure was applied. But again that's hearsay in the sense

11 that it's not a signed statement. It's a -- it's an assertion contained

12 in a document. It's not a signed edition. It's not an affidavit from

13 Mr. Popovic. It's basically a letter from the lawyer saying he said that

14 to us. It's in a very different category to sworn evidence or a signed

15 statement if Your Honours were considering, considering that, using that

16 as part of your determination.

17 In my respectful submission, the Defence should have brought a

18 signed statement or an affidavit from Mr. Popovic outlining exactly what

19 they mean by psychological pressure. Mr. Okic will of course say that of

20 course everyone was tired at the end of -- at the end of an interview, as

21 everyone is tired at the end of a day in court, and of course everyone is

22 stressed, and of course someone who is being questioned would be -- would

23 be stressed. But the Prosecution takes great issue with the assertions

24 made in the submissions by the Defence in which they say that they --

25 it's basically one step of saying what Mr. Halilovic signed was beaten

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1 out of him. It almost -- it almost goes so far as to that. They refer

2 to coercive methods not quite amounting to torture but pretty much

3 getting there.

4 Now, they're pretty serious allegations to make, and if you're

5 going to make allegations like that you have to bring some proper evidence

6 of it even if it were in the form of an affidavit from their client as to

7 the circumstances of his arrest. We just don't know.

8 So the Prosecution says -- our submission is that the only way

9 that this can be properly determined is from hearing on this very point

10 from the witness who was actually there, Mr. Okic, who in his dealings

11 with the Prosecution hasn't wavered from his view or his professional view

12 and at the time he'd been in the service since 1979. So he was no novice.

13 He was no rookie. He had been there 14 years by the time he took this

14 particular statement, and he's well qualified to talk about the normal

15 methods that were used in interrogating people, the laws under which

16 Mr. Halilovic was interviewed, Mr. Halilovic's demeanour during the

17 interview, whether he was in military uniform, whether he was armed.

18 Mr. Okic will say that he did have his weapon with him. How he came

19 there. He was brought in every day by a military police officer,

20 escorted from, Mr. Okic thinks, Supreme Command Headquarters and an

21 interview conducted, according to Mr. Okic, in a civilised correct, polite

22 manner.

23 The only person we understand who can tell us that is Mr. Okic,

24 and the Prosecution urges upon the Trial Chamber to hear from Mr. Okic

25 about the circumstances of the taking of the statement and then make the

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1 determination as to the admissibility.

2 And that's what I said the other day about the evidentiary onus

3 shifting, because then it becomes a matter of admissibility. If the Trial

4 Chamber determines that it was voluntarily made, it makes it prima facie

5 admissible, the Defence then would have to persuade the Trial Chamber that

6 it should not be admitted, if the Trial Chamber doesn't decide to exclude

7 it under Rule 95 where is where the challenge is being made, but decides

8 it would then turn to the exclusion under 89(D) if you reach the test of

9 89(C). Does that assist?

10 JUDGE LIU: Thank you very much. Let me give you some very

11 initial response from the bench. I believe that this Trial Chamber is

12 governed by the Statute of the Tribunal and the international standards of

13 human rights. It is not bound by any national rules of evidence. As a

14 rule, any evidence obtained by means contrary to international protected

15 human rights is to be excluded according to our Rules, the Rule 95 of the

16 Rules of Procedure.

17 The second issue is that it is not the question whether the

18 accused waived his right to have a counsel. It is a question whether the

19 authority offered him or informed him about his right to have a counsel

20 present at any interviews. That's two different matters.

21 Thirdly, we noticed that the statement of the accused is called

22 additional or supplementary statements, so I believe that is the part of

23 the statement. Maybe often the first page of the statement on the first

24 day of the interview the authority of Mr. Okic says something about the

25 accused's rights. So I wonder whether there's any transcript, tape

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1 record, videotapes available so that to have us to understand that matter.

2 Yes.

3 MR. MORRISSEY: Yes, Your Honour. Well, I fully agree with what

4 Your Honour says there. The Prosecutor gave you a 20-minute answer but

5 the answer to your original question was no, they don't have any evidence

6 that Mr. Halilovic was offered a lawyer, and that seems to be the end of

7 the case. If the Prosecution has got such a transcript or such evidence

8 that he was offered a lawyer, then of course they should be entitled to

9 put that evidence before you. We'd like to see it. So if the Prosecutor

10 says that that's the case, let them say so now and then they may proceed.

11 At the moment, they're calling Mr. Okic, who wasn't there at the

12 first interview.

13 And Your Honours will be aware he -- when my learned friend says

14 there are two people in the building, there is another one they should

15 have called and that was Himzo Popovic. Now, Mr. Popovic was an officer

16 who is the witness they should be calling and they're too scared to in my

17 submission. He was there in the first interview and he was there with an

18 officer named Borisa Delic, and he could say presumably if they call him

19 what happened in the first -- remember that they've got the onus here, of

20 course. So if they wanted to prove what happened at the start and that

21 everything was done properly and Mr. Halilovic wasn't threatened and

22 nobody came and mentioned Caco and Caco's demise and all that sort of

23 thing, then of course they could call one of the officers who was present

24 at that.

25 Actually, they've taken that witness off their list. So,

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1 Your Honour, the current situation is this, that the Prosecutor concedes

2 that they've got no evidence of offering a lawyer to Mr. Halilovic. And

3 when Your Honour asked that question, that was one of the questions I was

4 going to ask in cross-examination if we ever got to that point. It's

5 clear one. But the Prosecutor may have an answer we may not know about so

6 perhaps I better stop and let him answer that question.

7 JUDGE LIU: Mr. Morrissey, before you sit down there's a question

8 to you from the Bench.


10 JUDGE LIU: We allowed Mr. Okic to meet the Defence because the

11 parties agreed on that particular matter, which to me it would be very

12 strange.


14 JUDGE LIU: Would you please give us some explanations on that.

15 MR. MORRISSEY: I will, Your Honour. I'm very happy to.

16 Obviously I found it strange as well, and I mentioned it to the Court

17 because of that.

18 I met with him -- Mr. Re of the Prosecutor sent us an email

19 indicating this desire of Mr. Okic to speak to the Defence, so I then --

20 we then sought to make contact during the day. We couldn't do that. I

21 think from recollection we mentioned it to the Tribunal before we actually

22 spoke to him. I just can't recall now, but I think we did. And then in

23 one of the breaks we spoke to him in a room just there.

24 Now, Mr. Okic apparently was an English speaker. I went there

25 with legal assistant Mr. Cengic and also an intern, both of them who were

Page 14

1 Bosnian speakers, but as it happened Mr. Okic was able to communicate with

2 us in English and we spoke to him. We asked him what it was he had to say

3 to us. We asked also for the Victim and Witnesses Unit person to remain

4 in the room with us, but she said that her procedures were against that.

5 So in terms of what happened in there, we didn't have a tape recorder with

6 us at the time, of course, but so far as the discussion there, I would not

7 have seen any witness alone myself, so that Mr. Cengic and our other legal

8 assistant were present at that time or an intern, actually, were present

9 at that time.

10 Now, the discussion took place. He indicated to us that he had in

11 the past spoken to two Defence investigators a long time ago. Those two

12 are still both Defence investigators. Ms. Delalic is present in court

13 now; she was one of them, and Mr. Dzambasovic, who Your Honours have seen

14 on many occasions here, is the other one to whom he spoke.

15 Because I had the possibility of cross-examining him, I didn't

16 want to ask him any questions because -- depending on whether it was going

17 to be a hostile cross-examination or not we don't know. So I really

18 wasn't concerned to press him greatly. I asked him for some details of

19 what he did and for some details of his impressions. He indicated that he

20 had in the past spoken to those people, that he had expected to hear from

21 them again and that he hadn't heard from them again since that time.

22 Now, I can go into the details of what I asked him if that would

23 help the Court. I'm -- we're not concerned by it, but they were

24 essentially questions about what -- what was his recollection about

25 particular aspects of the interview. One was whether it was a military

Page 15

1 security interview or whether it was being conducted by the state security

2 officers. He gave us an answer. I don't know whether Your Honour wants

3 me to tell you what he told us at that time. I'm happy to if it would

4 help. I must say I -- the whole procedure's highly irregular, and I --

5 you know, as counsel I -- I make it clear to the Court, frankly, that I

6 don't like this proofing that goes on. I'm not comfortable with it. In

7 my system you don't do that. But it may be other systems allow it. The

8 Prosecutors here do it. It leaves counsel open to allegations if a

9 witness says later on look I never did say that to Ms. Chana, you know,

10 this is all being made up. I only said I saw six bodies and Ms. Chana

11 told the Court he saw ten bodies in proofing; that creates a problem.

12 Almost I don't like those things very much and that's -- I must say it was

13 a short conversation. Now I ask the Court, do you want me to tell you

14 what -- what was the questions and answers I had with that witness because

15 I'm very happy to say if that assists. So it's a matter for you,

16 Your Honour. I'm very happy to say it as far as I remember it.

17 I'm sorry, my learned friend Mr. Mettraux also indicates to us

18 that -- that he provided to us at some stage a signed statement concerning

19 his involvement as he remembers it in these matters. So -- and I -- and

20 as is apparent from other witness, there is number of witnesses spoken to

21 by the Defence counsel, most of whom who say they weren't offered 50.000

22 Deutschmarks or had their family threatened. Your Honours, many witnesses

23 were spoken to by Defence investigators over time, many of them, and in

24 many -- in respect of many of them we have statements, Your Honours, and

25 this witness Okic was one such witness who was spoken to.

Page 16

1 Mr. Popovic is another such witness who we spoke to and in fact

2 we've annexed, I believe, a signed copy of Mr. Popovic's statement

3 provided to the Defence to the motion. Your Honours can only guess at the

4 moment, but I suppose it's probable that's why they're not prepared to

5 call Mr. Popovic because they know what's going to say and that's

6 psychological pressure was brought to bear on Sefer Halilovic and Popovic

7 was the senior person, was the person who was conducting the interviews

8 and was there at the start, and was there throughout this month when he

9 was interviewed.

10 Now, Your Honours, that's -- those are specific matters to raise.

11 I've got a few responses to make to my learned friend's lengthy answer but

12 really that wasn't what Your Honours were asking him. You weren't -- as I

13 took it, you were asking him a specific question about the lawyer in that

14 situation, and his answer after all was said and done is they've got no

15 evidence. They can't discharge their onus. The case is finished.

16 If the matter is to go further, well, it can go further but

17 Your Honours have posed the question whether there is something more.

18 Your Honours will bear in mind, of course, that in our materials we've

19 annexed -- we've annexed to that material some further material. The

20 letter from the lawyer is one that's annexed to our motion. The statement

21 of Mr. Popovic is also annexed. It should be pointed out, when my learned

22 friend says that there's an ambiguous answer in there, there's nothing

23 ambiguous about it. Popovic says that psychological pressure was brought

24 to bear and that Mr. Mikhailov was not prepared to put that in the

25 statement. But it should also be pointed out that in a subsequent

Page 17

1 statement taken by the OTP and in particular the investigator named

2 Mr. Ken Corlett who came along after Mr. Mikhailov, presumably to clean up

3 the mess, Your Honours, that statement makes it quite clear that to the

4 OTP he also said that Sefer Halilovic was under "quite strong

5 psychological pressure." And if the Prosecutor wants to draw your

6 attention to that they can. But if they don't, I will.

7 So, Your Honours, rather than respond substantively now, I just

8 perhaps will stop for a moment because I've got some responses but at the

9 moment they're not necessary because at the moment the Prosecutor's

10 telling you that Halilovic wasn't offered a lawyer.

11 JUDGE LIU: Well, Mr. Re, you want to take the floor?

12 MR. RE: Yes, please. Prosecution takes issue with my learned

13 friend's repeated attacks on Mr. Mikhailov. There's no open season on

14 Mr. Mikhailov in this Trial Chamber. He's not entitled to take a shot

15 every -- every day or so and talk about someone else coming in to take --

16 to clean up the mess.

17 My learned friend just made some veiled allegations about the

18 conduct of the Prosecutors here, the lawyers, in relation to not calling

19 Mr. Popovic. My response to that is simply this: Your Honours will be

20 appreciative there have been some changes in the Prosecution lawyers over

21 time, and there were basically a new team came in at the end of last year,

22 and two days ago I moved to put another interview on the list that I only

23 found myself on Tuesday or Monday, I can't remember which one now, when I

24 was preparing for this witness. Now, that says something about the state

25 of preparation in relation to calling witnesses in relation to this

Page 18

1 particular interview, and yes, it did fall short, which explains why we

2 didn't call Mr. Popovic when we were reviewing the witnesses we were to

3 call in this case at the end of last year, at the time when the trial date

4 was set, and we were reducing the number of witnesses from -- I think it

5 was 107 down to 38 live witnesses. We looked at it and saw that there

6 were two witness who is gave evidence of the same record of interview, and

7 we chose one of them. We were not as cognisant as the Defence was of the

8 significance of Mr. Popovic having been at the first interview.

9 There is absolutely nothing sinister about our choosing Mr. Okic

10 over Mr. Popovic, and had we known that there was going to be a challenge

11 to the record of interview, the statement, which arrived, as Your Honour

12 said, last Thursday afternoon, on Easter Thursday late in the afternoon,

13 we would have called Mr. Popovic. We just didn't know. It is rightly a

14 matter that should have been determined in limine before the trial began

15 which would not have allowed us not even to open on these matters, the

16 Trial Chamber having determined that matter.

17 So that's our response as to why we have taken Mr. Popovic off the

18 list. If it assisted the Trial Chamber, we could of course ask to put him

19 back on the list. We have no fear of calling Mr. Popovic to get him to

20 explain what he means by psychological pressure because we are only

21 dealing with one interview and if at the end of the day there is a

22 conflict between two witnesses as to what actually happened in an

23 interview, well, then the Trial Chamber has to make a determination as to

24 who to -- who to -- whose version to prefer.

25 Of course there's always the option of the Court itself -- the

Page 19

1 Trial Chamber itself calling Mr. Popovic if you wish to hear from

2 Mr. Popovic. That option is always open.

3 MR. MORRISSEY: Your Honours, I'm very loath to interrupt and I

4 apologise for doing so but I have to do it on this occasion. The Defence

5 objected to Mr. Popovic being withdrawn from the witness list. Your

6 Honours will recall at one time you were presented with a Prosecution

7 application to withdraw witnesses, and you might remember that -- that

8 application before you were very familiar with the case. But the Defence

9 at that time objected to him, Popovic, being withdrawn. So in light of

10 that I'm astounded by the submissions being made and perhaps my friend may

11 better clarify it because we asked for him to be kept on. Anyway, I'm

12 interrupting but that is an important matter. If my friend wants to raise

13 that now, that better be clarified. That was done in January.

14 MR. RE: Well, had the Defence made it clear they were challenging

15 the statement as they have as of last Thursday, we would have examined

16 Mr. Popovic in another light. I've made that clear.

17 Firstly, we accept that we weren't as prepared as we should have

18 been in relation to this statement; and secondly, we weren't warned that

19 there was a challenge to it. So that's as far as I can take it.

20 The other -- the other thing is, Your Honours, in relation to the

21 right to -- or in relation to whether Mr. Halilovic was advised of his

22 right to counsel, the only evidence if you can call it that which is

23 before the Trial Chamber at the moment is the letter in French and in

24 Bosnian from Mr. Halilovic's family's lawyer, family lawyer, which

25 suggests that he had a -- access to a lawyer. The Defence asserts that he

Page 20

1 was under house arrest and a lawyer made representations to higher

2 authorities, the Presidency. Now, that certainly suggests that he had

3 access to a lawyer at some point.

4 As to transcripts of the -- of any of these interviews, the

5 Prosecution doesn't have audios, transcripts or videos of the interviews.

6 Mr. Okic will say, if he testifies, that he himself was unaware if that

7 particular I view on the 8th of November was being taped or transcribed or

8 videoed. If it was, he wasn't doing it. Although he said because of

9 where they were it could easily have been taped and he wouldn't

10 necessarily have known about it.

11 The Defence in their own motion have said that they have tapes and

12 transcripts. I don't know whether it's transcripts that they have. They

13 have the tapes and some things are different to the statement. Well, one

14 would expect that. A statement is always different to a taped transcript

15 of a -- an interview is always different to a signed statement because

16 statement is a summary. It's a composition as opposed to a narrative or a

17 conversation between two people. They are -- they are of necessity

18 different. The statement is always much, much shorter than a transcript

19 of a conversation.

20 If the Defence have it, I invite the Defence to produce to the

21 Trial Chamber the tape where it says that Mr. Halilovic was in some way

22 coerced or prevented from having access to a lawyer or didn't waive his

23 right to a lawyer, because the Prosecution's submission in relation to

24 this particular one, the 8th of November, is that at that point, he did

25 not ask for a lawyer, and at least in that interview he waived his right

Page 21

1 to a lawyer. Although Mr. Halilovic, of course his family had a lawyer.

2 Mr. Halilovic as an educated general in the army would, of course, have

3 been completely aware of his right or of the fact that he could ask for a

4 lawyer if he wanted to. But he hasn't asked for a lawyer -- we're talking

5 about Bosnian law in 1993.

6 JUDGE LIU: We have spent more than 40 minutes on this issue. We

7 believe that in this situation the rule of the best evidence should

8 prevail. Since we have a witness here outside, maybe the Bench could

9 propose that we'll hear this witness only on the ways and the means to

10 obtain those statement without going to the substance and the contents of

11 that statement. And the Defence will have the full right to cross-examine

12 that witness on any issues they made, so-called allegations.

13 MR. MORRISSEY: Yes. Your Honour, could I just raise a couple of

14 procedural matters about how that should -- how that should happen.

15 JUDGE LIU: Yes.

16 MR. MORRISSEY: Your Honours, frankly, it's entirely proper for

17 that to occur. The Prosecution are entitled to attempt to establish

18 through this witness the relevant facts in a non-leading and proper way

19 and I don't object to that being done.

20 The only issue that I have is -- is to clarify the status of this

21 evidence. The question is, is it admissible in the trial generally or is

22 it just to be limited to this issue. And the reason I raise that is

23 because my learned friend mentioned in an early stage of these discussions

24 the possibility of conducting what he referred to as a voir dire.

25 Now, Your Honours, a voir dire is a device that's used in common

Page 22

1 law situations. It's referred to in the Celebici case. In short terms, a

2 voir dire in the common law system is a device that's used to shield from

3 the jury certain controversial evidence that might be relevant to a

4 particular point of admissibility. In the common law system, the jury is

5 seen as somehow fragile and unable to sort out irrelevant prejudicial

6 material, whereas Your Honours as professional judges can do that and can

7 set aside such material. If you decide to exclude it, you can do so. But

8 nevertheless the device could be useful here and I could understand my

9 learned friend raising it as it did. It pay be it's an appropriate thing

10 to do. But the question is, are we going to use that device with this

11 witness and if the Prosecution chance to satisfy the onus, although at the

12 moment it sounds as if they're not going to, but if they let us assume

13 that something changes and that they do, then the question then arises as

14 to whether other evidence ought to be called for and admitted on that

15 point. It seems to me that it would have to be at least for Mr. Popovic

16 in the current circumstances. Then the Tribunal will have to rule and

17 perhaps create some brief rules about what is the status of this evidence.

18 In the common law system, on a voir dire, the evidence admitted on

19 a voir dire is not evidence on a trial itself. It's just evidence called

20 to assist the court, the trial judge to determine whether or not to admit

21 the evidence. Then once that decision is made that evidence is then set

22 aside entirely. The exhibit or the evidence that's being challenged is

23 admitted into evidence and then Defence must decide whether they want to

24 cross-examine and if they do how to deal with it.

25 THE INTERPRETER: Could counsel please slow down for the benefit

Page 23

1 of the transcript.

2 MR. MORRISSEY: I'm being asked to slow down a little bit there.

3 So that's the way that such evidence is dealt with in the common law

4 system.

5 Now, in this case, it may or may not be useful to do that with Mr.

6 Okic but it probably is necessary to do it with the other evidence in the

7 case. It is also possible in the common law system to admit the evidence

8 from the voir dire later if the parties agree. In other words, if Your

9 Honours make a ruling on material and you exclude the evidence or admit

10 the evidence or say it can be used or can't be used, at a later time the

11 parties might think, we don't need to go over all that again and we could

12 agree to admit that evidence into the evidence as part of the trial. But

13 it is a live issue; it always has to be dealt with in the common system,

14 and it always has to be determined in advance.

15 So I would invite the Court to make to -- to make a ruling about

16 that before we start. My submission is that -- is that we should conduct

17 this as a voir dire in the common law system, whereby the evidence is not

18 admissible on the trial generally but it's relevant solely to the

19 questions that are before the Court and that way it's completely confined.

20 The only cross-examination that's allowed is directly relevant to the

21 question of admissibility and there could be no cross-examination, for

22 example, on the credibility of this witness and that sort of thing. But

23 it's all focused directly upon what he did and what he saw and what --

24 what rights he offered and so on. And it would be a pretty short

25 cross-examination, because I can indicate now that it's not going to be

Page 24

1 said that this particular witness behaved in -- in an -- in an aggressive

2 or threatening way at all. In fact it's the Defence submission that he's

3 being called precisely because he doesn't know much about it. It's

4 precisely for that reason he's being called and not Mr. Popovic. But

5 Your Honours we agree to him being called, and I invite Your Honour to

6 make a rule about the use to be made of that evidence and whether it's

7 solely related to the question before the Court.

8 JUDGE LIU: Any response in.

9 MR. RE: Yes. Firstly Prosecution puts on the record its

10 objection to Mr. Morrissey's repeated allegation that we are behaving

11 improperly by -- it's precisely for that reason he's being called and not

12 Mr. Popovic. I've said this two or three times and I don't want to sound

13 like a broken record.

14 In our respectful submission, this -- having reached this stage is

15 not one which should be treated as a voir dire for this reason. A voir

16 dire, as Mr. -- my learned friend has rightly pointed out in the common

17 law system operates quite normally in -- when determining the

18 admissibility of things such as a record of interview or a statement. But

19 it also has the added advantage if it allows the accused himself to take

20 the stand and give evidence on a very limited basis as to the

21 circumstances of the record of interview. And that is not uncommon at all

22 and I know that's not going to happen here.

23 This witness's evidence is very limited. It's limited to the

24 record of interview and the only other point was as to the reputation of

25 the 9th and 10th Brigade in Sarajevo. That's the only thing.

Page 25

1 Now, I anticipate that the -- that the Defence may well wish to

2 use parts of his evidence at the end of the trial if it goes as to

3 Mr. Halilovic's treatment during Trebevic. So in my submission, in our

4 submission, the evidence should be evidence in the trial and unless the

5 accused himself is going to give evidence as to the nature of the

6 statement, that it's not necessary to treat it as a voir dire.

7 MR. MORRISSEY: I'd have to respond.

8 JUDGE LIU: You have to be very concise.

9 MR. MORRISSEY: I will Your Honour. But the Defence might --

10 depending on what this witness says the Defence might wish to call

11 evidence, for example from the lawyer. For example, if the Prosecution

12 remain in the their position of declining to call Mr. Popovic but

13 continuing to complain about us pointing that out, if they don't call

14 Mr. Popovic we might want to call him. And we'd be entitled to call him

15 because he's a Prosecution witness who is being hidden from the Court by

16 the Prosecutors.

17 MR. RE: I do object. I object to this. I object to this. He

18 keeps saying this.

19 JUDGE LIU: Let's not engage in this kind of argument. There's no

20 use at all.

21 MR. MORRISSEY: Your Honours, the Prosecution, we submit, ought to

22 call Popovic if they refuse to do so the Defence would want to call him.

23 JUDGE LIU: I believe that you are going to have your

24 case-in-chief. You could call whatever witness you like.

25 MR. MORRISSEY: But, Your Honour, in terms of whether you admit

Page 26

1 this document or not, the moment is here, and we can't be denied the

2 opportunity to call evidence that's directly relevant to admitting the

3 document if the Prosecutor says they're not prepared to do it. In any

4 event, I took my learned friend to say earlier on that he wasn't concerned

5 and that the Prosecution was prepared to call him. So if that's the true,

6 then they ought to make arrangements to do that, because it's evident that

7 he might be a relevant witness here. And in any event we should hear this

8 witness now. I understand why Your Honour wants me to be brief because we

9 don't want to keep the witness sitting there, but we need to know where

10 we're headed. Your Honour can't be asked to decide this on a narrow basis

11 that the Prosecutor wants and seeks to advance, namely that he'll call the

12 witness who knows nothing about it and not call the witness who knows more

13 about it and then ask Your Honour to decide. So for that reason you've

14 got to consider whether you should do it on a voir dire or not, and I'd

15 submit that you do have to do it on a voir dire because he's one witness

16 who, if the Prosecution won't call him, we might. We might need to call

17 the lawyer. It's also possible that we would want to call Mr. Halilovic

18 on the application. So in those circumstances, depending on what Mr. Okic

19 says, we might have to choose a number of options and therefore it should

20 be dealt with on the voir dire.

21 JUDGE LIU: Well, I believe we have to make a ruling on this

22 matter. As I said before to the Prosecution, this Bench is governed by

23 the Rules of this Tribunal, and it is not bound by any national rules of

24 evidence, including the common law legal system. So we deliberately not

25 use the special word voir dire, which is for the special purpose of

Page 27

1 admission of the evidence and directed to the juries in some legal

2 systems.

3 As the Defence said that the Judges here in this court, this case,

4 are professional Judges, so we'll hear the evidence of this witness and

5 they are in the transcript rightly recorded, which forms part of the

6 evidence the Court admitted.

7 It is so decided.

8 Could we have the witness at this stage. Yes, Mr. Morrissey.

9 MR. MORRISSEY: Your Honours, we haven't had transcript for the

10 entirety of this discussion, I'm sorry to say. Because it's legal

11 discussion we haven't felt the need for it but I've got a blank screen and

12 I have had that all morning. I just wonder if there could be a brief

13 break before the witness while that's fixed.

14 JUDGE LIU: I see. Let us see how soon that we could fix that

15 screen.

16 MR. MORRISSEY: Yes, thanks.

17 JUDGE LIU: Well, we don't want to put you in a disadvantaged

18 position since we are going to hear the witness, so we'll take a break for

19 about ten minutes, and we'll resume at five minutes past ten.

20 MR. MORRISSEY: Thank you, Your Honour.

21 --- Break taken at 9.54 a.m.

22 --- On resuming at 10.08 a.m.

23 MR. MORRISSEY: Your Honour, the technical problems are fixed.

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

25 MR. RE: Your Honour, could I ask the procedure here.

Page 28

1 Your Honour's ruling -- the Trial Chamber has just ruled as to the use

2 that could be made of this evidence. Yesterday, you mentioned you'd deal

3 with the evidence in two parts. There's only two parts to this witness's

4 evidence. Do you want to -- do you want me to deal with the 9th and the

5 10th at the same time or -- while the witness is here rather than break

6 for more argument as to the admissibility which will come at a later

7 point?

8 JUDGE LIU: Mr. Morrissey, what's your response on that.

9 MR. MORRISSEY: Well, I don't mind --

10 JUDGE LIU: Your microphone, please.

11 MR. MORRISSEY: I'm sorry. I don't mind the witness being add any

12 9th or 10th questions if that needs to be done. Bear in mind, Your

13 Honour, the restrictions Your Honour placed questions concerning the

14 admissibility of the interview. I take it the Prosecutor will continue to

15 respect those and, yes, I think it's -- it would be acceptable for the 9th

16 and the 10th issues to be dealt with at this stage if that's what the

17 Prosecutor wants to do.

18 JUDGE LIU: Yes. Thank you very much for your cooperation.

19 [The witness entered court]

20 JUDGE LIU: So we'll do those two things all together. So there

21 is no strict distinguishing between so-called voir dire and the

22 substantive measures.

23 Well, Witness, I'm sorry for having kept you waiting for so long.

24 Can you hear me?

25 THE WITNESS: [Interpretation] Yes, I can hear you.

Page 29

1 JUDGE LIU: Would you please make the solemn declaration.

2 THE WITNESS: [Interpretation] I solemnly declare that I will speak

3 the truth, the whole truth, and nothing but the truth.

4 JUDGE LIU: Thank you very much. You may sit down, please.


6 [Witness answered through interpreter]

7 JUDGE LIU: Yes, Mr. Re.

8 MR. RE: Thank you.

9 Examined by Mr. Re:

10 Q. Good morning, Mr. Okic. Some preliminary questions. First, your

11 name is Zlatan Okic, your date of birth is the 19th of October, 1955, you

12 live in Sarajevo, and your occupation is -- you're retired, you're a

13 pensioner, you were a former official of Bosnian State Security. Are all

14 those details correct?

15 A. Just one correction. I'm not retired by profession. My

16 profession is a lawyer who is retired. And everything else is correct.

17 Q. And you worked in Bosnian State Security, is it correct, from 1979

18 until your retirement from that position in March 1997?

19 A. That's correct.

20 Q. Were you living in Sarajevo in 1993?

21 A. Yes.

22 Q. Were you then working for Bosnian State Security?

23 A. Yes.

24 Q. Were you aware of two particular army units called the 9th and the

25 10th Brigades in Sarajevo?

Page 30

1 A. Yes, I did.

2 Q. What was their reputation?

3 A. Not great.

4 MR. MORRISSEY: Could I just intervene for a moment.

5 Your Honours, once again this question can't be asked as a double. The

6 reputation of the 9th Brigade is one thing; the reputation of the 10th

7 Brigade is another thing. And the witness has to be asked about those.

8 He can give whatever answers he wants to give but --

9 JUDGE LIU: Yes, Mr. Re. Maybe you could split your question.

10 MR. RE: Not a problem.

11 Q. I'm going to split the question into, firstly, the 9th, and

12 secondly the 10th. What did you know about the 9th Brigade from living in

13 Sarajevo in 1993?

14 A. Is that the brigade whose commander was Musan Topalovic, Caco? Is

15 that correct? Well, they had the reputation for snatching Serbs in an

16 illegal way, without any legal basis. And also, they used to grab people

17 and take them to dig trenches.

18 Q. Where were they grabbing people from?

19 A. Mostly in the streets.

20 Q. Which streets?

21 A. The part of Sarajevo that we tend to call the old town, because

22 that's where the brigade was stationed.

23 Q. Were the people they were taking civilians or military?

24 A. Civilians.

25 Q. Do you know how often this was happening?

Page 31

1 A. I don't know. I haven't counted. But I did hear about such

2 cases. I can't tell you how many exactly.

3 Q. What about a fellow called Ramiz Delalic, called Celo? Do you

4 know --

5 A. Well, both in the 9th and the 10th Brigades there were 95 per cent

6 of patriots and perhaps only 5 per cent of people who were high-ranking

7 people, but they had a pretty bad reputation. Those commanders surrounded

8 themselves by groups of -- well, I don't know whether I should call them

9 common criminals or semi-criminals, but they were there. So they

10 perpetrated certain crimes such as kidnapping of people or looting flats

11 of Serb citizens who had left Sarajevo and so on. That's what I'd heard

12 at the time.

13 Q. What's your view of how widely known these activities were at the

14 time based of course on everything you've heard, seen, that's been

15 communicated to you, and your experiences of having lived in Sarajevo

16 through 1993?

17 JUDGE LIU: Yes, Mr. More so.

18 MR. MORRISSEY: Based on all of those matters, it's just asking

19 the witness to guess and speculate and I object to the question.

20 JUDGE LIU: Perhaps you could pursue your question another way,

21 Mr. Re.

22 MR. RE:

23 Q. I just ask you to clarify the last answer. You said the

24 commanders in the 9th and the 10th surrounded themselves with common

25 criminals, and then you said so they perpetrated certain crimes such as

Page 32

1 kidnapping of people or looting of flats. Who is the "they" you're

2 referring to? Are you talking about commanders or the people they

3 surrounded themselves with?

4 A. Ramiz Delalic, well I'm not sure about Musan Topalovic, but Ramiz

5 Delalic, as far as I know, had problems with police, and they were the top

6 people within the brigade, and they also selected other people of the same

7 ilk and put them within the staff of the brigade to keep themselves in

8 power.

9 Q. You referred to crimes such as kidnapping and looting flats of

10 Serb civilians and so on. What's the so on? What other crimes did you

11 hear of committed by members of the 9th and 10th Brigades?

12 MR. MORRISSEY: Your Honours once again I would ask that the

13 witness be specified when he's talking about member of the 9th Brigade or

14 the 10th Brigade.

15 MR. RE: I'm referring to -- his last answer was the 9th and the

16 10th.

17 JUDGE LIU: Yes, I believe so, that the witness himself answered

18 the 9th and 10th Brigade altogether.

19 MR. MORRISSEY: Yes. Well if that's the way the question's put, I

20 don't object to it.

21 MR. RE:

22 Q. What's the so on you're referring to, apart from kidnapping and

23 looting of flats of Serb people?

24 A. Mostly that. Perhaps -- yeah, basically those were the two main

25 types of criminal activity that they engaged in. Perhaps there were a

Page 33

1 couple of other things such as smuggling or things along those lines. But

2 the 9th Brigade was much more involved on the basis of what I'd heard,

3 much more involved in those dealings than the 10th Brigade.

4 MR. MORRISSEY: Your Honours, could I just intervene there. I

5 just think it ought to be clarified. The witness give an answer early on

6 when he was asked about the 9th -- the 9th Brigade and the 10th Brigade,

7 and he asked whether the 9th Brigade was Caco's brigade. Now it has to be

8 clarified which one he's talking about here. When he says the 9th Brigade

9 does he mean Caco's brigade or Celo's brigade because that is a matter of

10 importance in the case Your Honours will recall that answer earlier on. I

11 didn't object at the time. The witness is entitled to answer of course

12 but I think that should be clarified.

13 JUDGE LIU: Yes. Yes, of course.

14 MR. RE: There's no problem at all with that, no.

15 Q. When you're referring to the 9th and the 10th, you've mentioned

16 Caco and Celo, which one --

17 A. As far as I can remember, Caco was the commander of the 9th

18 Brigade and Ramiz Delalic, Celo, was the commander of the 10th Brigade.

19 Afterwards, Celo had been made deputy commander. He was not the commander

20 any longer. But as far as I know, he was still in charge. But I really

21 can't remember when exactly it was that he was demoted.

22 Q. The kidnapping you referred to a few moments ago, was that the

23 taking of people, civilians, to the trenches or was it another form of

24 kidnapping you're referring to?

25 A. At that time, I only heard of civilians being taken to dig the

Page 34

1 trenches. But after the war, I heard and I actually read about people

2 having been killed and having been thrown into a ravine called Kazani, in

3 the vicinity of Sarajevo, but I only read it in the papers afterwards,

4 after there were first accounts published about the war and war crimes.

5 But during the war I only heard about civilians being taken to dig

6 trenches.

7 Q. Just confining it for the moment to what you heard or told during

8 the war itself, were the things you've just described, the kidnapping,

9 looting, trench digging, things you heard about in the course of your

10 duties or heard about outside of work or a combination?

11 A. Both. And I felt it firsthand. I mean, in my own case I've

12 experienced it.

13 Q. What was your own firsthand experience, Mr. Okic?

14 A. I myself had been kidnapped, and I spent 24 hours digging

15 trenches.

16 Q. Could you tell the Trial Chamber about that? When was that?

17 A. That was before that so-called -- well, rather, I don't remember

18 the date. It was before that brigade was disarmed and the leadership

19 removed.

20 Q. Was it in 1993?

21 A. Yes.

22 Q. And whose brigade -- who was the commander of the brigade that

23 kidnapped you?

24 A. Caco.

25 Q. Where were you kidnapped from?

Page 35

1 A. From the street.

2 Q. What were you doing?

3 A. I was going to visit a colleague at his flat. He had invited me

4 to lunch, and -- well. Nothing. I was just surrounded, and there were

5 other civilians there, and I was taken to do the digging.

6 Q. Whereabouts? In the streets? In where? Was it central Sarajevo

7 or somewhere else?

8 A. Almost the very centre of town. It is a place where we have a

9 monument to the people who liberated Sarajevo after World War II, and it's

10 called the eternal fire, vjecna vatra, and that's where I was taken.

11 Q. How many -- how many people surrounded you?

12 A. Five or six.

13 Q. Were they in uniform?

14 A. Yes. Well, what I mean was if you were wearing just a

15 military-looking jacket or fatigue trousers or something, that was

16 considered to be a uniform, because our armed forces were not particularly

17 well-equipped at the time.

18 Q. How did you know they were from Caco's brigade?

19 A. Where I was taken to that part of town, there was the commander of

20 the 9th Brigade there.

21 Q. I'm sorry, you were taken where?

22 A. Close to their command and their headquarters. And then we were

23 taken to dig trenches.

24 Q. Were you taken to see Caco himself?

25 A. No. No, no, no.

Page 36

1 Q. Were you asked for identification when these people stopped you?

2 A. Yes. And I showed them my official ID but without any success.

3 Q. Your official ID, was that Ministry of the Interior ID?

4 A. Yes.

5 Q. Was that the ID that all officials of the Ministry of the Interior

6 carried with them?

7 A. Yes.

8 Q. What about the other people? How many other people were taken,

9 were kidnapped with you?

10 A. Perhaps a dozen. Ten to 15 thereabouts.

11 Q. Were you all captured at the same time in the same spot?

12 A. In the same area, perhaps within a hundred or 200-metre range.

13 Q. How were you transported to the headquarters and -- or the area

14 near the headquarters and then to the trenches?

15 A. A van came along, and then we were taken by van, and behind us

16 there was a car with the armed members of the 9th Brigade.

17 Q. And with the five or six who surrounded you that were uniformed,

18 were they armed?

19 A. Yes.

20 Q. Did you have any choice as to whether or not you went with them?

21 A. [No interpretation]

22 Q. You said you were taken to -- I don't think we got an answer on

23 the transcript to the last question. Just to repeat it, I asked you, did

24 you have any choice as to whether or not you went with them, and I think

25 you said no.

Page 37

1 A. No, I had no choice.

2 Q. Did any of the people with you, the dozen or so who were also --

3 or sorry, the 10 to 15 you referred to, did they -- they likewise have no

4 choice as to whether they went?

5 A. I don't believe so. Had they had any choice, they would have

6 left.

7 Q. What about the car with the armed members of the 9th Brigade

8 behind you? How many people were in that and what was the function of

9 that car full of armed members of the 9th Brigade?

10 A. There were about three or four of them in the car, and they were

11 there in order to prevent us from fleeing from the van.

12 Q. Where were you taken to?

13 A. First of all into a courtyard of a house which was close to the

14 headquarters of the brigade and then to dig trenches.

15 Q. Why did you go to the courtyard of the house close to the

16 headquarters?

17 A. A member of the brigade, I don't know his name now, he explained

18 to us that fighters could not do the digging and we as civilians had to

19 make our contribution to the defence of Sarajevo, and so that was it.

20 Q. And then?

21 A. Well, and then I was taken to the front line, and together with

22 the other two people I was given the task to start digging.

23 Q. Where were the Serb positions relative to where you were?

24 A. I didn't see them myself, but I heard that they were a couple of

25 hundred metres above us.

Page 38

1 Q. Was there any firing?

2 A. No. No one fired at us, not as long as I was there.

3 Q. You said there were three of you given the task to start digging.

4 What happened to the -- the other 12 or so people who were also taken from

5 the streets that day?

6 A. The other people left to -- for different places to dig trenches

7 too.

8 Q. Were you guarded when you were digging trenches?

9 A. No.

10 Q. Were there members of the 9th Brigade there with you when you were

11 digging the trenches?

12 A. Not where we were, further down. We could only run up towards the

13 Serb-held positions or -- or run down the hill to where they were.

14 Q. I assume -- I take it that they were armed.

15 A. You mean members of the 9th Brigade.

16 Q. Yes.

17 A. Of course.

18 Q. How long were you there for?

19 A. Twenty-four hours. The next day at noon I was set free.

20 Q. Where did you stay that night?

21 A. Near the positions held by the 9th Brigade. There was an

22 abandoned house and that's where we spent the night. We were given

23 dinner, something to eat, and we spent the night there.

24 Q. You said the next day at noon you were set free. How were you set

25 free?

Page 39

1 A. A member of the 9th Brigade came along, called my name and

2 said, "You're free to go. Go home now."

3 Q. And how did you go home?

4 A. I didn't go home. I went straight to the ministry. I walked.

5 Q. And how far was that?

6 A. Maybe about a kilometre, kilometre and a half, maybe two,

7 thereabouts.

8 Q. Were you wearing civilian clothes while you were at the front line

9 digging trenches?

10 A. Yes.

11 Q. And the other people --

12 A. Yes.

13 Q. -- Who had been taken with you were they likewise wearing clothes?

14 A. My own clothes, yes.

15 Q. What did you do when you went back to the ministry?

16 A. I told my bosses and my colleagues what had happened to me. That

17 was the only thing could you do at the time, the only choice you had.

18 Q. What was their response?

19 A. They said, "Tough luck." What else could they have told me? They

20 said, "You should watch yourself next time round."

21 Q. What were your feelings or what were you experiencing when you

22 were at the front line digging trenches?

23 MR. MORRISSEY: Excuse me. Your Honours, I haven't interrupted up

24 to now because this trench digging that's been featured and the Court's

25 entitled to have some view of what happened there but I -- this really

Page 40

1 goes to the question of what Mr. Halilovic knew about the reputation of

2 these brigades, and therefore the questions -- while the witness can

3 answer in good faith as to them, the fact is it's now getting to a point

4 of remoteness from relevance to Mr. Halilovic at all. What this

5 particular witness felt about what happened to him or felt when he was at

6 the front line. So I object to it as not being relevant to the

7 proceedings against Halilovic now.

8 JUDGE LIU: Well, now it's very difficult for us to say that it's

9 relevant or irrelevant and at later stage we have to piece all the

10 evidence together one by one together. So somehow like the crime base

11 evidence in such circumstances and the -- and the -- I believe somebody

12 else will testify about linkage at a later stage. But at this stage, we

13 will allow this evidence to come in.

14 MR. MORRISSEY: As the Court pleases.

15 JUDGE LIU: You may proceed, Mr. Re.

16 MR. RE: May it please the Court.

17 Q. Mr. Okic, I was just asking you about your feelings, what you were

18 experiencing when you were at the front line. How did you feel?

19 A. Yes. Well, while I was digging, I was feeling bad about it,

20 bitter about the whole thing. However, later on when I sat down to do

21 some thinking, I was no longer as bitter. At least I'd been given a

22 chance to see what the front line was like. I had a chance to see how

23 soldiers lived at the front line. I realised what a tough time they were

24 having. How difficult it was to dig trenches, to hold on the Defence

25 lines, how difficult the whole thing was. So I stopped feeling bitter and

Page 41

1 furious with those people. I kept telling myself, well, never mind. At

2 least now you had a chance to see for yourself what it's like.

3 Q. Apart from the -- the philosophical hindsight on this, when you

4 were actually there you said you were feeling bitter. Did you experience

5 any fear or danger?

6 MR. MORRISSEY: That's now leading and, frankly, Mr. Re, not

7 having got the answer he wanted is now trying again. I object to it.

8 JUDGE LIU: Yes. Yes.

9 MR. RE: The witness answered about his feelings afterwards. I'm

10 just taking him to his feelings about what he was experiencing on the day.

11 JUDGE LIU: Well, you may directly ask this question. What was

12 his feeling on that day.

13 MR. RE: Thank you.

14 Q. What were you feeling on the day when you were at the front line

15 digging trenches, the Serb positions up the hill and the 9th Brigade down

16 the hill? You're in the middle.

17 MR. MORRISSEY: I object to this. It's like somebody performing a

18 card trick here, frankly. The witness has given a direct answer. He said

19 he was feeling bitter. Now, he can be asked why he was feeling bitter or

20 how he was feeling bitter, but that's the answer. It was a direct

21 relevant and responsive answer to the question, and my friend can't

22 really, skilful though it is, is not entitled to do it. So I object.

23 JUDGE LIU: Mr. Re, ask a simple question.

24 MR. RE: I'll rephrase it.

25 Q. Mr. Okic, you said you were feeling bad and bitter. What was

Page 42

1 bad -- what was the badness and the bitterness of your experience on the

2 day of your trench digging?

3 A. Well, it was on account of the way the whole thing happened. It

4 happened in a very bad way, ugly. However, when I thought it over later

5 on, I was resigned to look at it philosophically, and I tried to look on

6 the brighter side of what happened.

7 Q. Were you given a weapon or any means of defending yourself when

8 you were between the two front-line positions?

9 MR. MORRISSEY: Just a moment, just a moment, just a moment. He

10 didn't say he was between the two front line positions. This is now

11 beginning to sound like the Battle of the Somme. Your Honour, he didn't

12 say that at all and I object to this form of cross-examination frankly

13 where assumptions are built into questions that are not agreed to in

14 previous evidence, and as a particular example I object to this question.

15 MR. RE: The evidence is the Serbs are up the hill and the 9th

16 Brigade was behind him. If that's not between the two positions I don't

17 know what it is, where it is.

18 JUDGE LIU: I think the main progress is to know whether the

19 witness has any means to defend himself. Just stick to that point. I

20 think that's good enough.

21 MR. RE:

22 Q. Did you have any reasons to defend yourself?

23 A. No. No. We only had our spades and picks.

24 Q. What did you consider the state of your personal safety to be when

25 you were digging trenches on that day?

Page 43

1 A. At the outset, there was a bit of fear perhaps that we might get

2 hit by sniper. Two or three hours later, however, we concluded there

3 wouldn't be any fighting on the day, and we managed to even relax a

4 little. We weren't that worried about ourselves.

5 Q. You mentioned sniping. Was there any shelling on at that day?

6 A. No. No. Not where I was. Not on that day. No firing, no

7 shelling, no nothing. It is entirely peaceful. The next day, until the

8 moment I was released, it had been very peaceful also.

9 Q. Was anyone else that you knew in Sarajevo kidnapped like you were

10 and taken to the front line to dig trenches?

11 A. None of the people I knew, but there were quite many people who

12 were taken away like that whom I know of personally.

13 Q. Can you -- can you give us a rough figure?

14 A. No. I have no idea.

15 Q. Well, I mean is it in single -- two hands, dozens, hundreds, one

16 to five?

17 A. I don't know. I don't know. I don't know. You know, people said

18 all sorts of things. Sometimes people tend to exaggerate. I'm not sure

19 if we're talking about dozens of people or hundreds. I really have no

20 clue. It was a matter much common knowledge that people were being taken

21 to dig trenches, but I don't know how many. I never tried to learn the

22 exact figure.

23 Q. Moving to the Ministry of the Interior and the work you were doing

24 during the war, I just want you to generally tell the Trial Chamber the

25 structure of the Ministry of the Interior and where you fitted into it.

Page 44

1 Bosnian state security, I think we've heard evidence of, was part of the

2 Ministry of the Interior. How many departments or sub-departments were in

3 the MUP in 1993?

4 A. I can't say. When I retired, I signed a statement to the effect

5 that I would not be giving away any state secrets. Therefore, I'm more

6 than slightly reluctant to discuss this.

7 Q. I'm not actually asking you at this point or at any other point to

8 give away any state secrets. I'm just asking you about the general

9 structure in the most general terms of the Ministry of the Interior. Like

10 there's civilian police within it. There's security officials. That's

11 all I'm asking you at the moment.

12 A. Yes, civilian police, state security, crime squad. Those were all

13 part of the Ministry of the Interior, but I'm not sure how exactly they

14 were structured. I'm not familiar with all these details.

15 Q. But in any event, the three you've just mentioned, civilian

16 police, state security, and the crime squad, did they all report to the

17 Ministry of the Interior?

18 A. Yes.

19 Q. And the section you worked in, the state security, was a separate,

20 discrete part of the ministry reporting to the minister, separately to the

21 civilian police; is that correct?

22 A. Not really a discrete part. All of us who worked with the State

23 Security department were only discrete about our jobs. Everyone at the

24 ministry knew who was with the state security, who was with the crime

25 squad or who was with the police, but we all knew only about our own jobs.

Page 45

1 Q. I think there's no dispute here that -- about the powers of

2 civilian police in terms of investigating crimes committed and taken

3 into -- and bringing them -- and -- the investigation of crimes. I want

4 to ask you about state security officials within the Ministry of the

5 Interior. Was there any difference between the powers you as a state

6 security official had and those that the civilian police had in terms

7 of -- I will get to it, Mr. Morrissey, I can see you're about to object.

8 MR. MORRISSEY: Hang on a minute. Your Honour, I do object

9 because the Prosecutor here has raised this issue. It's not the witness's

10 fault. He said there's no dispute here about the powers of the civilian

11 police in terms of investigating crimes committed and taken into and

12 bringing the -- them and the investigation of crimes.

13 Now, I don't know whether there's any dispute because I don't know

14 what evidence the Prosecutor's proposing to lead about that at the moment,

15 so when the Prosecutor says there is no dispute, the Defence wants to be

16 clear that we don't know if there's a dispute or not. But in any event,

17 to put that to the witness has no function at all, and my friend should

18 just ask the witness the question he wants to ask him without any preamble

19 about the Defence which we haven't agreed to.

20 JUDGE LIU: Yes. Yes. Just ask the simple question.

21 MR. RE: I will. I know there was a very long objection. I was

22 just trying to speed the proceedings up a little bit. I thought there

23 would be no dispute that the police have the powers to arrest and

24 investigate offences. That's all I'm getting at.

25 Q. Now, Mr. Okic, it's true that the police had the powers to arrest

Page 46

1 and investigate people in 1993, investigate crimes?

2 A. The same as always.

3 Q. Did you have -- were your powers as a Bosnian state security

4 official different to those of the police in terms of arresting and

5 investigating crimes?

6 A. The powers were the same for someone on the beat and the minister

7 of the interior himself. They both had the same powers. They both had

8 the same kind of ID. The difference was that the state security

9 department dealt with political crime, and the crime squad dealt with

10 non-political crime in a manner of speaking.

11 It's only about the type of business they dealt with, but the

12 authority and the powers were shared equally.

13 Q. And in 1993, what were those powers of arrest and investigation?

14 What could police and security officials do?

15 A. Yes. If there was a crime with a political background, in

16 principle we could arrest the perpetrator. We could initiate an

17 investigation. We could do what police usually do. We could search their

18 flat. We could interview witnesses. We could gather evidence. All the

19 usual steps that are taken by all secret services throughout the world.

20 Q. Did you require a judicial warrant to do any of the things you've

21 just mentioned?

22 A. No. These steps and measures were approved by our own bosses, the

23 minister and the chief of the state security department.

24 Q. What were your powers of arrest? When could you exercise them, in

25 what circumstances?

Page 47

1 A. Only if there was sufficient proof that a person had committed a

2 political crime.

3 Q. What -- what constituted sufficient proof for the purposes of

4 arrest?

5 A. A report, for example, that a crime was committed, something

6 reliable, trustworthy, a credible source. Material evidence, of course,

7 anything that was gathered, witness statements, information obtained by

8 taking secret measures, that sort of thing.

9 Q. When you say "secret measures," are you talking about things like

10 telephone tapping or surveillance or other forms of covert interception?

11 A. Naturally. All secret services engage in that type of action. So

12 did we.

13 Q. What powers, if any, did you have to detain people following

14 arrest after you had gathered this information, all the information

15 sufficient to ground an arrest?

16 A. Our powers were enshrined in certain criminal provisions of the

17 Criminal Code and the Law on Criminal Procedure as well as a number of

18 internal rules that we had that had been adopted from the previous system,

19 the old system. The new government probably hadn't had sufficient time to

20 change those.

21 Q. Was there a length -- a length prescribed in which a person could

22 be detained for questioning or for any other reason?

23 A. As far as I remember, from the pre-war period, up to three months.

24 Under exceptional circumstances, but only under exceptional circumstances,

25 up to six months.

Page 48

1 Q. Who -- who was empowered to authorise the detention for that

2 period?

3 A. There was a distinction between nationals and foreigners. For

4 nationals, chief of the state security. In sensitive cases, the minister

5 of the interior. And in case of foreigners, it could only have been

6 authorised by the minister of foreign affairs himself.

7 Q. Could a person -- did a person in detention have any right to

8 judicial review of the detention of up to three months?

9 A. Of course. Everyone was entitled to file a complaint, and the

10 prison administration would forward this complaint -- this complaint, as a

11 rule, to the public prosecutor, to the relevant court, or to us.

12 Q. What constituted exceptional circumstances?

13 MR. MORRISSEY: Will you just permit me -- Excuse me for just a

14 moment, Mr. Okic.

15 Your Honours, frankly this evidence may be capable of assisting

16 the Tribunal and I don't object to it being given, but it has to be made

17 clear whether this evidence is being led as expert evidence, in which

18 case -- and explaining the Rules, generally speaking, in which case the

19 rules ought to be put before the Court at the same time, or if it's just a

20 basis for this witness's actions, in which case they don't need to be put

21 before the Court by the Prosecutor. But if it's a general analysis which

22 it is at the moment, abstract analysis of the law, then this witness may

23 or may not be in a position to give that evidence generally. He is in a

24 position to give, of course, evidence relevant to what he did and I don't

25 object to it. Frankly I can see why this evidence might be helpful but it

Page 49

1 has to be clarified on what basis it's being led, because in my submission

2 if these provisions to which Mr. Okic is now speaking arise from

3 particular sections of the Criminal Code or indeed from the -- from the

4 procedures to which he's referred, then we ought to have those in front of

5 us in court.

6 JUDGE LIU: I don't think we'll go into the specific rules of the

7 Criminal Code at this stage. I believe this witness is entitled and is

8 capable to answer some questions in this aspect. We'll see how far the

9 questions will go.

10 MR. MORRISSEY: Yes. As the Court pleases.

11 JUDGE LIU: You may proceed, Mr. Re.

12 THE WITNESS: [Interpretation] I have an observation to make. It

13 says that in relation to foreigners only the Minister of Foreign Affairs

14 had the power to order their detention, and I corrected myself to say that

15 it was in fact the minister of the interior.

16 MR. RE:

17 Q. You're reading that from the transcript in English?

18 A. Yes.

19 Q. I see. The correction has been made. I was just asking you about

20 exceptional circumstances. You said someone could be detained, I think,

21 up to three months in exceptional circumstances. Can you just tell the

22 Trial Chamber what constituted exceptional circumstances?

23 A. For example, if we were dealing with a particularly grave crime or

24 a group of people where the investigation entailed a lot more than was

25 usual, if I not mistaken, this was the case with the arrest of

Page 50

1 Mr. Alija Izetbegovic and the 12 people who were with him.

2 Q. The transcript says Mr. Alija Izetbegovic. Can you just have a

3 look at that. Are you referring to Mr. Izetbegovic's arrest in the 1980s

4 or something else?

5 A. 1983, yes, 1983.

6 Q. Was that system still in place in 1993, as of October, November

7 1993?

8 A. I don't know if it was still in place, but that was the system we

9 used.

10 Q. Were there rules governing the arrest, interrogation, and

11 detention of suspects in October and November 1993?

12 A. As I have said before, those were rules enshrined in the Criminal

13 Code, the Law on Criminal Procedure, and our internal book of rules.

14 Q. In 1993 at the relevant period, who was the chief of state

15 security?

16 A. Mr. Nedzad Ugljen.

17 Q. He was your ultimate superior. Were there any levels between you

18 and him or did you report directly to him, without giving away any state

19 secrets, did you report directly to him or to someone else and then to

20 him?

21 A. At the time I had my immediate superior who answered to

22 Mr. Ugljen.

23 Q. Did Mr. Ugljen give you a specific task towards the end of 1993

24 relevant to these proceedings?

25 A. He appointed me as member of the team that was to interview

Page 51

1 Mr. Halilovic, who was under investigation by the military security

2 service and state security service at the time.

3 Q. Was it a joint investigation?

4 A. Yes. Yes, roughly speaking.

5 Q. Why were you selected?

6 A. I have no idea. Someone had to be selected.

7 Q. What were you were told -- what were you told that he was under

8 investigation for?

9 A. Supposed armed uprisings within the 9th and the 10th brigades, and

10 in a way Mr. Halilovic had links to that.

11 Q. What were you told these were [microphone not activated]?

12 A. I was told by Mr. -- no. I was told that he had a good

13 relationship with the commanders of the 9th and the 10th Brigade, and when

14 he was replaced that he had asked them to bring pressure to bear upon the

15 then political leadership of the country and asked them to reappoint --

16 reappoint him as the commander of the BH army.

17 Q. When was this supposed armed uprising said to have occurred?

18 A. I can't remember the exact date, but it was of course prior to

19 Mr. Halilovic's arrest. I don't know. I really can't remember exactly.

20 Q. What were you told or what did you know about this supposed armed

21 uprising?

22 A. I didn't know much about that armed uprising because it was not

23 linked to my usual work at the time, so I only knew from hearsay that

24 apparently the 9th and the 10th Brigade rose up against the military and

25 civilian authorities, but I wasn't paying much attention to that. I was

Page 52

1 not really interested up until the point when Mr. Ugljen appointed me as a

2 member of the team to talk to Mr. Halilovic.

3 Q. Before you were asked -- before Mr. Ugljen asked you to --

4 reported you to speak Mr. Halilovic, were you involved in an incident in

5 July of 1993 involving the 9th and 10th Brigades?

6 A. I had heard of it.

7 Q. Was that the armed uprising that you were asked to speak to

8 Mr. Halilovic about or was it something else?

9 A. I suppose that's what it's about. I suppose that's the event

10 you're referring to.

11 Q. What were you told about the pressure that Mr. Halilovic had

12 allegedly tried to get the 9th and the 10th Brigade to bring to bear on

13 the political leadership of the country? What was that about?

14 A. I was told that I should clarify that and clarify his role with

15 regard to his links to Caco and to Celo and would -- he had asked them

16 to -- to do it, to bring pressure to bear upon the then top political and

17 military people and ask for him to be reappointed at the time. And I mean

18 only when I was asked to participate in those talks. I hadn't been

19 briefed a great deal except for what I just said, and afterwards I found

20 out more from Mr. Halilovic himself and Mr. Ugljen told me a few things.

21 But it wasn't much more than what I was told at the very start of the

22 investigation.

23 Q. And you just said asked for him to be reappointed at the time.

24 Two supplementary questions. Reappointed to what and at what time?

25 A. To be reappointed as commander of the Chief of Staff of the armed

Page 53

1 forces of Bosnia and Herzegovina.

2 Q. And the time frame?

3 A. I don't quite understand.

4 Q. You said he asked -- he -- he was allegedly bringing pressure or

5 getting Caco and Celo to bring pressure upon the top military people and

6 ask for -- asking for him to be reappointed as the commander of the chief

7 of the armed force answer you said at that time. I just want you to

8 clarify which -- at that time. It's at line 52, page 52, line 3 -- line 4

9 of the transcript.

10 A. It was before the uprising at any rate. The supposed uprising.

11 Q. The information you've just given us now, was that what Mr. Ugljen

12 told you?

13 A. Yes. That was the essence of it. I don't remember everything,

14 but apparently through contracts with Caco and Celo he had asked him to

15 exert some pressure more on the political authorities not so much military

16 for him to be reappointed. And that was supposed to be the main subject

17 to be investigated.

18 Q. When did Mr. Ugljen give you these instructions and appoint you to

19 interview Mr. Halilovic?

20 A. If I remember correctly, by the beginning of October.

21 Q. When you say --

22 A. The first part of October, thereabouts.

23 Q. Were you provided with any information apart from Mr. Ugljen

24 telling you these things? Did you get any documents or dossier or a brief

25 or access to intelligence or surveillance information?

Page 54

1 A. No. I received no papers. I didn't get a dossier or any report

2 or anything. Mr. Ugljen was telling me things and I was taking them down.

3 Q. At what time do you wish to take the break? I'm --

4 JUDGE LIU: Well, if you believe that is the right time, we could

5 take the break right now.

6 MR. RE: I'm entirely in your hands.

7 JUDGE LIU: Maybe we'll take a break and we'll resume at twenty

8 minutes to twelve.

9 --- Recess taken at 11.09 a.m.

10 --- On resuming at 11.41 a.m.

11 JUDGE LIU: Well, as for the time arrangement, we'll sit for about

12 an hour, then we'll have a short break, 15 or 20 minutes, and then we'll

13 continue until 1.45 in the afternoon. We hope we can send this witness

14 back home to spend the weekend. So if necessary, there might be a

15 possibility that we have to sit in the afternoon.

16 Yes, Mr. Re.

17 MR. RE:

18 Q. Before the break, Mr. Okic, you told the Trial Chamber that you

19 didn't receive any papers from Mr. Ugljen, a report or a dossier. He was

20 telling you things and you wrote down notes. Apart from Mr. Ugljen, did

21 anyone else in the process of your interviewing Mr. Halilovic give you any

22 documents or access to any material relevant to your inquiries?

23 A. There is a possibility that I might have heard something in

24 relation to Mr. Halilovic from a colleague or something, but as to the

25 most essential, the most fundamental things and the instructions, not just

Page 55

1 the information but instructions as well, it was only Mr. Ugljen who

2 issued those.

3 Q. Before you commenced your interviews with Mr. Halilovic, were you

4 aware or made aware of whether or not his -- he had been under

5 surveillance, such as having his telephone tapped or being followed or any

6 other means of surveillance were employed against him?

7 A. I had not been told, but I assumed that it would have been the

8 case.

9 Q. Were you ever given access to anything that suggest -- anything

10 relating to surveillance such as tapes or transcripts or photographs or

11 information relating to covert surveillance?

12 A. No. No. But on the basis of the instructions I received from

13 Mr. Ugljen, I assumed that such covert operations were aimed at

14 Mr. Halilovic.

15 Q. What -- what preparations did you undertake before you interviewed

16 Mr. Halilovic? I mean, what did you do to prepare yourself for the task

17 of interviewing him?

18 A. Well, I talked to my colleague from the military security,

19 Mr. Popovic. He was with me up until the end of those talks. First of

20 all, I talked to him to try and find out what they knew, because I was not

21 a part of that investigation from the start.

22 Q. How times did you meet Mr. Popovic and where did you meet him

23 before you commenced your interviews with Mr. Halilovic?

24 A. We met at the offices of the state security, and before we started

25 talking, I mean before we started those talks together, there was a

Page 56

1 meeting at which he briefed me about what they had managed to find out in

2 the course of previous conversations, and then we planned what we would do

3 on that day, what we were supposed to talk about in line with instructions

4 I got from Mr. Ugljen, and he got the instructions from his bosses.

5 Q. What were your plans as to how you and Mr. Popovic -- firstly,

6 I'll just go back for a moment. Was the plan for you and Mr. Popovic to

7 interview him together?

8 A. By all means.

9 Q. Mr. Popovic, was he coming from military security?

10 A. Yes. At the time, he was a major.

11 Q. His expertise was military security. What was your -- what was

12 the expertise you were bringing to the interviews?

13 A. I was an expert for state security, if I can say that, the

14 civilian side of it.

15 Q. Did you and Mr. Popovic devise a plan as to how you were to

16 interview Mr. Halilovic and, if so, what was it?

17 A. Before every interview, we would have prepared a list of topics,

18 one or more topics that we were supposed to be talking about on that day,

19 and we -- we would agree on that before the start of the interview. And

20 if it was one topic only and -- well, sometimes we had more than one, and

21 then we thought, okay, we'll do as much as we can.

22 Q. What these topics in general terms?

23 A. We started out by discussing his career within the armed forces of

24 Yugoslavia and the cooperation with the former military security service

25 of the former Yugoslav People's Army, and then we moved on to other topics

Page 57

1 such as the armed uprising, the war crime at Grabovica, the fall of Cerska

2 and Konjevic Polje. And -- I can't remember. There was a whole lot we

3 talked about it, many topics.

4 Q. How did you decide on these topics?

5 A. For the most part on the basis of the instructions I got from

6 Mr. Ugljen, and Mr. Popovic was getting the instructions from his own

7 superiors.

8 Q. How many times did you and Mr. Popovic actually interview

9 Mr. Halilovic?

10 A. As far as I can remember, the investigation lasted about a month.

11 Q. And how many times -- how many statements did you take from him?

12 A. On a daily basis.

13 Q. Well, how many completed takes did you take from him?

14 A. Perhaps five or six, I think.

15 Q. At a moment ago you said on a daily basis, and I think I may have

16 interrupted you. What did you mean by "on a daily basis"? Were you

17 interviewing him on a daily basis?

18 A. Yes, we did interview him on a daily basis, if I remember

19 correctly. Perhaps there was one or two days that we had a break or

20 something, but I really can't remember. Certainly no more than two days,

21 but I think basically we interviewed him every day.

22 Q. What was your own personal experience in conducting interviews

23 with suspects as of 1993?

24 MR. MORRISSEY: I would object to that. It's irrelevant that the

25 witness be asked what he did with Mr. Halilovic, in my submission.

Page 58

1 JUDGE LIU: I believe that the Prosecution is laying the

2 foundation for that. We have to know that, whether this person has some

3 previous experience in interviewing people.

4 MR. MORRISSEY: Yes, Your Honour, I agree. That's true. I

5 withdraw that objection on that basis.

6 JUDGE LIU: Thank you. You may proceed.

7 MR. RE: Thank you.

8 Q. My question is directed to exactly what His Honour the

9 Presiding Trial Judge just said. What was your experience, if any, in

10 interviewing suspects?

11 A. Between 1979 and 1993, in the course of that 14-year period I

12 participated in quite a few investigations. Some were cases that I myself

13 led, and in other cases I was just a member of the team, as was the case

14 with Mr. Halilovic.

15 Q. What was the longest interview that you can remember that you

16 conducted before Mr. Halilovic?

17 A. It was when Mr. Alija Izetbegovic was arrested. And one of the

18 people from the group around Mr. Izetbegovic, I was appointed to interview

19 him, and I think the investigation lasted also about -- perhaps not quite

20 a month, but thereabouts.

21 Q. What were the standard techniques or procedures which you had used

22 in your interviews up until you interviewed Mr. Halilovic? How did you

23 conduct your interviews?

24 MR. MORRISSEY: Well, Your Honours, that should be clarified

25 between the two situations the witness has described, when he was the

Page 59

1 leader of the interview and when he was the -- only just a team member.

2 JUDGE LIU: Yes. I believe in this aspect we could be more

3 specific.

4 MR. RE: Both.

5 Q. When you were a member of the team and when you were leading the

6 team. When I said "you" I meant you plural, not singular. I meant the

7 team of which you were a part?

8 A. When I was on my own, when I was the leader or if it was my case,

9 as it were, I was the chief investigator there, and all the information

10 came to me, and I was the one who determined what needed to be done. But

11 if I was just a member of the team, I had my task which had been assigned

12 to me and I only carried out that particular task.

13 Q. I'm interested at the moment in the techniques or the procedures,

14 what you actually did in the interviews, how you conducted them.

15 A. Well, when I first started working for the state security, one of

16 the first things that I was told was that a nice-mannered approach was the

17 best approach, and that's what I tried to do throughout my career, to

18 approach people in this way no matter whether they were suspects or simply

19 citizens who were likely to provide us with some useful information. And

20 on the basis of my experience, I realised that that was indeed true,

21 because if you start banging the desk and shouting at someone, that's the

22 best way of ruining everything.

23 Q. Did you employ this same nice-mannered approach when you

24 interviewed Mr. Halilovic?

25 MR. MORRISSEY: Your Honours, I'm not going to object to that

Page 60

1 particular question because it comes to the crunch, but my friend has to

2 stop leading. That's a leading question. Because the Defence is not

3 suggesting anything of that sort with this witness I don't object here,

4 but I don't want any more leading questions to be asked like that,

5 Your Honour. That was --

6 JUDGE LIU: Yes. But on this particular question, I think Mr. Re

7 could continue.

8 MR. RE:

9 Q. Mr. Okic.

10 A. That's the method I used in all cases. That's what I've already

11 said. Never, ever in my entire career have I shouted at anyone or banged

12 the desk or threatened or anything like that, because I did really realise

13 that it was much better to be nice to the person you were interviewing

14 rather than play a tough guy.

15 Q. I'm just asking you about the techniques or methods you employed

16 with Mr. Halilovic. When you say "in all cases," are you including him or

17 were you excluding him from that?

18 A. I think that I was very decent in interviewing Mr. Halilovic, and

19 he can perhaps confirm it.

20 Q. When you were interviewing him, were you interviewing him as a

21 suspect, or person suspected of committing breaches of civilian or

22 military laws or a combination?

23 A. He was under suspicion with regard to this supposed armed or

24 military uprising. So probably it was about infringing military laws and

25 regulations. But from where I stood, it played no part in it at all. I

Page 61

1 was facing a man with whom I had to clarify certain issues or, rather,

2 details, and I had been asked to do that. And so it didn't matter to me

3 what sort of law he was supposed to have infringed. I had my task, and I

4 had to carry it out.

5 Q. To clarify your earlier evidence, your initial instructions were

6 in relation to a supposed armed uprising. Was it your understanding that

7 that was a breach of civilian or constitutional or military law?

8 A. I don't know. I had not been assigned with the task of looking

9 into the legal, fine points of this but simply to establish the facts and

10 on the basis of what Mr. Halilovic to say. Mr. Popovic and I were not

11 really interested in the legal ins and outs of that. We were only

12 interested in plain facts the way Mr. Halilovic saw them.

13 Q. Let's go to the interviews now. Where did you interview

14 Mr. Halilovic?

15 A. At the state security offices.

16 Q. Where are they?

17 A. At the Ministry of the Interior in Sarajevo, in that building.

18 And that was where those offices were at the time as well.

19 Q. And how far is that building from the Supreme Command Headquarters

20 in 1993?

21 A. If you mean where Mr. Halilovic was held?

22 Q. Where he was working.

23 MR. MORRISSEY: No. Don't correct the witness, please.

24 Your Honour, the witness has just made it quite plain what the position

25 is, and my learned friend can't now try to put the Dragon back into the

Page 62

1 box. He can ask another question, but he can't correct the witness when

2 he gives an unsuitable answer, in my submission.

3 JUDGE LIU: Yes, put that question to the witness, please.

4 MR. RE:

5 Q. You said where Mr. Halilovic was held. What do you mean by that

6 answer?

7 A. I don't understand, I'm afraid. Could you please clarify in terms

8 of what I meant?

9 Q. The question I asked you was: How --

10 A. Where Mr. Halilovic was being held. In detention, you mean?

11 Q. No, no, no. I wasn't asking you about detention. I will come to

12 that in a moment. What I'm asking you -- I will come to that issue at

13 some point definitely. I'm asking you at the moment about where his

14 offices were, where his -- where he was based.

15 A. I have no idea where his office was. I know that at the beginning

16 of the war, maybe in 1993, most of the General Staff had moved out of

17 Sarajevo. They only used some premises in Sarajevo. So I have no idea

18 where his office was, where he was based physically. I assume that it was

19 in a building that was perhaps 200 metres from our own offices as the crow

20 flies near the central prison in Sarajevo. The General Staff used the

21 building for their own needs, and my assumption is that Mr. Halilovic

22 worked there, but I can't say with certainty.

23 I think that's where he used to work before the whole thing

24 happened, and he was also being held in detention in that building.

25 Q. Just to clarify your last answer, are you -- are you saying in

Page 63

1 that last answer that you think he was being held in detention or you know

2 that he was being held in detention in that building?

3 A. It's just an assumption. I they the General Staff had offices

4 there. I'm not sure which ones exactly. And I know that whenever we

5 called for him to be brought over, it would only take very little time.

6 So my assumption was that he would be brought from that building. It only

7 took a couple of minutes. I think he was there near the central prison in

8 Sarajevo.

9 Q. I'm sorry, I'm slightly confused. What I'm trying to clarify is

10 whether you thought he was in detention or you thought he was being

11 brought from detention or you thought he was being brought from the

12 supreme -- or the General Staff offices.

13 MR. RE: I'm completely confused. I don't understand it and I'm

14 entitled to clarify that.

15 MR. MORRISSEY: Your Honours, it doesn't matter whether Mr. Re's

16 confused. The evidence is absolutely crystal clear. He is he not

17 entitled to clarify things for his own benefit. It's -- the questions are

18 for your benefit, the Tribunal. In my submission there is nothing to

19 clarify and the witness has been clear two or three times now. So --

20 JUDGE LIU: Well, we believe it's also important for the

21 Prosecution to be crystal clear.

22 Yes, Mr. Re.

23 MR. RE:

24 Q. You understand, I'm trying to work out for the purposes of the

25 evidence for the Trial Chamber whether you thought that he was being held

Page 64

1 in detention or you thought that he was coming from the General Staff

2 building.

3 A. I thought he was under some sort of house arrest. He was always

4 escorted by a military police officer. Truth to tell, Major Popovic

5 accompanied him sometimes, the person who worked with me. So I was

6 convinced that he was being held under some sort of house arrest inside

7 that building used by the General Staff. I don't know whether he actually

8 worked there before the whole thing began, but that was where he was being

9 held.

10 Q. What do you mean by "house arrest"? What meaning does that have

11 to you?

12 A. It means that someone is not free to move about as they please,

13 that they can only move about inside a certain building, that he was not

14 allowed to leave that building un-escorted. He was not free to move about

15 like everyone else, in one word. That was the impression that I had, that

16 Mr. Halilovic was under house arrest, if we can call it that.

17 Q. All right. Did you have any information as to where he was

18 spending his nights, where he was sleeping?

19 A. My assumption was in that building. That was my assumption.

20 Q. Let's just go back to where you held the interviews. You said it

21 was in the state security building. Whereabouts in the building?

22 A. No. It was in the Ministry of the Interior part of the building.

23 Q. I apologise. Yes. Whereabouts -- where did you interview him?

24 Was it in a room, in a cell, what?

25 A. One of the offices. One of the offices.

Page 65

1 Q. What sort of office? Just describe its -- general terms, its

2 dimensions.

3 A. Oh, roughly speaking 4 X 3 or 4 X 4 metres. Maybe 4 X 4, in my

4 estimate.

5 Q. What furniture was in the room?

6 A. Two tables this size approximately. Mr. Popovic and I sat at that

7 table. There was another lower table with two armchairs, and that was

8 where Mr. Halilovic was seated. There were two filing cabinets for files

9 and documents. There was a low table on which the telephones were kept.

10 There was a carpet. Nothing special.

11 Q. Was it someone's office?

12 A. I think there was a colleague there who had to move out.

13 Q. How far was Mr. Halilovic seated from you and Mr. Popovic? In

14 metres, if you could be approximate.

15 A. Like the distance between me and your colleague there.

16 Q. Two, two and a half metres.

17 A. Thereabouts.

18 Q. Was anyone else present in the room when you were interviewing

19 Mr. Halilovic?

20 A. No, not during the interview. When we took the statement.

21 Q. Did people ever come into the room?

22 A. Once or twice perhaps. As soon as they realised their mistake,

23 they would leave the room immediately.

24 Q. How did Mr. Halilovic get to your office? I'm sorry, get to the

25 room where the interviews were conducted.

Page 66

1 A. First of all, Himzo and I would have a meeting at which we agreed

2 the agenda for that day. Then we would call this other building that was

3 used by the General Staff, and then Mr. Halilovic would come along

4 normally escorted by one military police officer. And then the soldier on

5 duty at reception would inform us that -- that they were on their way, and

6 that Mr. Popovic or myself would bring them up to the room where we

7 interviewed him and then the military police would leave.

8 Q. What was Mr. Halilovic wearing?

9 A. Uniform. Uniform.

10 Q. Was he carrying anything?

11 A. A bag.

12 Q. What sort of bag?

13 A. An officer's bag for documents, for the sort of thing that every

14 officer needs.

15 Q. Did Mr. Halilovic have a weapon with him?

16 A. Yes. He had a gun. Himzo or I would always remove the gun, place

17 it on top of the filing cabinet behind us, and return it back to him once

18 the interview was over. When it was over, we would return the gun to him.

19 Q. What sort of gun was it?

20 A. If I remember correctly, it was a Crvena Zastava Red Flag, 99

21 millimetres [as interpreted].

22 Q. 99 millimetres. Was that nine or 99?

23 A. Red Flag.

24 Q. Nine or 99?

25 A. [In English] Nine millimetres. Model 99. Red Flag, model 99.

Page 67

1 Q. Do you remember whether it was loaded?

2 A. [Interpretation] It felt quite heavy. I didn't look myself, but

3 since it felt that heavy ...

4 Q. But since it felt that heavy what?

5 A. I assumed it was loaded.

6 Q. Was this one of these clip-loading pistols, where the clip goes

7 into the --

8 A. Yes. Yes, precisely. Yes. I can tell the different kinds of

9 pistols and revolvers.

10 Q. Have you ever in your 14 previous years of experience interviewed

11 a suspect who had a loaded weapon with him?

12 MR. MORRISSEY: He didn't say, with respect, that it was a loaded

13 weapon.

14 MR. RE: I didn't say that he did.

15 MR. MORRISSEY: Well, all right. If we want to play games about

16 it. Your Honour, look, the witness did not state that he looked to see if

17 it was loaded, and to put that question, therefore, in that form is, in my

18 submission, misleading.

19 MR. RE: All right. I'll withdraw the word loaded.

20 JUDGE LIU: Yes. To me there is no difference whether the weapon

21 is loaded or not because this witness is not sure whether it's loaded or

22 not.

23 MR. RE:

24 Q. Mr. Okic, had you ever in your 14 years leading up to then, state

25 security, interviewed a suspect who had a weapon on them, who was in

Page 68

1 detention?

2 A. No.

3 Q. When Mr. Halilovic came for the interviews, did he appear to be --

4 in what physical state did he appear to be to you?

5 A. Well, in view of the fact that there was a war on, we were all in

6 more or less the same kind of physical state. He looked all right to me,

7 though.

8 Q. What can you say about whether he was sick or well by his

9 appearance or anything he said to you?

10 A. Had he said that he was ill, we probably would have put a stop to

11 the interview. It is definitely not the established practice for us to

12 interview people who are ill. That would be pointless exercise. Whenever

13 he said he was tired, we would have a break.

14 Q. Did he appear to you at any stage to be under the influence of

15 drugs or alcohol in any of the interviews?

16 A. I wouldn't say that, no.

17 Q. Did he appear to you at any stage to be suffering from any form of

18 mental or physical illness?

19 A. That certainly wasn't my impression.

20 Q. What time did you start the interviews?

21 A. Depends. Sometimes at 10.00, sometimes at 11.00, sometimes at

22 12.00, that sort of thing.

23 Q. What time would you finish?

24 A. We didn't have a fixed time. Whenever we decided that that was it

25 for the day, we would stop. Sometimes it was at 6.00 or 7.00 in the

Page 69

1 evenings, sometimes at 11.00, 12.00. We didn't really keep track of the

2 time. We wanted to finish our job for the day, if possible.

3 Q. You said a moment ago, "Whenever he said he was tired we would

4 have a break." What sort of breaks did you have?

5 A. Short ones.

6 Q. How short?

7 A. Ten, 15 minutes, that sort of thing.

8 Q. What about meals?

9 A. Right at the outset, we agreed that we would have a break is

10 whenever we all decided that we should have lunch. We had an agreement

11 with Mr. Halilovic to do this on a regular basis.

12 Q. Was Mr. Halilovic given lunch?

13 A. Yes. We took lunch together.

14 Q. Who is "we"?

15 A. Mr. Popovic, myself, Mr. Halilovic.

16 Q. Where did you have lunch?

17 A. The Ministry of the Interior has a canteen, and that's where the

18 food came from.

19 Q. Are you saying you took him to the canteen or the food was brought

20 to you?

21 A. No. We would make a call and someone would then bring the food.

22 Q. What sort of food was it?

23 A. I maybe went myself to fetch it once or twice, but usually it

24 would be brought up to us.

25 Q. What sort of food was it?

Page 70

1 A. For those occasions, given the general circumstances, it was

2 nothing much really, but we all shared the same food, potatoes, pasta.

3 THE INTERPRETER: Correction, not pasta, beans. Interpreter's

4 correction.

5 THE WITNESS: [Interpretation] I can't say it was the same level as

6 the sort of food you're given in a hotel, but we were happy with what we

7 had.

8 MR. RE:

9 Q. How long were your lunch breaks generally?

10 A. Depends. About half an hour, 45 minutes, thereabouts.

11 Q. What about dinner? Did you give him dinner as well?

12 A. We usually had a late lunch, so normally there was no dinner.

13 Whenever we started at 10.00, 11.00, 12.00, we would normally have lunch

14 at 3.00, 4.00, or 5.00. So Mr. Halilovic never asked for anything extra,

15 and we didn't see it fit to have two meals. Had he so requested, we would

16 have seen to it.

17 Q. Was Mr. Halilovic permitted to go to the toilet when he needed to?

18 A. Yes, of course. It goes without saying.

19 Q. How did he go to the toilet?

20 A. It was right there near the office. We would open the door and I

21 would stand at the door or Mr. Popovic would stand at the door. As soon

22 as he was done, we would all return to the room.

23 Q. What about a telephone? Was he able to use a telephone?

24 A. I think once or twice he actually asked to use the phone. I can't

25 remember specifically. He placed a call to someone, whether it was his

Page 71

1 son or someone else, but I think he made one or two calls from our office.

2 He may have called the General Staff, too.

3 Q. How do you know who he called?

4 A. He would usually just say, "I need to make a phone call," and then

5 we would just let him use the phone. But it happened once or twice

6 maximum.

7 Q. Did he use the phone in the office in which you were conducting

8 the interviews?

9 A. Yes.

10 Q. Were you listening to the phone -- the phone conversation when he

11 made the telephone calls?

12 A. Yes.

13 Q. How did you and Mr. Popovic ask your questions?

14 A. First we would announce our subject for the day, and then we would

15 try to ask specific questions based on the instructions we'd received from

16 our bosses.

17 Q. When -- you say "we." How did you go about your questioning?

18 A. As a matter of principle, Mr. Popovic and I agreed that he would

19 ask questions of a more military nature since I was no expert in the field

20 and he knew more about it than I did. We also agreed that I would ask

21 civilian questions. But there was no strict division, really, and with

22 him the distinction was lost and we would just take turns asking questions

23 trying to get to what was most essential to us.

24 Q. How did you record what he said to you?

25 A. We wrote to down. I had a huge notepad. We took notes. We made

Page 72

1 notes of what he told us.

2 Q. How did those notes -- what did you do with the notes?

3 A. These notes were destroyed long ago.

4 Q. The notes, what did you use the notes for?

5 A. There were two purposes. The first was to inform myself,

6 Mr. Ugljen. Secondly, when we drew up statements, the statements were

7 drawn up precisely based on the notes that we had taken.

8 Q. What did you write on the notes? Was it the questions and the

9 answers, or the answers, or the questions, or what?

10 A. No, not like this. Not like our transcript here. It was just the

11 gist of what Mr. Halilovic was telling us. We only wanted to know about

12 the crux of the matter. We weren't so much into formal aspects of our

13 interviews.

14 Q. And how did those notes get into statement form?

15 A. Once we rounded off a particular topic, we called the typist in.

16 The typist would come in. We would start dictating the statement. First

17 one sentence, then we asked Mr. Halilovic whether he agrees for this

18 sentence to be included, and he would say yes or no, then perhaps make

19 corrections, and then we included whatever he said. And the next

20 sentence, and the next sentence, and so on and so forth.

21 The taking of these statements actually took much longer than the

22 interviews themselves.

23 If I remember correctly, it was precisely in those days that we

24 those days that we spent a lot of time in the offices that we actually

25 wrote the statements down.

Page 73

1 Q. Was Mr. Halilovic with you for that entire time that you were

2 composing the statements? I'm sorry, what I'm asking you is, did you

3 compose the statements entirely in his presence?

4 A. Of course.

5 Q. How often did you make corrections as you were reading the typed

6 line to him?

7 A. I can't say it happened very often, but he would make corrections

8 every now and then. Sometimes he wouldn't like the wording that we used

9 and he would say, "That's not how I said it. I said it like this." Then

10 we would fix it and go on.

11 Q. I think you said the -- you said, "Once we rounded off a

12 particular topic, we called the typist in." Did the statements have more

13 than one topic in them?

14 A. Some statements were only about one topic, and some statements

15 actually comprised more different topics.

16 Q. And at the completion of that topic, what did you do? That is, at

17 the completion of typing up that particular topic, what did you do in the

18 interview process?

19 A. Once the statement was taken and typed up, Mr. Halilovic would go

20 through it. If he was happy, he would initial each of the pages and sign

21 the last page.

22 Q. What I'm trying to get at at the moment is, did you ever stop the

23 statement before the thing was finished because a topic was finished and

24 then move on to questions and --

25 A. Yes, of course. Yes. Yes, of course. Well, we tried to round

Page 74

1 things off nicely and include all the essential issues. It was only then

2 that we would move on to a different topic.

3 Q. What -- what was the process at the conclusion of a statement?

4 What happened?

5 A. Mr. Sefer would initial each page and sign the last page, and

6 would I sign, and Mr. Popovic, too, as well as our typist. We made five

7 copies of each statement, so he had to initial and sign every single page

8 for all the five copies, and then Mr. Popovic and I would sign the

9 statements, the typist would also initial the statements, and that was it.

10 Q. Did Mr. Halilovic ever make any corrections to the statements

11 before -- that is, at the end of the process before he signed?

12 A. Yes. Yes. Sometimes there were typos. Sometimes there was no

13 electricity. I think once or twice we had to do it by candlelight. Not

14 typing, just talking. But there were typing errors that were made. Maybe

15 the typist misheard something.

16 Mr. Halilovic, at any rate, did make a number of corrections,

17 whatever he believed was mistyped.

18 Q. Did you or Mr. Popovic or anyone else threaten Mr. Halilovic?

19 A. No. No. I had been given very specific instructions by

20 Mr. Ugljen to be as polite as possible, as fair as possible, to

21 Mr. Halilovic.

22 Q. Did you or Mr. Popovic or anyone else offer him any inducements?

23 MR. MORRISSEY: Just a moment. The witness can -- sorry, just

24 excuse me. Pardon me, Mr. Okic, I'm sorry to interrupt.

25 It has to be made clear whether the witness is being asked

Page 75

1 whether he offered any inducements, which he can answer, or whether

2 Mr. Popovic did so in his presence, which he can answer, or whether

3 anybody else did so in the presence of Mr. Okic. He can't answer the

4 question that's currently being phrased about anybody else, frankly,

5 unless he can prove he was there and observed that to happen.

6 JUDGE LIU: Well, he may be -- he may be told. He may have heard.

7 MR. MORRISSEY: Your Honour could be right about that, but that's

8 got to be clarified.

9 JUDGE LIU: Yes. Yes, of course. Yes. If Mr. Re would be very

10 glad to do that.

11 MR. RE: Of course.

12 Q. Any inducements, first in your presence; and secondly, did you

13 hear about him being offered any inducements?

14 A. In my presence, nobody offered any inducements. I didn't, and

15 Mr. Popovic didn't, and I had not heard of anyone else doing so. Apart

16 from anything else, either Mr. Popovic or myself, well, we didn't have any

17 powers to do so. We could not offer him any inducement to make a

18 statement we would have liked or something. My task was simply to write

19 down and clarify what Mr. Halilovic had to say and that was the end of it.

20 Q. What about promises? Did anyone offer him any promises in your

21 presence or did you hear about him being offered any promises?

22 A. Not in my presence. Nobody did that in my presence, and I had not

23 heard of anyone making any promises to him.

24 Q. Was any psychological pressure brought to bear on him in your --

25 in the interview?

Page 76

1 A. Well, you know, had I been under this kind of investigation for a

2 month, the way Mr. Halilovic was, I would have probably taken it as a

3 psychological pressure. And I can relate to him possibly feeling that he

4 was being put under pressure. But I can also say that I did all I could,

5 everything within my mind to be fair and kind in the course of that

6 investigation. So obviously I don't think we were putting him under

7 pressure, not intentionally. But if you spend 12 hours or ten hours being

8 interviewed, it may well appear as if you're being put under psychological

9 pressure. I can agree to that.

10 Q. Do you know whether your interviews, the interviews you conducted

11 with Mr. Halilovic, were video or audiotaped?

12 A. I don't know, but I suppose. I mean, I can only suppose they

13 might have been, but I can't give you any guarantees there because I've

14 never actually seen any transcripts of any sort, anything that would have

15 been proof of such taping.

16 Q. Was there a means where taping audio or videoing could have

17 occurred in that room without you having been aware of it?

18 A. Of course, yes.

19 Q. Did Mr. Halilovic ever ask for a lawyer to be present?

20 A. As far as I can remember, no.

21 Q. Was he entitled under Bosnian law at the time to have the presence

22 of a lawyer if he requested one?

23 A. Of course. Of course he could have asked for a lawyer. And had

24 he asked, I would have gone to see my boss, and I would have said, "Okay,

25 this is the way things are. Mr. Halilovic does not want to talk to us

Page 77

1 without a lawyer." But as far as I can remember, he never asked. And

2 also, we tried to be as fair as possible, and he tried to be nice as well.

3 And if I may say so, all those interviews, notwithstanding the fact that

4 they were rather exhausting, were characterised by decent behaviour on

5 both sides.

6 Q. Who were they exhausting to?

7 A. For all of us.

8 Q. What can you say in general terms about Mr. Halilovic's conduct

9 and demeanour during the interviews you conducted with him?

10 A. He was very fair and he cooperated fully, so I have no

11 observations to make in that sense.

12 Q. Did he ever make any complaints to you about his treatment by you

13 and your colleagues in the interviews?

14 A. What colleagues?

15 Q. Those -- those taking parts in the -- perhaps I imprecisely used

16 the word "colleagues." You and Mr. Popovic and anyone else who came into

17 the room and assisted in the tying of the statements. Did he complain

18 about Mr. Popovic to you?

19 A. Well, the typists were in no position to insult him in any way.

20 They just did their job. And he did not complain of the way we treated

21 him. I got the impression that he was embittered because of the general

22 way in which he was treated, the position he was in and not our particular

23 attitude, our personal attitude towards him.

24 Q. You said you got the impression. Did he actually say anything to

25 you or make any complaints to you about -- if I could just finish the

Page 78

1 question -- did he actually make any complaints to you about his

2 treatment?

3 A. Perhaps --

4 MR. MORRISSEY: I'm sorry. If we could stop for a moment, please.

5 As I understood what Your Honour said earlier on we're not going to go at

6 this stage into the substance of the interviews. Now, this is asking what

7 Mr. Halilovic said at that time, and in my submission it's traversing into

8 what was said in the interviews.

9 MR. RE: Well, it's not. It's not.

10 JUDGE LIU: No. No. Well, I think on this situation we're still

11 on the procedural matters. That is, did he actually make any complaint to

12 you about his treatment, means the whole process of the interview rather

13 than the contents of that statement.

14 MR. MORRISSEY: Yes, I'm sorry. If it's -- if it concerns the

15 process of the interview, I've got no objection.

16 JUDGE LIU: Yes. You may proceed, Mr. Re.

17 MR. RE:

18 Q. To be quite clear I'm only talking about the process of the

19 interview and his treatment at that time.

20 A. Well, he didn't complain of us, of the way we treated him, but he

21 might have dropped a phrase or two on the basis of which I gathered that

22 he was upset about the position he found himself in and not because of our

23 lack of fairness or anything like that, because - let me just reiterate

24 this once again - I think we were totally fair.

25 Q. Did you ever caution him about a right to silence, he didn't have

Page 79

1 to answer any questions, and anything that he said could be used against

2 him in court proceedings?

3 A. No.

4 Q. Was a caution a standard part of Bosnian investigatory procedure

5 at the time? I mean the issuing of a caution.

6 A. As far as I can remember, it was not current practice in the

7 previous system.

8 Q. I just want you to look at a document. It's dated the 8th of

9 November, 1993. It's Prosecution 65 ter Exhibit number 134, ERN 00997363.

10 Could that please be shown to the witness?

11 MR. MORRISSEY: Your Honours, I have to inquire what the basis for

12 doing this is at this stage.

13 MR. RE: Identification of the document, that's all.

14 JUDGE LIU: If so, I think there is no problem.

15 MR. RE: I'm not attempting to tender it.

16 MR. MORRISSEY: I know. I think there will be a problem but, Your

17 Honour, I'll wait and see what's said.

18 THE PROSECUTOR: I'm just asking the witness to identify whether

19 this is an interview that he took, the statement that he took from

20 Mr. Halilovic. It's the basis of why we're here and it doesn't have his

21 signature on it. That's all.

22 JUDGE LIU: Yes. On this limited area you could do that.

23 THE REGISTRAR: That will be MFI 297.

24 THE WITNESS: [Interpretation] On the last page there is a

25 signature.

Page 80

1 MR. RE:

2 Q. Just to be clear, we're looking at a statement dated the 8th of

3 November, 1993, which is headed "Record. Additional statement, official

4 secret, strictly confidential," in Bosnian, of some 12 pages.

5 A. Could I just see the last page? I mean, I did not do this on my

6 own. We took several statements from Mr. Halilovic, and some of the

7 statements were taken before my time. So I want to see the signature. If

8 it's my signature, obviously I must have taken it.

9 Q. Yes. Just look at the first page and identify whether that's the

10 document we're talking about and then if the registrar could please turn

11 it to the last page, which is the 12th page.

12 A. Yes.

13 Q. Whose -- there's a signature offer the left over the name Sefer

14 Halilovic. Whose signature is that?

15 A. I suppose Mr. Halilovic's.

16 Q. There is one in the middle over the name -- over --

17 A. It's just initialed by that person. It's not a signature as such.

18 It's our secretary, the typist.

19 Q. And to the right it says "additional statement taken by," and

20 there are two signatures. Is one of those yours?

21 A. Yes. The first is mine, and the second, I believe, is the

22 signature of Mr. Popovic.

23 MR. RE: Now, it would be quicker if I could show him the paper

24 copy and ask him whether Mr. Halilovic's signature is on the bottom of

25 each page otherwise we will have to go through each page and there would

Page 81

1 probably take a minute for each one.

2 JUDGE LIU: Any objections.

3 MR. MORRISSEY: No. I note that what the witness says, he said he

4 supposes it was Mr. Halilovic's signature. So I don't know what he's

5 going to be asked as to what he sees at the bottom of each page, but I

6 don't mind him being shown the signatures, shown the document in any form

7 the Prosecutor wants to show it to him for the purposes of this process.

8 JUDGE LIU: Yes. Yes, of course.

9 MR. RE: Thank you.

10 Q. I'm just going to show you a hard copy of this document.

11 A. That's a photocopy of one of the statements that I took together

12 with Mr. Popovic. In the course of the investigation.

13 Q. The statement from Mr. Halilovic?

14 A. Yes.

15 Q. [Previous translation continues] ... signed?

16 MR. MORRISSEY: Just a minute. No, I don't object to him

17 answering the question.

18 A. Yes. It's signed, yes.

19 Q. Is that Mr. Halilovic's signature on each page?

20 A. Yes.

21 Q. You've given some evidence about how you took all the statements.

22 Was this particular statement taken in any different manner to the

23 evidence you've given as to the taking of statements from Mr. Halilovic?

24 A. I don't think so.

25 Q. Okay. That has been marked for identification. There's only one

Page 82

1 other matter, and that is the --

2 MR. MORRISSEY: Sorry, Your Honours. I'm not agreeing to it being

3 marked for identification even at this stage. It's at issue whether it's

4 going to be admitted for use or to be admitted into the evidence at this

5 point. It's a matter for the Court how you proceed with that matter now

6 and its current status.

7 JUDGE LIU: Well, marking for identification means nothing. It's

8 just for the benefit of the court deputy and for the Court to find this

9 document in the future.


11 JUDGE LIU: It does not have any legal meaning to have a number on

12 it.

13 MR. MORRISSEY: On that basis I have no objection, Your Honour.

14 JUDGE LIU: You may proceed.

15 MR. RE: Thank you. There's just one final matter. Two days ago,

16 Your Honour, the Trial Chamber ruled against the Prosecution on the issue

17 of the second statement on the 12th of November. The Prosecution is

18 considering asking for version of appeal for that particular ruling and we

19 may well appeal if the two -- if the other one is excluded as well. For

20 the purposes of identifying and pre-severing the record, I merely want to

21 show this statement, the second one, and have the witness identify this as

22 the document we referred to the other day and take it no further. If I

23 could do that for the purposes of the record to preserve it for appeal and

24 make no use of it in the proceedings at all. Just so that, if we appeal

25 it at any point, it is clear on the record that the document -- the

Page 83

1 witness has identified this particular document. That's all.

2 JUDGE LIU: Mr. Morrissey.

3 MR. MORRISSEY: We object to that being done. Your Honour,

4 there's no basis for it being done. It's been excluded from the record,

5 from the trial here. It's got nothing to do with this case. It's not

6 proper to put in for some other collateral proceedings. If -- so long

7 as -- so long as that document's capable of being proved properly for any

8 appeal or any further proceedings there's no need to engage in the current

9 device that's being proposed and I just submit it would be completely

10 irregular for it to be done here. It's got nothing to do with this case

11 in the circumstances. So the Prosecutor's at liberty to pursue whatever

12 remedies they want in terms of certification and ... So there's no basis

13 for it getting a number here in this trial. Your Honours have ruled on it

14 before. It's -- it's over with.

15 MR. MORRISSEY: We're not trying to go behind Your Honour's

16 ruling. It's just for the purpose of the record so that the document is

17 actually identified. I mean we could have tendered it two days ago for

18 the purposes of the hearing or the inquiry into the admissibility. It's

19 just it's not identified on the record at the moment and things get lost.

20 If it ever comes to an appeal in the years to come, things get lost very

21 easily. We only want to mark it for identification. It has no -- no role

22 in the proceedings. The Trial Chamber isn't entitled to use it; it's just

23 that it's there. And we preserve for the purposes of the appeal we

24 preserve the Trial Record as this is the document we asked the Trial

25 Chamber to admit but you ruled against us. That's as far as we take it.

Page 84

1 JUDGE LIU: From the point of view of this Bench, we believe that

2 the two documents have different status. The first one we barred from

3 using and, at a meeting, that document at all. It was not used during the

4 whole proceedings. For this document we call the witness, and this may

5 be, there may be a possibility for the admission. I'm not sure at this

6 stage. I couldn't -- I have to make the ruling yet. So that's two

7 different, you know, status of those two documents.

8 We believe that without a number that document does not prevent

9 the Prosecution to ask for certification. As we did in our rulings, we

10 just refer the two documents as November 8th document and November 12th

11 document, which means the statement. So at this stage, this Bench is very

12 reluctant to give a number to that document.

13 MR. RE: May it please Your Honours. I'll finish on this note:

14 There -- I don't want to make use of the other documents, the other

15 interviews, but the witness has said that he participated in a number of

16 signed interviews. I just want him -- I just want the dates of those I

17 views from the witness. The -- it would take a long time if I show each

18 of them to the witness just to say were -- did you take signed statements

19 on these particular days. That's all. I just want the dates on the

20 record, that is all. I'm not attempting to use those, but a lot of

21 evidence has been given as to the ongoing process of taking statements and

22 when they were taken. So I just want the dates from the witness, and if I

23 could just put the dates to him it would be much quicker.

24 JUDGE LIU: I think that is quite leading.

25 MR. RE: It would be.

Page 85

1 JUDGE LIU: First of all, you may ask this witness to tell you

2 whether he -- on which date he take a statement or not.

3 MR. RE:

4 Q. Do you remember the dates on which you took statements from

5 Mr. Halilovic or which they were signed?

6 A. I can't remember. This was 12 years ago. I can't remember. I

7 could perhaps take a look at the statements themselves.

8 MR. RE: If I could be permitted to show the witness. They're not

9 loaded into the system, the actual statements, and say, "Is this the

10 statement which you took," that's all.

11 JUDGE LIU: Well, what's the purpose for that?

12 MR. RE: Well, it goes to the admissibility of this particular

13 interview, because the challenge is being made on the basis that it was a

14 long, interrogatory process in which there were -- he was subjected,

15 according to the Defence, to come coercion and there were a number of --

16 the witness has given evidence of having taken a number of statements.

17 In our submission it is relevant to the Trial Chamber's inquiry to know

18 how many signed statements there actually were. The witness clearly can't

19 tell us without going back and looking at the -- the document. That goes

20 right back to Mr. Halilovic's state of mind, the voluntariness, whether he

21 signed the statements, how many statements there were. All I want to do

22 is to -- to say, well are these the -- how many statements did you take?

23 How many were signed?

24 JUDGE LIU: Mr. Morrissey.

25 MR. MORRISSEY: Well, I object to it. Your Honours, there is a 65

Page 86

1 ter list that none of these are on it. Frankly I'm not prepared to

2 cross-examining about them. They've got nothing to do with the case.

3 It's a last -- in my submission if the Prosecutor sought to use this in

4 some probative way, as he now claims he is, as evidence Mr. Halilovic was

5 behaving in a voluntary way, then he should have put them on the list and

6 given someone some notice before this last five minutes. In my submission

7 it's -- the witness has given answers about how many days there were of

8 interviews and -- well, I won't make a speech I oppose that line of

9 questioning and I oppose those things being put to the witness.

10 JUDGE LIU: I'm afraid Mr. Re you cannot do that kind of practice

11 at this stage.

12 MR. RE:

13 Q. Could I just summarise -- if I could just summarise. Yourself

14 that you took a number of signed statements but it's been 12 years and you

15 can't remember the dates on which those statements were taken. Over what

16 period were the statements taken and signed? Days, weeks, months?

17 A. The entire investigation, the part that I was involved in lasted

18 roughly a month, so within that period of time I participated in the

19 taking of statements.

20 MR. RE: That's the evidence in chief.

21 JUDGE LIU: Thank you. My suggestion is that we have a short

22 break.

23 MR. MORRISSEY: Your Honours, that's correct. There's certainly a

24 matter of law I want to raise before I commence to ask questions of the

25 witness and one of the issues is, do I need to ask any questions. So I'd

Page 87

1 like to raise that matter with the Chamber before cross-examination

2 commences. I can do that at the end of the break and before that period

3 starts however, Your Honour.

4 JUDGE LIU: And without the presence of the witness.

5 MR. MORRISSEY: Yes, I think so, Your Honour.

6 JUDGE LIU: Yes. I think we will take a 15-minute break, and we

7 will resume at ten minutes past one, I believe.

8 --- Recess taken at 12.53 p.m.

9 --- On resuming at 1.11 p.m.

10 JUDGE LIU: Yes, Mr. Morrissey, please address the Bench.

11 MR. MORRISSEY: Yes, Your Honours, I will. Your Honours, I submit

12 that it's appropriate at this stage to decline to admit that -- that

13 document. It's fair to say the learned Prosecutor did a noble job and

14 went in detail through what the witness could say about the taking of that

15 statement. I objected on a number of occasions, but frankly the

16 Prosecutor was really doing his job and trying to be detailed about what

17 the witness had to say. But what you now know is the Prosecution are

18 finished with this witness and they haven't sought to prove that he was

19 offered a lawyer. It's obvious that he wasn't. He wasn't given the

20 warning that the -- that the evidence might be used against him. There's

21 no suggestion he was told what charges, if any, or that even that the

22 charges were discussed with him by this particular witness. The evidence

23 led at the moment is that there were lengthy, exhausting days where not

24 just the -- not just Mr. Halilovic but the witnesses themselves were

25 exhausted.

Page 88

1 I think it's fair to say this, Your Honour, I don't want to

2 cross-examine -- I don't want to go into fields that aren't needed and I

3 would submit that, quite frankly, the Prosecutor did all that he could and

4 asked what he could, but the onus is on the Prosecutor here in relation to

5 this document, and I can indicate that if Your Honours were minded to

6 accede to my submission now and rule this document out, I think I've got

7 ten minutes of questions for the witness relating to residual matters, the

8 9th Brigade. In fact, I think it will be more likely to be five minutes

9 of questions. But otherwise I have to go into the full matter frankly.

10 If Your Honours -- if Your Honour doesn't rule it out at this stage.

11 Now, of course it's -- it's -- it's up to Your Honours whether

12 you -- whether you believe the Prosecutors have reached -- have led

13 evidence that's capable of getting across that threshold, but I think it's

14 fair to say now that despite my objections, I'm full of admiration for the

15 way of the Prosecutor proceeded there and did his best. But really, they

16 haven't sought -- they haven't really tried to jump over the hurdle in the

17 proper way because they have to leave evidence that he was given his

18 rights and that everything was done that should have been done. The onus

19 is upon him. As Your Honours have pointed out, the Celebici judgement

20 makes it clear that whether or not section 42 or Article 42 applied in

21 Bosnian law - that's the standard - it's very hard to admit --

22 THE INTERPRETER: Can counsel please slow down for the benefit of

23 the interpreters.

24 MR. MORRISSEY: I've received the usual warning, Your Honours.

25 Now, I can address you further upon it with you I think

Page 89

1 Your Honour is aware of what -- effectively, what I'm asking at this

2 stage. I would ask Your Honour now to indicate if you were to prepared to

3 do so, that the document should not be admitted into evidence, to spare a

4 lengthy cross-examination. A cross-examination which, quite frankly,

5 would raise issues the Prosecution haven't actually themselves tried to

6 prove. No doubt sensibly, because they know what the witness is going to

7 say. So that's what I raise at this stage.

8 JUDGE LIU: Yes. Any response, Mr. Re.

9 MR. RE: Well, it's entirely a matter for the Trial Chamber

10 whether you wish to hear Mr. Morrissey cross-examine the witness. I can't

11 say anything about his application. If the Trial Chamber wishes me to

12 address, I can certainly address based upon the Prosecution evidence as to

13 why we would submit that the statement is capable of admission into

14 evidence, but as to whether or not Mr. Morrissey cross-examines or not is

15 a matter between Mr. Morrissey and the Trial Chamber.

16 JUDGE LIU: You may address us on the second issue.

17 MR. RE: May it please Your Honours. The relevant rule in our

18 submission has to be Rule 95. This, the statement, which is -- I'm sorry.


20 MR. RE: The statement MFI 297 must fall within of itself of its

21 nature of what is in it must fall within the basic primary rule of

22 admission which is 89(C). The Chamber may admit relevant evidence which

23 it deems to have probative value. The subject matter of the relevant

24 statement must be signed by the accused, must be relevant and is probative

25 to these proceedings.

Page 90

1 Now, I doubt whether the Defence would dispute the relevance and

2 probative value of the statements if accepted into evidence, and to save

3 time I won't go -- unless Your Honours require me to I won't address you

4 as to why we say it's relevant or probative.

5 JUDGE LIU: Well, you may continue.

6 MR. RE: I can go into detail as to why we say it's relative and

7 probative, but if Your Honours are satisfied it would get to that, test

8 I'll just get to that exclusion, or else I can --

9 JUDGE LIU: Well, I believe you should not address the issue of

10 the probative value and the relevance of the document. We quite

11 understand this document is relevant, and it also has some probative

12 value, but here we haven't come to that stage yet. So let's limit our

13 scope to the first matter.

14 MR. RE: I will. So the two -- the two rules of exclusion are of

15 course 89(D) which empowers the Trial Chamber to exclude relevant

16 evidence, that's assuming it's within 89(C), but only if it's probative

17 value is substantially - that's the word - substantially outweighed by the

18 need to ensure a fair trial. In the Prosecution's submission, this --

19 this -- that isn't the appropriate section under which it would be

20 excluded, if it were. It's a relevant and probative document, and it is

21 highly relevant and highly probative in the Prosecution's submission, but

22 its admission is not -- would not be substantially outweighed by the --

23 sorry, I put it the other way around. It's in the negative.

24 The words are substantially outweighed by the need to ensure a

25 fair trial. The Prosecution's submission is the accused is of course

Page 91

1 getting a fair trial and the admission of this document into evidence

2 would not affect his right to a fair trial either by the means of the

3 taking of the statement or the fact that it would be admitted into

4 evidence or the use the Trial Chamber could make of it. The accused has

5 all options available to him. He can call evidence to rebut it, to attack

6 the document. He can -- he has legal advisors. He has the means at his

7 disposal in the Trial Chamber to ensure that there is a fair trial if this

8 document is admitted into evidence, and in our respectful submission, that

9 would not be the correct section to look at.

10 The correct section and it's the primary basis of the application

11 for exclusion is Rule 95, which of course says that no evidence shall

12 be -- it's headed exclusion of certain evidence. "No evidence" --

13 withdraw that. It's in two parts. There are two parts to the test. "No

14 evidence shall be admissible if obtained by methods which cast

15 substantial" - I underline substantial - "doubt on its reliability" -

16 underline reliability - "or if its admission is antithetical to and" -

17 it's subjunctive - "would seriously damage the integrity of the

18 proceedings." So there's a two-part test that has to be satisfied before

19 it's excluded.

20 The first one is doubt -- substantial doubt on its reliability.

21 In the Prosecution's submission, substantial doubt has not been cast on

22 the reliability of the contents of the statement. If Your Honours look at

23 the statement, it corroborates evidence which other witnesses have given

24 and documents which are in the case as to what happened at Grabovica.

25 There is nothing on the face of the document itself which the -- or the

Page 92

1 things that the accused has said in this signed statement which casts

2 doubt on the reliability, or substantial doubt on the reliability of what

3 is contained therein. Now, that's the hub of the matter. Is it a

4 reliable document? Is what the accused said in 1993 reliable? Is what is

5 there reliable? Is it something which the Trial Chamber could rely upon

6 in convicting or acquitting the accused?

7 If you look at the document, on its face what is there is in the

8 Prosecution's submission reliable and accurate. You've heard from

9 Mr. Okic as to the circumstances of the taking of the statement. Now, no

10 challenge has been made that the accused did not assignment statement. No

11 challenge has been made that what is there is not what the accused said,

12 nor what the accused said in that statement is not reliable. No challenge

13 has been made here through evidence or questions of the witness to suggest

14 that what is in there is not reliable. There is nothing, in my respectful

15 submission, upon which the Trial Chamber could make an assessment that it

16 is not reliable, the contents of the document were not reliable, no matter

17 how long, how many sessions there were, or whether he was in detention or

18 not. It's the accuracy and reliability of the document which must concern

19 the Trial Chamber. And there must be a substantial doubt as to its

20 reliability. The word is substantial. There must and real -- a

21 substantial doubt as to whether what is in it is reliable.

22 And you go back to the methods by which it was obtained. Now,

23 whether or not Mr. Halilovic had a lawyer present or waived his right to

24 have a lawyer present or was cautioned, what you're looking at is, is what

25 he said accurate and reliable?

Page 93

1 Moving to the second part of the test, which is if it's -- or "if

2 its admission is antithetical to and would seriously damage the integrity

3 of the proceedings." So it has to be both. There has to be substantial

4 doubt on the reliability based on the way it was obtained and, having

5 found that, it would seriously damage the integrity of the proceedings.

6 Now, in my respect full submission, admission into evidence and

7 the use it have by the Trial Chamber cannot seriously damage the integrity

8 of the proceedings. Mr. Halilovic is entitled to all the safeguards in

9 Article 21 of his right to a fair trial and to all the procedural

10 safeguards in the Rules, and the Trial Chamber, we have no doubt, would be

11 extremely careful in assessing the document and the weight that you can

12 give it. The Prosecution submits that it's -- it's a reliable document.

13 It's a contemporaneous document, and it certainly fits within the best

14 evidence rule. It is a statement Mr. Halilovic made within weeks, six

15 weeks or so or - sorry, two months, I'm sorry - of the events which are

16 the subject of the indictment. It's a much better record than you're

17 going to get from his interview with the Prosecution in 2001 or from his

18 book which was published some years later. This is going to be the best

19 record of what the accused himself said about the events in Grabovica, the

20 best contemporaneous record. It would be better in my submission than the

21 accused giving evidence himself because the accused giving evidence

22 himself now will be doing so 13 years later. This is a contemporaneous

23 account which would have to be more reliable because of its

24 contemporaneousness.

25 There are several features I point the Trial Chamber to in

Page 94

1 weighing up whether or not to admit it into evidence in relation to the

2 circumstances of the taking of the interview. The first is the prevailing

3 circumstances. In determining the methods and whether they cast

4 substantial doubt on the reliability of a document, you have to look at

5 the surrounding circumstances, that it was a war, that Sarajevo was under

6 siege at the time, and that Mr. Halilovic was suspected of involvement in

7 an armed mutiny. There was -- Mr. Okic said there were times when there

8 was no electricity. Mr. Okic himself has given evidence of the behaviour

9 of the brigades who were suspected of -- who Mr. Halilovic was suspected

10 of being involved with according to his -- the chief of security. In

11 fact, kidnapping him and taking him to the -- to the -- to the front

12 lines.

13 So you've got to look at the entirety of the circumstances. And

14 of course they're not perfect and we don't pretend for one moment that

15 they were perfect, and we don't -- the Prosecution doesn't submit that

16 these -- that if that interview was taken by the Prosecutor it would be

17 admissible. It wouldn't be, because that would be under Rule 42, which

18 sets out specific safeguards in relation to charges before this particular

19 Tribunal.

20 Now, what he was interviewed about had nothing to do with what

21 was -- nothing to do with this Tribunal, which -- at that time. It

22 started off with a -- as Mr. Okic said, a general history of Mr. Halilovic

23 in the army and various specific topics, one of which just happens to be,

24 in the Prosecution's submission, Grabovica. The primary purpose was

25 investigating Mr. Halilovic for his supposed participation, I think the

Page 95

1 word was "in a supposed armed uprising." So he's being investigated for a

2 coup d'etat or a mutiny, not -- not -- not war crimes. So the

3 investigation was for a different purpose all -- altogether.

4 If you look at -- in those circumstances, it is not surprising

5 that Mr. Halilovic was brought in every day and interviewed at some length

6 about a number of different topics, because he was under suspicion of

7 committing serious offences against the state at the time. But the

8 evidence of the way he was treated in relation to the interviews, in

9 particular the one in which we -- which we rely, 297, is that he was

10 brought in by one military police officer, left at reception, brought up

11 to a room and interviewed but given -- but afforded the normal rights - he

12 didn't ask for a lawyer - the normal rights that you would -- one would

13 imagine a person in those circumstances would have. He was given the

14 opportunity to use a telephone and did do so. He was in his uniform. He

15 was allowed the dignity of keeping his rank. He was given lunch, given

16 breaks, and no suggestion or -- or no suggestion has been made that

17 Mr. Okic or Mr. Popovic did anything to coerce him. The highest it gets

18 is there may have been some psychological pressure because the interviews

19 went for a long time, but Mr. Okic explains that, that anyone in those

20 circumstances would be stressed and, of course, that's -- that's quite

21 sure. We don't resile from -- we don't -- not resile. We can't quarrel

22 with that.

23 But one very significant matter, of course, is the weapon. Now,

24 why is Mr. Halilovic carrying a weapon on every occasion? Why has he got

25 a weapon with him which, based on the weight of it, it have may have been

Page 96

1 loaded. Mr. Okic would be in a position to know because he described the

2 weapon in some detail. That's a very significant feature as to, in our

3 submission, as to the way the Trial Chamber should treat the matter. What

4 is a man, a general, someone with the rank of a general doing coming to an

5 interview carrying a gun with him every day when he's being escorted.

6 He's got the gun with him. When he's brought to the room he's got the gun

7 with him. It's only when he's in the room the gun is put on the top of

8 the cabinet.

9 So in our submission Mr. Halilovic was treated with respect. He

10 answered the questions voluntarily, and importantly you heard from

11 Mr. Okic that not a line was typed up without Mr. Halilovic approving it.

12 Corrections were made, and at the end he signed the document. And at the

13 end of the document it even says as Your Honours -- as you can see, that

14 he had no complaint. It's the last paragraph of the -- "I dictated this

15 statement. It contains everything I said and I accept everything by

16 signing t I have also want to say that the authorised officials during the

17 interview treated me correctly." No complaint has been made that these

18 particular officials in this particular interview, which is what the Trial

19 Chamber is concerned with, did not treat him correctly.

20 Now, if he was treated correctly, the -- notwithstanding that he

21 didn't ask for a lawyer and a lawyer wasn't there, it has the indicia of

22 voluntariness. In the Prosecution's submission, it is prima facie

23 admissible as a probe difficult and relevant document voluntarily made

24 contemporaneously by the accused at the time, and is admissible because it

25 was not obtained by methods which cast substantial doubts upon its

Page 97

1 reliability noting again that he corrected and went through it line by

2 line before signing it. And its admission into evidence in our submission

3 would seriously damage the integrity of the proceedings.

4 There's one matter my learned colleague reminded me off and that's

5 in relation to the psychological pressure. I was referring earlier to the

6 circumstances of the taking and the times in Sarajevo. The Trial Chamber

7 is also entitled to view the psychological pressures as those pertaining

8 to everyone in the process in Sarajevo at the time. Mr. Halilovic was

9 certainly under some pressure being interviewed, but there was a lot

10 pressure on the inhabitants of Sarajevo at the time during the shelling

11 and the siege, and that's something you should also -- you should also --

12 you can also consider as not casting doubt on the reliability of the

13 statement.

14 [Trial Chamber confers]

15 MR. RE: There's just one time matter and that is I just draw the

16 Trial Chamber's attention to Mr. Okic's evidence that although the

17 interviews some of them did last a long time, over 12 hours, his evidence

18 was that a lot of time was spent in Mr. Halilovic actually going back

19 through the statement line by line. He said most of the time was spent in

20 the dictating and the correction of the statement, which is another thing

21 which points to its ultimate reliability. Those are my submissions.

22 JUDGE LIU: Thank you.

23 [Trial Chamber confers]

24 JUDGE LIU: Well, after consultation with my colleagues, this

25 Bench would like to reiterate what we have already said, that is, this

Page 98

1 Trial Chamber is governed by the Rules of Procedure and Evidence of this

2 Tribunal and is not bound by any national rules of evidence. Any evidence

3 obtained by means contrary to internationally protected human rights is to

4 be excluded in accordance with Rule 95 of the Rules.

5 Where the probative value is outweighed by the means to ensure a

6 fair trial, the evidence is to be excluded pursuant to Rule 89(D) of the

7 Rules.

8 We agree with the Defence. It is for the Prosecutor to prove

9 convincingly and beyond a reasonable doubt that statement was given

10 voluntarily and was not obtained by means of any illegal conduct.

11 We also believe that any accused should have the right to a fair

12 trial. This is an absolute right before any International Criminal

13 Tribunals. The reliability of a piece of evidence is not only on the

14 contents of that document but is also related to the means and the

15 procedures to obtain those documents. Since the right to the fair trial

16 of the accused is an absolute right, so under any circumstances, even in

17 the conflicts of war, those rights should not be derogated at all.

18 We hear the testimony of this witness concerning of the procedure

19 and the ways of conducting the interview and taking the statement, and we

20 hear that the accused was not offered to be assisted by a counsel. No

21 matter whether the accused is well-educated, a lawyer, a judge, or a

22 peasant, this is his inalienable right unless he voluntarily waives this

23 right. We hear the evidence that interview conducted for a month and for

24 every day there was ten to 12 hours for a session. We believe that is too

25 much.

Page 99

1 The Trial Chamber finds that the statement of the accused was not

2 given in accordance with the Statute and the Rules of Procedure of this

3 Tribunal. Therefore, the statement is excluded from the evidence pursuant

4 to Rule 95 of the Rules. It is so decided.

5 MR. MORRISSEY: As the Court pleases. Your Honours, could I just

6 ask for two minutes to consider whether I have any questions for this

7 witness? I was thinking about that as Your Honour ruled.


9 MR. MORRISSEY: And it's desirable that the witness be given a

10 chance to go. If I could just take 60 seconds of the Court's time to

11 think.

12 JUDGE LIU: Yes, please.

13 MR. MORRISSEY: I think I probably won't ask him questions.

14 [Defence counsel confer]

15 MR. MORRISSEY: Very well, Your Honour. I have one discrete topic

16 that I will ask about and it will be finished by --

17 JUDGE LIU: Yes. Could we have the witness, please. So we might

18 sit a little bit longer without the afternoon sitting.

19 MR. MORRISSEY: Yes. Thank you, Your Honour.

20 JUDGE LIU: I think it's very encouraging news considering the

21 good weather outside.

22 [The witness takes the stand]

23 JUDGE LIU: Yes, Mr. Morrissey, your cross-examination, please.

24 Cross-examined by Mr. Morrissey:

25 Q. Thank you, Mr. Okic I only have five minutes and possibly a little

Page 100

1 more of questioning, and it relates to the question of your knowledge of

2 covert surveillance matters. I understand that there are some areas that

3 you don't want to talk about concerning state secrets and so on. I just

4 want to ask you about some -- the procedures that relate to the putting in

5 place of covert measures.

6 First of all, what procedures needed to be undertaken when a -- a

7 telephone intercept was placed on a particular telephone? In other words,

8 what procedures did an operative who wanted that to be done have to go

9 through?

10 A. Basically to get substantial information which would point out to

11 possible criminal activity against the political background, that is to

12 say indicating that somebody might be engaged or preparing for some sort

13 of activity which would undermine the constitutional system, and that

14 information must be reliable. And then you can start proceedings and, of

15 course, you ask for approval in order to be able to use those measures

16 with regard to a person or a group of people or the entire institution

17 maybe.

18 Q. Okay. Now, it's those procedures I'm asking you about. For a

19 person at Mr. Halilovic's level of seniority as chief of staff of the

20 armed forces of -- well, perhaps even at an earlier stage, when

21 Mr. Halilovic was the commander of the armed forces in Bosnia, he had the

22 title of Chief of Staff of the Main Staff of that army. But at the time

23 he was the commander, who within the Ministry of the Interior would be the

24 person with the ultimate ability to approve the operative measure of

25 putting a telephone interception device on a telephone associated with

Page 101

1 Mr. Halilovic?

2 A. First of all, a request had to come from the directorate of the

3 military security and we never used those measures in relation to members

4 of the armed forces without an explicit request, formal request from the

5 military security department. And it was only upon receiving such an

6 official request from them that we would impose those measures on military

7 staff. That's -- that was the practice before the war, and I suppose

8 during the war as well.

9 Q. Okay. And apart from getting approval from the -- from somebody

10 in the military security organisation, who within the Ministry of the

11 Interior would have the responsibility under your rules and procedures of

12 approving telephone intercepts on Mr. Halilovic's phone? And I mean

13 within the MUP, within the Ministry of the Interior? Would it have to be

14 the minister or could it be somebody below him?

15 A. I think -- I think formally speaking, it was the chief of state

16 security because he was our national. But I'm convinced that the minister

17 of the interior was informed and, I mean, it was a high-ranking person we

18 are talking about, and I really don't believe that the minister could have

19 been unaware of that.

20 Q. Yes. And would it be -- in June of -- well, perhaps I should ask

21 you this. In October, November of 1992, who was the chief of state

22 security?

23 A. You mean 1992 or 1993?

24 Q. 1992 I mean at this stage, the first year of the war.

25 A. I think -- I think Mr. Ugljen, the late Mr. Ugljen had already

Page 102

1 been appointed at that stage.

2 Q. Yes. And at that particular time, who was the minister of the

3 interior?

4 A. If I remember correctly, Bakir Alispahic.

5 Q. Yes. Now, moving to June 1993, who at that time was head of state

6 security?

7 A. The same man.

8 Q. And who was the minister of the interior at that time?

9 A. I suppose Bakir Alispahic but I'm not sure. I think 1992 and

10 1993, those two men were the leaders in that sector.

11 Q. Yes. I understand. I just have to ask you a question. Was it

12 within your knowledge whether either or both of those men were members of

13 the political party, the SDA?

14 A. I have no knowledge of them being members of the SDA, yet I

15 believe they were appointed by the SDA. There was no way to bypass them.

16 They were SDA appointees. But I can't really claim that either of them

17 was a member of the party in a formal sense.

18 Q. Very well. Now, I want to turn to questions about the records, if

19 you like, the fruits of telephone tapping when that occurred. When a

20 telephone was tapped was it the practice that an employee of the state

21 security service would handwrite out the transcript of that telephone

22 call?

23 A. Yes. Yes. They would first listen to the tape and then write

24 down the entire conversation or maybe just the gist of it, depending on

25 what had been agreed with the operative officer or whatever his bosses had

Page 103

1 told him to do.

2 Q. Very well. And did they -- did the typist then submit that report

3 to a member of the state security service for the purpose of review and

4 analysis?

5 A. In principle, the report would be submitted to whoever was in

6 charge of that particular case.

7 Q. Yes. Was it then the practice of that person who received the --

8 the -- the handwritten document to put the relevant parts of that document

9 into a report?

10 A. Yes, by all means.

11 Q. I understand. And was it -- was it required of that SDB operative

12 to put everything that had been contained in the telephone call into their

13 report or just put into their report the parts that seemed to be of

14 significance and importance to them?

15 A. For the most part, I only put what was relevant. People talked

16 about all kinds of thing over the phone. We did not have the resources or

17 the time, for that matter, to monitor everything, especially private

18 conversations of no consequence to us.

19 Q. Whereabouts were the records of these telephone calls preserved in

20 the SDB, and I mean both the handwritten documents and also the reports

21 based on those handwritten documents?

22 A. This very much depended on the case.

23 Q. Yes. Was there an archive section to which those reports -- to

24 which those transcripts and reports were supposed to be sent?

25 A. There was the archive with the so-called inactive files, files

Page 104

1 that were closed. But all the copies, all the transcripts were left in

2 the archive. Whenever a file was no longer required by someone, it would

3 be sent to the archive. But there was no separate archive for

4 transcripts, if that's what you mean.

5 Q. No, no. But -- I understand. There was a general archives, but

6 all transcripts and reports based on those transcripts should have been

7 sent to the archives once that file became inactive; is that correct?

8 A. Yes. Within the framework of each specific file obviously.

9 Q. Yes. And who is it -- and this archive is under the jurisdiction

10 of the Ministry of the Interior; is that correct?

11 A. It was at the time. Now that the secret service has been severed

12 from the ministry, I believe it is now on under the purview of the

13 intelligence service or whatever its name happens to be.

14 Q. I understand. Can you tell us briefly when that severance took

15 place approximately?

16 A. I think in 1996. The -- the agency for investigations and

17 documentation was established.

18 Q. Thank you. What were the procedures by which a member of the

19 security -- sorry, by which a member of state security could access

20 documents that had been placed in the archives?

21 MR. RE: Could I -- at this point could I make an inquiry as to

22 whether this has relevance to the proceedings per se or whether the

23 Defence is asking the witness these questions so they could perhaps -- to

24 assist their own lines of inquiry in their preparation?

25 JUDGE LIU: Yes. Well, Mr. Morrissey, I believe that in the

Page 105

1 cross-examination you could ask any questions so long as they are relevant

2 to this case.

3 MR. MORRISSEY: Yes, Your Honour.

4 JUDGE LIU: So maybe you could be more specific in your questions.

5 MR. MORRISSEY: I can, Your Honour, but the -- the specifics

6 relate to -- the Prosecutor has intended in the past to -- or indicated

7 that they wanted to tender a number of telephone transcripts arising from

8 the MUP, and we want to find out exactly how it is that these transcripts

9 are stored and how it is that these transcripts can be accessed. It's --

10 they're not this witness's transcripts and I made it quite clear we're not

11 suggested he's connected with them in any way. But that's a great

12 advantage, in a sense, because he can tell us what the procedures are and

13 when other witnesses come along then the Court will have an idea and so,

14 frankly, will the Defence exactly how it is that one gets access to these

15 documents and where they're to be stored and found. So it is directly

16 relevant. We -- we -- we may find ourselves having an admissibility

17 argument on the question -- I'm trying to restrain myself here from making

18 a criticism of him, but we're going to have an admissibility argument, I

19 would think, on some of these transcripts, if I were to put that

20 neutrally. So that's why I'm asking these questions.

21 JUDGE LIU: Well, you may proceed, but do not expand it to some

22 other areas.

23 MR. MORRISSEY: No, Your Honour. There won't be any collateral

24 attack. I'll just -- I'll stick to this -- to this -- I've got a list of

25 questions which I think is exhausted in five, perhaps less than five

Page 106

1 minutes now.

2 Q. Okay. So that the question I think originally was -- I've now

3 forgotten the exact, so -- I'm sorry Mr. Okic, but that's okay. The

4 question is what were the procedures by which a person within the security

5 administration could get access to materials once they'd been archived?

6 A. There's a special form. There was a special form at the time that

7 you had to fill in. You send it up the chain of command and the bosses

8 would have to approve it. First he would be asked what he needed the file

9 for. If it was no direct relation to what he was doing, he would need to

10 prove that it was relevant for something that he was doing at the time.

11 It was only upon that that he would be granted approval.

12 Q. Okay. I think I've got five questions left now, perhaps six.

13 Very well. Thank you. Now, the question is when a document is

14 proposed to be destroyed, what is the procedure for getting permission to

15 destroy a document, and in particular a telephone transcript?

16 A. Those transcripts were not destroyed. They were archived. There

17 was a special procedure to have a file destroyed. If at some point in a

18 case or in an investigation one concluded that there was no proof of

19 subversive activity, there could be a request to close the case, and it

20 was in such cases that the entire file would be destroyed.

21 Q. In the case of a file being destroyed, there should be a record of

22 that request to destroy the file being made; is that correct?

23 A. Needless to say, there's a request by whichever operative is in

24 charge of the case, the request to have the file destroyed with a

25 statement of reasons; why this request was made, to begin with.

Page 107

1 Q. Okay. I just have a question about -- about labelling. Where

2 operative measures were placed against a person, whether it be telephone

3 intercepts or something else, what did the code numbers 02 mean when

4 placed next to that person's name or their code name? In other words,

5 what did it mean that the numbers 02 were placed next to that person's

6 identifying tag?

7 A. I can't say. I'm not sure what you have in mind, 02. We used

8 numbers to mark certain lines of inquiry. Perhaps that's what you have in

9 mind.

10 Q. Yes, that is what I have in mind. If a person was marked as 02,

11 did that mean that they were designated as an enemy of the state?

12 A. Internal enemy of the state. That was only for a while, because

13 these numbers changed over time. I can't specifically remember whether

14 that was what it meant in 1993, your code, I mean 02.

15 Q. Yes. Well, where do we turn to find out what 02 means in the

16 year -- in the years 1992 and 1993? There must have been a -- if you like

17 a book with the codes explained somewhere or some document with the codes

18 explained. Could you -- or could you enlighten us as to that situation?

19 A. It was an internal matter. The relevant people were informed. As

20 of such-and-such a day, 02 ceases to mean internal enemy and takes on a

21 whole new meaning, and then all the branches, units, state security units

22 on the ground would receive appropriate information and the code would

23 then change and be used differently from then on.

24 Q. Yes. If -- it may not be within your knowledge but I'll ask you

25 to comment on this. If a document contained a reference to Sefer

Page 108

1 Halilovic's code name and it had 02 next to it, at sometime after he was

2 dismissed as commander of the army and made chief of staff, to you looking

3 at that document you would say that the 02 would mean he was classed as an

4 interim enemy and surveilled accordingly; correct?

5 A. No. This number, 02, that's what it said in the heading. It

6 wasn't next to the person's name, the person that these measures were

7 imposed against.

8 Q. Okay.

9 A. Maybe those in charge of his case decided to refer to him as 02 as

10 a reference number, but I would need to go back to the original document

11 for that. However, this code, 02, only ever marked a line of inquiry on

12 the face of any of the documents.

13 Q. But the line of inquiry -- yes. Sorry.

14 MR. MORRISSEY: Well, perhaps if the witness could be then MFI 256,

15 please, the Bosnian version in all cases, please, Your Honour.

16 We're going to show you a particular document here, Mr. Okic. You

17 comment on it if you're able to do so. 256. Sorry.

18 Your Honours, the English version has come up, but might I ask,

19 please, that the B/C/S version be --

20 THE WITNESS: [Interpretation] What I can see here is the letters

21 UB, which means security administration. I suppose it's their reference.

22 And you can see 322 in the upper right corner, and just below that the

23 letters UB. I suppose it's their reference.


25 Q. Do you see the 0 -- some of that writing is -- I have to tell you

Page 109

1 is Defence -- is written on by Mr. Dzambasovic, possibly, or other Defence

2 investigators and the -- the words "doc brief 322" would be Defence

3 notations. But it's the 02 below that that I'm interested by. What does

4 that 02 indicate to you?

5 A. 03 on the right-hand side means that the document was produced by

6 department 03.

7 Q. Okay.

8 A. But as to 02, I really have not a clue what it means.

9 Q. But you can see what I'm talking about? It's in the top

10 right-hand corner there.

11 A. Yes. Yes, I see the number, but I really have no idea what it's

12 about. I see that the document was produced from department 03.

13 Q. And what is department 03? I'm sorry, I'll stop you there for a

14 moment. For reasons of confidentiality, could we just move briefly to the

15 private session here?

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

17 [Private session]

18 (expurgée)

19 (expurgée)

20 (expurgée)

21 (expurgée)

22 (expurgée)

23 (expurgée)

24 (expurgée)

25 (expurgée)

Page 110

1 [Open session]


3 Q. Finally can I ask you the following questions: When a person was

4 placed under -- under surveillance, did there have to be a formal decision

5 taken to terminate that surveillance or did that surveillance naturally

6 lapse after a period of time?

7 A. These measures could not just lapse. Whoever is in charge of the

8 case must request for measures to be taken or for measures to stop being

9 taken.

10 Q. Was it necessary for your organisation to keep records of those

11 involved in surveillance of a particular individual?

12 A. I think in Mr. Halilovic's case all the information we obtained,

13 virtually all the information we obtained, including in document, were

14 submitted or forwarded to the military security administration.

15 Q. Very well. But copies would have been reserved at the MUP, at the

16 state security service of that material; is that correct?

17 A. Only if ordered by the chief of service.

18 Q. All right. Do you happen to know whether he issued such an order

19 or whether he handed over everything that he had?

20 A. This is the first time I have set eyes on a document like this,

21 any covert measures being imposed on Mr. Halilovic. But during the

22 investigation itself, I never laid eyes on a document like this. I have

23 no idea whether such documents in fact exist in the security

24 administration or whether all of them were eventually submitted to the

25 military security administration.

Page 111

1 Q. Yes. Well, those are the questions. Thank you very much.

2 JUDGE LIU: Thank you. Any redirect?

3 MR. RE: No, Your Honour.

4 JUDGE LIU: Thank you. At this stage are there any other

5 documents to tender? It seems to me -- yes?

6 MR. RE: Has that also one been marked for identification?

7 JUDGE LIU: Yes. It's already admitted, I believe. No? That

8 is --

9 THE REGISTRAR: Your Honour, that is MFI 256.

10 MR. MORRISSEY: You were, I don't believe it's been admitted into

11 the evidence as yet, but I think this witness has not agreed that he's

12 seen it before. I think in the future the Prosecutors are going to lead

13 some evidence from someone who they -- they say will be able to be an

14 appropriate person for telephone transcripts and at that time we may

15 decide to deal with it in that way.

16 JUDGE LIU: Yes. Yes, please.

17 Well, Witness, thank you very much for coming to The Hague to give

18 your evidence. After we are adjourned, Madam Usher will show you out of

19 the room. We all wish you a pleasant journey back home.

20 So the hearing for --

21 THE WITNESS: [Interpretation] Thank you, too, Your Honours.

22 [The witness withdrew]

23 JUDGE LIU: So the hearing for today is adjourned.

24 --- Whereupon the hearing adjourned at 2.08 p.m.,

25 to be reconvened on Monday, the 4th day of

Page 112

1 April, 2005, at 9.00 a.m.