1 Friday, 15 April 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.40 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. I

9 believe Mr. Morrissey has something to raise.

10 MR. MORRISSEY: Well, Your Honour, I do. Sorry, pardon me, Your

11 Honour. I do have something to raise.

12 We don't have any proofing notes for Mr. Karavelic, and we got a

13 list last night of 50 exhibits that the Prosecution wants to tender

14 through that person or wants to use with that person.

15 Now, the result of all of that is that, in my submission, we

16 wouldn't be in a position to agree to starting that witness at all today,

17 even in evidence in chief. We have to be in a position to object to

18 documents if we see fit. We have to get instructions from the accused

19 man about the proofing notes. We don't know whether they're extensive or

20 not.

21 I'm sorry. I regret doing this. I think it's important to make

22 a bona fide effort to speed things along as best as possible, but the

23 time has now been reached where I just have to say in discharging my job

24 as an -- attempting to be competent counsel, I couldn't agree to it at

25 the moment. I'm sorry to take that position, but that's where I find

1 myself now.

2 So that's what I have to say at this stage, Your Honour.

3 JUDGE LIU: Mr. Weiner. I'm extremely sorry to hear that the

4 proofing notes have not been furnished to the Defence at this stage.

5 MR. WEINER: Your Honour, I spoke with Mr. Re. They proofed the

6 witness to 7.30 last night. They completed the proofing notes last

7 night. They're four and a half pages. First thing this morning they

8 brought the witness in. He read -- they've had translated the proofing

9 notes to him. He's made corrections. The corrections are being typed.

10 We should have them within five minutes. They were just finalising the

11 corrections and bringing him to a signature.

12 JUDGE LIU: Well, on our list we have many witnesses. I must

13 say, four witnesses before the summer -- before the recess, sorry. And

14 it seems to me it's not realistic for us to finish all those witnesses

15 before the recess.

16 However, the problem for us is we could not allow a witness to

17 testify in a half way and wait for two weeks and a half and come back to

18 continue. We don't know what would happen during this two and a half

19 weeks. And we also believe that it is not fair to start a witness if the

20 Defence has not got the proofing notes yet.

21 So what shall we do?

22 Yes, Mr. Morrissey. Do you have any good suggestions?

23 MR. MORRISSEY: Yes, I do have, I hope, Your Honour.

24 In my submission, the appropriate course is not to proceed with

25 the witness Delalic next week. We can proceed with this witness once

1 we've got the proofing notes, once we've had time to get instructions.

2 We can do that today. Your Honours may or may not know this, but we

3 can't visit on weekends at the UNDU. We're not -- we just can't.

4 Sometimes it can be arranged to do so late on a Friday, but even that

5 causes major headaches.

6 But in any event, we -- what would be -- one way to handle it is

7 we could spend -- finish the witness that's here now. That's important

8 because she's six months pregnant. And then spend the rest of the day in

9 dealing with the proofing notes which I'm told we'll get in five minutes,

10 and we can get -- we may be able to get access to Mr. Halilovic today.

11 We'll do everything we can to arrange that.

12 We also have to get -- okay. Sorry, I'm making a speech. I'll

13 stop that.

14 So that's the best way to proceed in my submission. We can start

15 that witness on Monday when the witness Adie finishes. And I think it's

16 fair to say that we would finish that witness within the week, and if

17 there was any danger of it, we could tell the court and extra sittings

18 might be able to be arranged.

19 But my view is that we would be able to finish that witness. And

20 I think we may also be able to finish the pathologist. There is no

21 chance, however, that we would finish Ramiz Delalic next week, none. So

22 that seems to be the only way we can viably proceed.

23 Can I indicate that if we had Karavelic -- sorry, Mr. Karavelic,

24 I think that the pathologist -- there is going to be some

25 cross-examination with the pathologist and a bit more than there was with

1 the last one because at Grabovica there's no dispute at least there were

2 some -- she didn't have much to say, and in any event we're not disputing

3 that there were obviously some killings that took place there. But

4 things are a bit more complicated at Uzdol, of course

5 But having said that, it may be that the Prosecutor wants to lead

6 89(F) evidence in relation to that. We can talk to them about that. And

7 the cross-examination is, I think, under control. So that's my view. I

8 think we can accomplish everyone except for the witness Delalic next

9 week.

10 Obviously there's -- there are two others that we don't know

11 about at the moment; that's Mr. Alispahic and of course Mr. Mujezinovic.

12 But I understood that the Prosecutors weren't going to call them next

13 week in any event, or weren't proposing to, so we to go into -- into --

14 the Prosecution case will go over the break anyway; in other words, there

15 was no chance of finishing it.

16 So that's my suggestion, Your Honour. The Prosecutors will have

17 something to say about it.

18 I have got a couple of other matters to raise about -- other

19 matters to raise but I think if we're talk about scheduling now, perhaps

20 I'll just keep those, and we can talk about those a little bit later.

21 JUDGE LIU: Yes, Mr. Weiner.

22 MR. WEINER: Your Honour, I would suggest that we get the

23 proofing notes and we start the witness Karavelic today, this afternoon.

24 However, if the Court's not taking that view, would rather start

25 him on Monday, I would agree the best thing we do is we start with Kate

1 Adie on Monday, finish her, then go into Karavelic and then try to finish

2 off the pathologist at the end of the week. We would not have a chance

3 to do Ramiz Delalic. We will just have to bring him back after the

4 break, the two-week break, and we the can proceed with the final three or

5 four witnesses that exists, that are remaining.

6 JUDGE LIU: Well, I think the only problem is that whether we are

7 going to sit this afternoon or not.

8 MR. MORRISSEY: Well, Your Honours, my submission is not,

9 frankly. Experience shows that if the Defence -- the better prepared the

10 Defence is the shorter the cross-examination is, and really we need that

11 time. I frankly indicate that when we get the proofing notes because Mr.

12 Karavelic is rather like Mr. Cikotic, a person who may have some

13 expertise to bring to bear, but we don't know yet but he might have. As

14 with Mr. Cikotic we might seek to -- we might ask to speak to him

15 ourselves. We haven't decided that yet, and it's not appropriate to do

16 it until we get the proofing notes. It's not even appropriate to ask to

17 do so yet. We just want to see the proofing notes before we make any

18 such decision. Then we'll ask and then we'll see what response we get.

19 But Your Honour, really we -- I think in good conscience I have to say we

20 cannot proceed this afternoon.

21 JUDGE LIU: Yes.

22 MR. WEINER: I just want to make one quick comment.

23 The remark was the better prepared the Defence is the shorter the

24 cross-examination. With or without the proofing notes, cross-examination

25 will not start until probably Tuesday, if not Wednesday. So either with

1 or without the proofing notes, they're going to have them this morning,

2 in the best situation cross-examination won't start until mid-Tuesday or

3 Wednesday, so they still have four days to work on the matter, to prepare

4 for cross-examination.

5 Thank you.

6 MR. MORRISSEY: Your Honours, we still don't want to start this

7 afternoon. We have to take instructions. We have to be in a position to

8 object to certain documents, and at the moment we still don't even have

9 the proofing notes, frankly, so we're just not ready.

10 JUDGE LIU: Well, I'm extremely sorry about this situation, and

11 the -- it seems to me that it is not fair, at least to the Defence team,

12 that we'll start the witness without the proofing notes. In the

13 meantime, the Defence needs some time to discuss with their client

14 concerning this, with all the documents furnished to the Defence, which I

15 heard there are a lot of documents that will go through this witness.

16 So we decided to continue the present witness and finish her as

17 early as possible and let her go back for the weekend, because she's in a

18 very delicate condition. We cannot keep her for very long.

19 We are not going to sit this afternoon to give enough time to the

20 Defence to prepare for their case.

21 Next Monday, we'll hear Ms. Kate Adie, and we'll try to finish

22 her in one day. Right after that we'll hear Karavelic and to see how far

23 we have to go. But, however, we at least have to finish Karavelic next

24 week. This is the most safer approach at this moment.

25 It is so decided.

1 Well, Mr. Morrissey, as for the other matters, are you going to

2 talk it now or after we finish the witness?

3 MR. MORRISSEY: Your Honours, I had in mind after we finished the

4 witnesses, and in fact I haven't even brought the list with me. If I

5 could just be excused briefly to fetch it I will, but I think the witness

6 is here, and I had in mind she should be finished as quickly as possible

7 and then I an raise some matters.

8 I didn't have in mind to ask Your Honours to make any quick

9 rulings on the spot today. There's just some matters that now we're

10 coming towards the end of the Prosecution case we need to determine, the

11 Karic issue, the record of interview issue, and there are a number those

12 sort of issues of that been flagged in the past, and we just need to know

13 in some cases what the Prosecution's position about those is, so it would

14 be appropriate to raise them at the end. It might be in any event that

15 my learned friend Mr. Re is concerned with at least a couple of those, so

16 I should mention them. We've got some matters to raise about the witness

17 Delalic, some matters to raise about -- look, I'm raise them after the

18 witness, if I --

19 JUDGE LIU: Well, if those matters will take some time and we

20 might sit in the afternoon for an hour to discuss it. It depends on how

21 long this witness will take.

22 MR. MORRISSEY: Your Honours, if I stop talking, that will assist

23 the witness. So ...

24 MR. WEINER: We could also move quicker if we could get a list of

25 issues that are to be raised so we can prepare for them and have the

1 right personnel here for the matters.

2 MR. MORRISSEY: I think that's appropriate, Your Honours. So

3 if -- if while this witness starts if I could just be temporarily excused

4 from the court I'll go and get that.

5 JUDGE LIU: Yes, of course.

6 MR. MORRISSEY: Thank you.

7 JUDGE LIU: So you're not going to do the cross-examination, I

8 suppose.

9 MR. MORRISSEY: No, no.

10 JUDGE LIU: Good. So we can have the witness, please.

11 [The witness entered court]

12 WITNESS: WITNESS I [Resumed]

13 [Witness answered through interpreter]

14 JUDGE LIU: Good morning, Witness.

15 THE WITNESS: [Interpretation] good morning.

16 JUDGE LIU: Did you have a good rest yesterday?

17 THE WITNESS: [Interpretation] I tried.

18 JUDGE LIU: Are you ready to start?

19 THE WITNESS: [Interpretation] Yes.

20 JUDGE LIU: I can promise you that we'll let you go today.

21 THE WITNESS: [Interpretation] Thank you, Your Honour.

22 JUDGE LIU: Mr. Mettraux, your cross-examination, please.

23 Cross-examined by Mr. Mettraux:

24 Q. Good morning, I am Guenael Mettraux and I'm appearing on behalf

25 Mr. Sefer Halilovic.

1 Yesterday, in your evidence you gave a detailed account of your

2 activities in the early hours of the 14th of September, 1993. Can you

3 remember that?

4 A. I was sleeping.

5 Q. I'm going to take you back at the time when you woke up, and I

6 would like to go into private session to do that, if I may.

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

8 [Private session]

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25 [Open session]

1 JUDGE LIU: Now we are in the open session.

2 MR. METTRAUX: Thank you.

3 Q. Madam, I'm taking you back to the first time when you went out.

4 You've indicated that none of the bullets hit you at that stage.

5 Did you see where the bullet landed? Was it on your house behind you, in

6 the windows of your house behind you?

7 A. Yes. Because there was wind falling all over me.

8 THE INTERPRETER: Interpreter's correction: Sand falling all

9 over me.

10 MR. METTRAUX:

11 Q. Very well. Then you went back inside the house; is that correct?

12 A. Yes.

13 Q. And as far as you could tell, none of the soldiers tried to

14 follow you in the house as you went to your house at that stage?

15 A. None.

16 Q. You've begin evidence yesterday that as you were back inside your

17 house you saw the soldiers setting fire to the barn in front of your

18 house. Can you remember that?

19 A. Yes.

20 Q. That because you wanted to extinguish that fire, you decided to

21 get out of your house again and confront the soldiers; is that correct?

22 A. I had no intention of putting up resistance. All I wanted to do

23 was put the fire out in the barn.

24 Q. Yes. I'm sorry. My question was probably not very well put.

25 What I meant to say is: You wanted to get out to extinguish the fire,

1 and you decided and did so as a matter of fact despite the fact that

2 those five individuals had shot at you a moment before; is that correct?

3 A. Yes.

4 Q. And when you went out again, madam, how far were you from the

5 five soldiers in metres, approximately?

6 A. 20 to 30 metres.

7 Q. And you've indicated, I believe, that the soldiers started

8 shooting at you again; is that correct?

9 A. Yes. Once I was out of the house.

10 Q. Did the five soldiers shoot at you or was it one, two, three of

11 them?

12 A. Just one.

13 Q. And did he fire single shots or was it a burst of fire again?

14 A. It was a burst.

15 Q. And none of the bullets hit you on that occasion; is that

16 correct?

17 A. No. It was when I came back into the house and went as far as

18 the back door.

19 Q. It was inside the house between the first and the second time

20 when you came out again; is that correct?

21 A. Between the first and second time, that's correct.

22 Q. Yes. Thank you.

23 I'd like now to ask you a few questions about the general

24 situation in the village and in the area at the time. Please, I remind

25 you not to mention the name of your village, and I will try to do the

1 same as well.

2 Would you agree that because the front line and enemy forces were

3 close by, living in the villages around Uzdol was rather dangerous for

4 civilians and soldiers; is it correct?

5 A. Yes.

6 Q. However, a number of people were attached to their homes, just

7 like yourself, and decided to stay in the village despite the risk; is

8 that correct?

9 A. Yes.

10 Q. However, to protect both the villages and villagers and soldiers

11 who lived there, a number of measures were taken to protect both the

12 villages and the people living in there, and the first such measures was

13 a number of HVO positions, is that correct, in and around the villages?

14 MR. WEINER: I'd object to that, Your Honour.

15 JUDGE LIU: Why?

16 MR. WEINER: She can't answer as to the HVO strategy, the HVO

17 decisions as to what to protect. It should be to a soldier or someone

18 from the HVO command to do that.

19 JUDGE LIU: I believe that the Defence counsel was not going to

20 ask the strategy of the HVO, just from her own experience, whether she

21 notice the any deployment of the HVO soldiers.

22 Maybe, Mr. Mettraux, you could be more specific in your question.

23 MR. METTRAUX: Yes, Your Honour. I will.

24 Q. Madam, while you were living in the village in the month of

25 August and September of 1993, did you observe any HVO positions in or

1 near the village in which you lived?

2 A. Yes. I saw it from the village, but I didn't go as far as the

3 lines to have a look.

4 Q. From your own observation, madam, and keep it -- keep it to that,

5 how many of those outposts or HVO positions did you observe in or around

6 the village in which you lived?

7 A. All you could see from our village was a single position.

8 Q. Was it a position which was inside the village or a position that

9 was outside of the village?

10 A. Outside the village.

11 Q. And how far was it, madam, from your village?

12 A. I don't know.

13 Q. And did you observe any other HVO positions as you would walk

14 from your own village to other villages or, for example, to Cer? Did you

15 see any other HVO positions during those walks?

16 A. I'm not sure I understand the question.

17 Q. During that period of August and September 1993, you didn't say

18 at all time in your home, did you?

19 A. No, I did not.

20 Q. So you walked around your village, and you also went on a number

21 of occasion - I will come back to that - but you also went on a number of

22 occasion to the village of Cer for instance; is that correct?

23 A. Cer, yes.

24 Q. Thank you for that. Well, what I'm trying to ask you is whether

25 during those walks or during your going to the village of Cer you saw any

1 HVO positions, other than the one which you've already mentioned to us.

2 A. No.

3 Q. Very well. Did you see or did you observe on -- either from your

4 village or during those walks HVO positions, artillery positions? Did

5 you observe any of those or is it something you didn't see at the time?

6 A. No.

7 Q. You saw, however, the tank which was placed next to the school in

8 Cer, didn't you?

9 A. It was placed outside the school.

10 Q. Thank you.

11 MR. METTRAUX: I'd like to go back for a moment into private

12 session, Your Honour.

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

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17 [Open session]

18 JUDGE LIU: Now we are in the open session. You may proceed.

19 MR. METTRAUX: Thank you.

20 Q. Madam, you've discussed also in your evidence-in-chief yesterday

21 with the Prosecution an organisation known as the Home Guard. Do you

22 remember that?

23 A. No.

24 Q. Well, it may be a matter of terminology.

25 MR. METTRAUX: Your Honour, we may have to go back for a second

1 into private session. I'm sorry for that.

2 JUDGE LIU: Yes. We'll go back to the closed session.

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25 [Open session]

1 MR. METTRAUX:

2 Q. Madam, this -- this group which you referred to as Domobrani, a

3 home guards, was part of the HVO; is that correct?

4 A. That is correct.

5 Q. Are you able to say in approximate numbers how many people around

6 Uzdol were members of Domobrani, Home Guard, even in general terms?

7 A. I am unable to say the exact number.

8 Q. An approximate number will do if you can.

9 A. About ten of them.

10 Q. Very well. And those individuals had been issued automatic

11 weapons; is that correct?

12 A. No.

13 Q. But they carried weapons with them, did they?

14 A. They had M-48 rifles.

15 Q. For the benefit of the Court, madam, could you tell us what an

16 M-48 rifle is? Is that an older sort of rifle?

17 A. Well, I'm unable to explain that to you. I know that they called

18 them M-48s.

19 Q. Is that an automatic rifle or a semi-automatic rifle?

20 A. I really don't know.

21 Q. Yes. Okay.

22 MR. METTRAUX: Can we go back into private session, Your Honour,

23 for a second?

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

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5 MR. METTRAUX: Thank you.

6 Q. Madam, you've indicated that a number of members of the Domobrani

7 were living in other villages. Were any of them living in the village of

8 Kriz?

9 A. Yes.

10 Q. And who was the person or the persons who were members of

11 Domobrani and who lived in Kriz in September of 1993? Can you remember?

12 A. I only remember Ivan Ratkic from Kriz.

13 MR. METTRAUX: Your Honour, could the witness please be shown

14 what is now marked as -- it's an exhibit, D350.

15 Q. You're going to be shown another picture, madam, from the village

16 of Kriz, and I'm going to ask you to make one short marking on that

17 picture.

18 Very well. Can you recognise the village, madam?

19 A. Yes, I can.

20 Q. Can you locate on that picture the house where Ivan Ratkic was

21 living in September of 1993?

22 A. Yes, I can.

23 Q. Can you please mark it with an H.

24 A. [Marks].

25 Q. Thank you very much.

1 MR. METTRAUX: I'd like to tender that, Your Honour.

2 JUDGE LIU: Any objection? Yes. It's admitted into the

3 evidence.

4 THE REGISTRAR: That will be Defence Exhibit 372.

5 MR. METTRAUX: Thank you.

6 Q. Madam, is that correct that your father kept a hunting rifle at

7 home?

8 A. Yes, it is.

9 Q. Did he also keep any hand-grenades as far as you knew?

10 A. No.

11 Q. No, you don't know; or no, he didn't have any such weapons?

12 A. As far as I know, he never brought any home.

13 Q. Do you know him to have possessed any or carried any?

14 A. I don't know whether he was issued with any while standing guard,

15 but he never brought any home.

16 Q. Very well. Do you know where was rifle was on the morning of the

17 14th of September, 1993?

18 A. It was under the sofa.

19 Q. Did you see the weapon that morning?

20 A. No.

21 Q. Did you go and look for it at any stage?

22 A. No.

23 Q. And at that time, madam, do you know where your brother was? Was

24 he in the house, outside of the house? Do you know that?

25 A. No.

1 Q. Very well. I think you've given some evidence yesterday about

2 individuals involved in helping out with the army other than in combat

3 duties or guard assignments, and I think you've given us some evidence

4 that a number of women from the villages would go and cook for the

5 soldiers in Cer; is that correct?

6 A. It is correct. They went there to clean and also to do the

7 dishes and to wash. There were -- the chefs were there, the main cooks

8 who normally worked there.

9 Q. And how often did you go to the school yourself during the month

10 of August and September 1993? How regularly, if you want? Was it every

11 day, once a week, twice a week?

12 A. Once a week.

13 Q. And in September 1993, madam, the school in Cer was the battalion

14 command of the 3rd Corps of the Rama Brigade; is that correct?

15 A. Yes.

16 Q. And during that period that is in the early days or weeks of

17 September 1993 there were quite a large number of soldiers within the

18 school at all times; is that correct?

19 MR. WEINER: I'd object to that, Your Honour. Quite a large

20 number? This is an issue that there should be some numbers specifically

21 stated. Quite a large number, we can be talking about thousands. What

22 are we talking about?

23 MR. METTRAUX: Well, Your Honour, it was a general question,

24 and --

25 JUDGE LIU: Well, maybe you could be more specific in this

1 aspect, yes.

2 MR. METTRAUX:

3 Q. Well, madam, can you remember generally how many soldiers would

4 be in the school at the time when you personally went there? Can you

5 remember a number, an approximate number?

6 A. We never saw a large number of soldiers. There would always be

7 between 10 and 15 soldiers when we were there.

8 Q. And are you aware at that time that there would be more or less

9 than that and there was actually shifts of soldiers coming and going to

10 the school? Is that something that you were aware of?

11 A. I really have no idea. I cannot remember.

12 Q. That's okay. I would like now to take you to the last area of

13 your evidence, and we will be done within five to ten minutes.

14 In your evidence-in-chief yesterday, you described how you fled

15 from your village and ran towards the village of Rajici. Do you remember

16 that?

17 A. Yes, I do.

18 Q. And you gave evidence yesterday about some shooting in your

19 direction coming from your right and your left and hearing the sounds of

20 "Allahu Akbar." Can you remember that?

21 A. Yes, I can.

22 Q. Are you able to assess the distance from yourself as you ran and

23 the people who you believed to be shooting at you? Are you able to make

24 that assessment?

25 A. No, I'm not.

1 Q. And yet you didn't see any of the shooters yourself, did you?

2 A. No, I didn't. I was just shot at from left and from right.

3 Q. What about the sounds of "Allahu Akbar," madam, was it coming

4 from the right or the left? At the time you were running, that is.

5 A. That was coming from the left, from the direction of Prskalo's

6 house.

7 Q. Very well. And you've indicated that you didn't recognise any of

8 the persons whom you believed to be shooting at you. You didn't see

9 any -- you didn't see the uniforms that those people might have been

10 wearing at the time if any; is that correct?

11 A. No, I didn't.

12 Q. And none of the shots hit you on that occasion?

13 A. No.

14 Q. And did you see where the bullet landed?

15 A. No, I didn't as I was running.

16 Q. So you were terrified and just kept on running. Would it be fair

17 to say that you were going through a state of extreme excitement at the

18 time trying to save your life? Is that correct?

19 A. I don't understand you.

20 Q. Well, is that the fact that you run away in fear for your life

21 and that you came across a soldier which you grabbed and it took you a

22 few seconds to recognise that that man was in fact your uncle? And

23 please don't mention his name.

24 A. No. I was the one who grabbed him because I was about to fall

25 down. I could no longer stand on my own feet.

1 Q. But as you grabbed your uncle, you didn't realise for a few

2 seconds that he indeed was your uncle; is that correct?

3 A. Not until he spoke and told me to run.

4 Q. And is it also correct that the man who was running behind you

5 and whom you believed to be a Muslim soldier was in fact the Croatian

6 neighbour of your uncle? Is that correct?

7 A. Yes.

8 Q. Thank you very much, madam, for your patience. That would be

9 all.

10 JUDGE LIU: Thank you.

11 Any redirect?

12 MR. WEINER: Yes.

13 Re-examined by Mr. Weiner:

14 Q. As you were running after Rajici, or through Rajici, did you see

15 any HVO soldiers arrive?

16 A. No. It was when we were on our way to Kranjcici that we saw

17 lorries arriving from Prozor.

18 Q. And did those HVO soldiers shoot at you?

19 MR. METTRAUX: Well, Your Honour --

20 THE WITNESS: [Interpretation] No.

21 JUDGE LIU: Yes.

22 MR. METTRAUX: The answer being questioned, but I'm struggling to

23 see how it came out of cross-examination.

24 MR. WEINER: Well, he is --

25 JUDGE LIU: Well, I think the witness has already answered the

1 question.

2 You may proceed.

3 MR. WEINER: Thank you.

4 Q. You were asked about certain HVO soldiers that lived in your

5 village. Do you know if any of those persons slept there on the evening

6 of the 13th into the morning of the 14th? Were any of those persons

7 present?

8 A. I can't remember.

9 Q. You were asked about civilians living in your village. Were

10 civilians living in the village of Rajici?

11 A. Yes.

12 Q. Were civilians living in the village of Cer?

13 A. Yes.

14 Q. Were civilians living in the village of Kriz?

15 A. Yes.

16 Q. And civilians were living in the village of Zelenike?

17 A. Yes.

18 Q. You mentioned certain members of the Home Guard. Do you know if

19 any of those persons were present on the eve -- during the sleeping hours

20 of September 13th or the morning hours of September 14th? Were they

21 present in their homes?

22 A. I can't remember.

23 Q. Now, you were asked about -- at the beginning of

24 cross-examination about the uniforms that the soldiers were wearing, the

25 camouflage uniforms, and you indicated that -- and also that all uniforms

1 are the same. Had you ever heard any HVO soldiers ever yelling the chant

2 "Allahu Akbar."

3 MR. METTRAUX: Well, Your Honour, I don't see how the witness

4 could answer that question considering that she didn't know or she didn't

5 give evidence as to who she saw or heard shouting "Allahu Akbar." This

6 is pure assumption.

7 JUDGE LIU: Yes, I agree with the Defence.

8 MR. WEINER: Your Honour, they have raised an issue this morning

9 that all soldiers were wearing similar uniforms, and they're trying

10 apparently to raise the inference that maybe their own soldiers were

11 shooting at them. As a result, we have the right, Your Honour, to get

12 into that issue, whether or not the HVO soldiers that she knows from the

13 village or the HVO soldiers that she has seen ever used that chant, the

14 same chant she heard that morning.

15 Based on the inference they raised, Your Honour, we have the

16 right on redirect examination to ask that.

17 JUDGE LIU: Well, I believe this question is too obvious to

18 answer.

19 MR. WEINER: Then can she at least --

20 JUDGE LIU: Maybe you could -- maybe you could put your question

21 in another way.

22 MR. WEINER:

23 Q. Of the HVO soldiers that you knew in your village and in the

24 Uzdol area, had you ever heard them yell "Allahu Akbar" in September of

25 1993?

1 A. No.

2 MR. WEINER: Thank you.

3 JUDGE LIU: Well, at this stage are there any documents to

4 tender?

5 MR. METTRAUX: No. I believe that all of ours are in. Thank

6 you.

7 JUDGE LIU: Thank you.

8 MR. WEINER: All have been tendered, Your Honour.

9 JUDGE LIU: Thank you.

10 Well, Witness, thank you very much indeed for coming to The Hague

11 to give your evidence. When we break, Madam Usher will show you out of

12 the courtroom. We all wish you a very, very pleasant jury back home.

13 THE WITNESS: [Interpretation] Thank you.

14 JUDGE LIU: Well, we only have about eight minutes left, so I

15 don't think we have enough time to deal with those matters and the -- and

16 I believe we have to resume at 2.15, and it will not last very long.

17 So the hearing is adjourned.

18 --- Luncheon recess taken at 11.51 a.m.

19 --- On resuming at 2.15 p.m.

20 JUDGE LIU: Good afternoon, ladies and gentlemen. This is a

21 continuation of this morning's proceedings. And in the morning we don't

22 have time to deal with the procedural matters, but now I believe we have

23 too much time to deal with it. Mr. Morrissey made a submission this

24 morning and I believe that we'll give the floor to Mr. Morrissey first.

25 MR. MORRISSEY: Thanks, Your Honour. There's four issues that

1 can be dealt with. They may be really fact-finding episodes now.

2 First of all, the issue of the Karic deposition. The Prosecution

3 are considering their position about that. I presume that at some stage

4 they'll submit a response. But two issues have to be determined about

5 that. The first is: When should that deposition be played to the Court.

6 And the next is that: Should the Tribunal rule in the Defence's favour

7 and allow some limited further cross-examination of this man. Have steps

8 been taken to put that into place?

9 Now, as to the issue of when to play that deposition, it seemed

10 to me that next week may be an opportunity to do that, because if we

11 finish Mr. Karavelic within time, which we will do, of course, we may

12 then have time for the pathologist, if the Prosecution are able to get

13 the pathologist there, and of course that's their management issue; I'm

14 not interfering with it. We may find ourselves with a bit of time next

15 week and it may be then that it's appropriate to play the Karic

16 deposition at that time. I raise it now as a possibility. I don't

17 insist on it, but it may be a useful time to do it.

18 What I do ask is the video -- that steps be taken to make a

19 videolink available for Mr. Karic so in case Your Honours rule in favour

20 of the Defence, that can be done. We don't know what his medical

21 condition is. We've indicated a motion that the Defence team took the

22 step of speaking to him to see whether he was -- with it, frankly to see

23 whether he was able to talk and give sensible evidence. We're not

24 doctors, but we formed the view that it is worth persisting with this

25 request, and we do persist with it. That's why we saw him. But I can't

1 give any medical opinion about him.

2 Whatever his situation may be, the deposition was taken in case

3 he took a turn for the worse and wasn't around. Therefore, speed is of

4 the essence. In my submission, that ought to be booked straightaway. If

5 Your Honours rule against us, it can be debooked. But we don't want a

6 situation to develop where the Prosecution give you a good outline of

7 argument; you then consider the situation and you then decide in your

8 favour; and then we have to wait weeks after that. So it should be done

9 immediately, in my submission.

10 AnLed really, that's the first thing I want to raise about Karic.

11 But I can go through all of my matters, but it's a matter for the Court

12 whether they want to here --

13 JUDGE LIU: Yes, let's deal with those items one by one.

14 MR. MORRISSEY: As to the Ramiz Delalic issue --

15 JUDGE LIU: Well, I think we should hear the response.

16 MR. MORRISSEY: I'm sorry.

17 JUDGE LIU: We'll deal with those matters one by one.

18 MR. MORRISSEY: I misunderstood.

19 JUDGE LIU: Any response from the Prosecution or anything new

20 that the Prosecution would like to add?

21 MR. RE: There is a response, Your Honour. We have a microphone

22 not working at the back here, so I apologise if you can't all see me when

23 I'm addressing you. The Prosecution -- we have of course received the

24 additional -- the supplementary submissions regarding Mr. Karic's

25 depositions. We will of course -- we will respond to this fairly

1 promptly. I think we received it yesterday or on Wednesday afternoon.

2 The -- much of it of course merely repeats the arguments which learned

3 counsel, Mr. Morrissey, made when we argued -- when this was argued I

4 think last week.

5 When we argued it last week, our response was that if the

6 depositions, if the Trial Chamber admits them, do not need to be played.

7 There's no -- it's not a matter which the Trial Chamber needs to play as

8 such in court time. I raise the precedent of the Simic case in which the

9 Trial Chamber just admitted them into evidence, not even as an exhibit,

10 but admitted them in and admitted the transcript. Because it's sworn

11 evidence so it just becomes part of the trial proceedings. And then in

12 the Simic judgement they refer at various parts to the trial transcript

13 and at various parts to the deposition, Rule 71 transcript, which of

14 course has a different page numbering.

15 So in the Prosecution's submission, there's no need at all to

16 even consider playing them in valuable court time. If the Trial Chamber

17 wishes to view them, the Trial Chamber, in our submission, can do so. Of

18 course it's a matter for Your Honours, but it would be a much better use

19 of trial time, in our respectful submission, to do so out of court, and

20 there's not anything on them Your Honours can't glean from reading them.

21 So your first submission or response is: If they're admitted

22 they should be admitted and become part of the trial record. In relation

23 to the videolink, of course we support the application. We've already

24 made our position clear that in Mr. Karic -- and we have contacted him

25 and the Defence motion says so. He considers himself fit, according to

1 our information, to give evidence, although reluctantly, via videolink.

2 If the Trial Chamber rules that further evidence should be taken from him

3 -- and I note in their supplementary submissions the Defence have

4 referred to the fact that he is not on our witness list, but that is of

5 no relevance, we submit, because it's a deposition. He's not a witness;

6 it's a deposition evidence taken before.

7 So our submission is if you accede to that request, yes of course

8 the videolink should be booked, and as soon as possible, and obviously in

9 those two weeks in May in which the trial would sit. Of course, that's a

10 matter for the Trial Chamber.

11 I think those are the only two issues Mr. Morrissey raised,

12 unless there's another issue you want to me to respond on.

13 JUDGE LIU: I have a question for you, Mr. Re. Are you going to

14 submit to us a written submission or are we going to take your oral

15 submission as it is?

16 MR. RE: In response to the --

17 JUDGE LIU: Yes.

18 MR. RE: -- this? Your Honours excuse me for one moment?

19 JUDGE LIU: Of course.

20 MR. RE: It's really a matter of resources at the moment.

21 JUDGE LIU: Yeah, of course.

22 MR. RE: We prefer to do it orally, but the Defence has raised

23 some issues about the admissibility of some of the exhibits which were --

24 which were "tendered" or attempted to be tendered in the deposition

25 hearing. That's not a matter I can deal with on the spot now. If Your

1 Honours admit the deposition in, subject to further examination or not,

2 it may be appropriate to hear oral argument on the admissibility of each

3 of the -- there's not many, maybe half a dozen exhibits which were put

4 forward at the time. The submission only says it in a blanket fashion,

5 submits they shouldn't go it. In our submission, it's something that

6 should be argued exhibit by exhibit, and the appropriate time would be

7 when the Trial Chamber makes its decision. The deposition is one thing;

8 the exhibits that are put to the witness during the deposition are

9 another.

10 JUDGE LIU: So you mean that you are going do respond in written

11 form?

12 MR. RE: We'd prefer not to. I'm suggesting if we could do it

13 orally at the time when Your Honours rule on it and the Defence could

14 orally respond exhibit by exhibit, as you do with any other exhibits in

15 the trial.

16 JUDGE LIU: Yes, thank you very much.

17 Well, on this matter I believe that we are not in the position to

18 make the ruling now, however we realise that it becomes a bit of an

19 urgent matter. And we'll take into consideration of the submissions of

20 both parties of this very issue, and we'll give our oral decision on this

21 matter next week.

22 And as for the videolink arrangements, I'm afraid that we

23 couldn't do anything before any rulings on this issue.

24 MR. MORRISSEY: As the Court please.

25 JUDGE LIU: Yes.

1 MR. MORRISSEY: I understand that, Your Honour. There is just

2 one matter I have to add now. My learned friend raised the issue of

3 whether you should play the deposition in open court. I believe you have

4 to play it in open court. There's no basis for not doing it. In any

5 event, if you have any discretion about that, I would be submitting that

6 of course you would have to look at it and see it. This is a public

7 trial in a public place. No protective measures are being sought by that

8 witness. And really you'll be faced with a bit of a choice between the

9 evidence of -- well a number of witnesses including Mr. Karic on one hand

10 and the evidence of Witness D on the other. Your Honours may remember

11 Witness D, I don't know if you do. But I would be very much concerned

12 that you have the chance to see Mr. Karic and see him, and then remember

13 Witness D, and see him, because that will help you to decide which one

14 you accept. So wbles you do need to see that person giving his evidence

15 and that's an important matter. Your Honours I'll move --

16 MR. RE: Could I just very briefly --

17 JUDGE LIU: Yes.

18 MR. RE: In relation to that, could the record please reflect

19 that the depositions were actually taken in open session. They were

20 publicly taken. They were not taken in private session before Ms.

21 Featherstone, the presiding officer. So they had been taken publicly

22 played during the proceedings. I think they went for some three days.

23 So you have to bear in mind that it's three days of court time to watch

24 them again.

25 JUDGE LIU: Yes, whether we have to play that deposition or not

1 in the courtroom, I believe that we have to rely on the Rules of

2 Procedure as well as the past practice of this Tribunal. And we'll deal

3 with this matter all together in our ruling on this particular issue.

4 MR. MORRISSEY: As it is Tribunal pleases.

5 Now, I move on to the next matter and that concerns Ramiz Delalic

6 and I just ask that we go into the private session on this matter,

7 please.

8 JUDGE LIU: Yes, we'll go to the private session.

9 [Private session]

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15 [Open session]

16 MR. MORRISSEY: Yes -- oh, sorry, pardon me. Well, Your Honours,

17 the time has come for the Prosecutors to tell us through which witness,

18 if any, and when the Prosecution are proposing to lead this piece of

19 evidence. And it's now also a scheduling matter for us to determine and

20 for you, the Tribunal, also to determine when you would like to hear

21 argument on this topic.

22 JUDGE LIU: Yes, I believe the last time the OTP promised me that

23 they would file something in this aspect in written form.

24 MR. RE: I'm not sure we promised to file something. I thought

25 we were to report back or at the end of the week to inform the Trial

1 Chamber as to what our plans were.

2 JUDGE LIU: Yes, are you in the position to inform us about your

3 plan?

4 MR. RE: Certainly.

5 JUDGE LIU: Yes, of course.

6 MR. RE: We intend, as I notified the Trial Chamber I think it

7 was earlier this week, to attempt to tender the statement into evidence

8 during the next suitable break of the proceedings, next week after Mr.

9 Karavelic evidence, would from the Prosecution's view, be a suitable time

10 to argue the point, subject of course to the convenience of the Trial

11 Chamber. We don't plan to call the witness to tender it. Our witness

12 will be in the argument that consistent with Tribunal jurisprudence. A

13 statement - I specifically refer to the Kvocka case - a statement made to

14 the Office of the Prosecutor ostensibly in accordance with the Rules is a

15 prime facie admissible document. And if the Defence wish to challenge

16 it, they are certainly entitled to do so. And once the Trial Chamber is

17 satisfied prime facie it is an admissible document taken in accordance

18 with the Rules, the Defence has a burden of persuasion to persuade the

19 Trial Chamber that it should not be admitted.

20 And what the Defence seem to have submitted, in our submission

21 they would have to call some evidence on the point, from either Mr.

22 Balijagic, former counsel, or the accused Mr. Halilovic himself. Because

23 the suggestion appears to be - and it's only been made in a motion, not

24 orally, and certainly before the trial, as it should hvae been - that Mr.

25 Halilovic was "induced" by something that his counsel said to him. Now,

1 if that's the situation, it's incumbent upon the Defence to call counsel

2 for Mr. Halilovic to explain the circumstances of why he made a statement

3 to the OTP in the presence of his lawyer, in accordance with the Rules,

4 during which he was cautioned and advised of his rights on a number of

5 occasions over the period in which the interview was conducted.

6 So our submission is it that we are prepared to argue the matter

7 properly. We haven't received a motion from the Defence about the

8 tendering of record of interview or the statement, and we will do that at

9 the next convenient moment for the Trial Chamber, and we suggest probably

10 at the end of Mr. Karavelic's evidence to give the Defence time to put on

11 their motion.

12 JUDGE LIU: Thank you.

13 Yes, Mr. Morrissey.

14 MR. MORRISSEY: Well, Your Honours, on the following occasions

15 there have been letters to the Prosecution asking what they propose to do

16 now, 7th of February, 20th of February, 27th of February, 11th of March,

17 30th of March. Now, the Prosecutor here is plainly and clearly playing

18 games and playing the clock.

19 Now that we've got an indication from them that they are not

20 proposing to call a witness or to lead it through a witness but are

21 proposing to seek that it be tendered without any such testing, the

22 Defence will in fact move a motion saying that we object to that being

23 done. We will do so in writing.

24 Now, we'll indicate that there's the possibility of calling

25 evidence. My friend has mentioned two people. There could be two more.

1 First of all, the investigator Nikolai Mikhailov, we received a letter

2 from him saying that he refused to meet with the Defence. So an issue

3 does not arise about him. The other one is Madame del Ponte, with

4 respect to whom there were discussions then-counsel Mr. Balijagic

5 concerning this interview and she may be a witness who is called.

6 Now, if learned friend wishes to mention that there be some

7 burden on the Defence, he has to remember this: The onus is on the

8 Prosecution to prove voluntariness. If they don't want to call evidence,

9 they're doomed. So it's a matter for the Prosecutor to determine what he

10 wants to do and they want to do generally. Frankly, there may be

11 evidence called here and if there is, we'll need to set aside some time

12 for it. That's why at the start of this I said we need to work out the

13 schedule. Now, that's a matter that I'm in the Tribunal's hands about.

14 We'll meet the convenience of the Tribunal about that. And I think at

15 the end of the evidence of Mr. Karavelic there might not be a lot of

16 time, certainly not enough time to hear all the evidence that might be

17 called. But it may be if no one calls any evidence, we would have time

18 to put the arguments.

19 I indicate now that since the Prosecution has been good enough to

20 respond and tell us what his proposed times are, we're going to file a

21 motion objecting to it. That's where the matter now stands. We'll file

22 that. The Prosecution can respond. The question of whether parties want

23 to call evidence or not can be dealt with in a proper way at that way.

24 So could I ask now that the Court give some thought, the Tribunal

25 give some thought to when that should take place.

1 JUDGE LIU: Well, at this stage I believe that we have to read

2 your submissions in written forms because we also have some problems with

3 this kind of practice, as I mentioned before. According to our Rules

4 there are several ways to admit documents into the evidence. That may be

5 the live witness, we hear him, and through him we admit that document;

6 the other way is the 92 bis, 94, the judicial notice, as well as 89 (C)

7 and (F), which is within the discretion of this Bench. But this

8 statement is different with others; this is the accused's himself

9 interview. So we decided to approach it in a very careful way and do not

10 be hasty to jump to conclusions at this stage.

11 And the Prosecution is also welcome to submit a response on this

12 issue so that we could be in a better position to assess the situation

13 and to make our ruling. Anyway, since the Prosecution case is

14 approaching to the end, I hope both parties will make the best use of the

15 time available and submit to the Chamber as early as possible any

16 comments, views, and response in time.

17 MR. MORRISSEY: That will be done, Your Honour.

18 JUDGE LIU: Yes.

19 MR. RE: The Prosecution will most certainly do that. There are

20 two things I just wish to briefly raise. The first is: My learned

21 colleague, Mr. Morrissey, accused the Prosecution of "playing games" and

22 playing the clock. Now, I don't want to get into sniping here; this is

23 unnecessary. We are not playing games. The interview has always been on

24 our exhibit list and we have never had a witness there you could

25 logically link the tender of interview evidence through. It is clear

1 that we have always intended to tender at some point, in the same was as

2 records of interview in other cases interviews have been tendered, such

3 as the Omarska and the Simic case. I was involved in both of those.

4 They were both tendered from the bar table in those two cases. As an

5 advance submission, I refer Your Honours -- and the Defence, of course --

6 to the Kvocka appeal judgement of the 28th of February, 2005, paragraphs

7 121 to 129, at which the very issue of tendering such at statement was

8 discussed and an appeal against the tender was dismissed by the Appeals

9 Chamber ruling, as Your Honour the Presiding Judge has just alluded to,

10 that an interview with the accused falls into a very different category.

11 At the moment I'm attempting to -- or attempting to ascertain the

12 exact situation in every other trial here, but I suspect from my own

13 experience that in most of them they've been tendered without a tendering

14 witness.

15 JUDGE LIU: Well, thank you very much. I think we'll do our own

16 assessment at a later stage when we receive the filings from the parties.

17 And of course both parties should regard the other party's activities in

18 the face of the bona fide, unless there's preponderance of the evidence

19 to show otherwise.

20 MR. MORRISSEY: Of course, Your Honour.

21 Your Honour, the final matter that I would want to raise is the

22 question of certain intercepts. We have flagged in the past an intention

23 to oppose the admission into evidence of some intercepted telephone -- or

24 some transcripts of telephone intercepts. And again, we want to make

25 sure that the argument concerning those intercepts occurs at an

1 appropriate time so that this is really a scheduling matter now. And

2 although the Prosecution can say whatever they like, I'm not seeking to

3 put them to their proof or to elicit an argument about it right now. But

4 there are a couple of matters I would like to raise in connection with

5 that.

6 The first is we get an indication from the Prosecutor which

7 witness is going to be the witness they wish to tender these transcripts

8 through. I suspect that it may come to be Mr. Mujezinovic, but we just

9 need that to be confirmed. Then we need to decide the timing of the

10 argument in respect of that. We've got a motion that's half-drafted I

11 suppose is the best way to put that. But we'll deal with that as soon as

12 we can, as soon as it's appropriate to do it. We don't really want to

13 just flood the Prosecution and the Chamber with motions all at once; it's

14 not really fair to anyone, and therefore we just want to get an idea of

15 when it's likely this matter would arise and when it would be appropriate

16 to run the argument. So the Prosecutor might give us their thoughts

17 about it and we can decide when it would be.

18 There is one matter that arises. After the time that I flagged

19 that there would be argument about that, the Prosecutor -- well, perhaps,

20 Your Honours, could we just move into the private session for a minute,

21 please?

22 JUDGE LIU: Yes, we'll go into private session. So you mean you

23 shook the tree again and something fell?

24 MR. MORRISSEY: Well, Your Honour, what fell on our heads this

25 time was a CD with --

1 JUDGE LIU: Well, well, we'll go into private session.

2 MR. MORRISSEY: I thought we were there.

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22 [Open session]

23 JUDGE LIU: Now we are in open session.

24 MR. MORRISSEY: Your Honours, my learned friend Mr. Mettraux has

25 a number of other shorter matters today which today is probably a good

1 time to raise those.

2 JUDGE LIU: Yes.

3 MR. METTRAUX: Good afternoon, Your Honour, I will be very, very

4 short, indeed. The other two matters which we would like to add at that

5 stage. The first one is a tape played in the course of this week. This

6 is Exhibit P312. You will remember on the document that was tendered,

7 the CD which was tendered by the Prosecution, a part of the tape was

8 actually missing. And we would like at the least the support of the

9 Trial Chamber to put a request to CLSS for the transcript of the -- the

10 transcript tendered by the Prosecution to be very fat, as we have spotted

11 a number of problems, including the missing part that we've identified in

12 court. We simply would like the support of the Trial Chamber in that

13 regard, as we have encountered a number of difficulties with CLSS. Not

14 that we should blame them for anything, but they have quite an extensive

15 list of outstanding matters to deal with. But if that could be given

16 some sort of priority, we would be grateful.

17 The second matter which we wanted to bring to the attention of

18 the Trial Chamber is simply to flag this issue for the Trial Chamber. My

19 colleague Mr. Morrissey has mentioned a number of them, but there is a

20 number of outstanding letters which we've sent to the Prosecution in the

21 past few months and weeks and we are having some difficulties receiving

22 answers in relation to some of those matters. And as I mentioned

23 earlier, we will have some further discussions at some stage, but we

24 would like to indicate at this stage that rather than filing motions

25 after motions, which we also consider is unnecessary, those matters can

1 be dealt with outside of court. But we have encountered some

2 difficulties in that respect.

3 JUDGE LIU: Thank you very much.

4 As for the matter concerning of the CLSS, I believe that we'll

5 entrust the registrar to inform them to make our request as the priority

6 one. But I cannot guarantee. I will do my best to help both parties

7 concerning all those matters.

8 It is a very good practice for the parties to meet together to

9 discuss the matters and try to solve it out of the courtroom. I think

10 only if there's some major problem that they could not solve out of court

11 should those matters be brought to the attention of the Bench, and the

12 Bench will do its best to help to solve this problem.

13 Yes. As for next week's schedule, we have already said that at

14 least we have two witnesses on our list. We might have extra sittings

15 and try to finish the third one, but at this moment I could not guarantee

16 that. The parties will be informed at the beginning of the next week,

17 maybe Monday, to see whether if we could have extra sittings. Because of

18 the e-court system because there are so many cases going on

19 simultaneously, there are some difficulties, but we'll do our best to

20 finish as many witnesses as possible. This is what I would say at this

21 stage.

22 Well, I think that's all for today's hearing, and we wish

23 everybody a happy weekend. The hearing is adjourned.

24 --- Whereupon the hearing adjourned at 3.01 p.m.,

25 to be reconvened on Monday, the 18th day of

1 April, 2005, at 9.00 a.m.

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