1 Friday, 25th February 2000
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.40 a.m.
6 THE REGISTRAR: Good morning, Your Honours.
7 Case number IT-95-14/2-T. The Prosecutor versus Dario
8 Kordic and Mario Cerkez.
9 JUDGE MAY: Let the witness take the
11 THE WITNESS: I solemnly declare that I will
12 speak the truth, the whole truth, and nothing but the
14 WITNESS: ALHAJI DIMITRIJE KAMARA
15 Examined by Mr. Nice:
16 Q. Can you tell us, please, your full name?
17 A. My full name is Alhaji Dimitrije Kamara.
18 Q. You work here in the Office of the Prosecutor
19 as a language assistant.
20 A. No. I work as a translator.
21 Q. Translator. Sorry. Born where?
22 A. I was born in Belgrade, Yugoslavia.
23 Q. And then I think you spent several years away
24 and returned to Yugoslavia to complete your education
25 when you were what age?
1 A. When I was 15.
2 Q. You are, therefore, fluent in what's now
3 called B/C/S, but which can be called by various names,
4 but it's the language of the area.
5 A. Definitely so.
6 Q. Working here as a translator, did you have
7 dealings with two tapes of conversations between people
8 on telephones?
9 A. Yes, I had.
10 Q. The first tape, 2801.1, produced by a witness
11 and then to the Chamber via investigators and one of
12 the lawyers on the team, that was originally translated
13 by the official translation department of this
14 institution; is that correct?
15 A. That is correct, yes.
16 Q. Subsequently, the witness produced another
17 tape which he brought with him to the institution,
18 2801.4, and were you, as notified to the Chamber,
19 sitting in court when the first track, or the first
20 conversation of that tape was played to the Chamber?
21 A. I was.
22 Q. And as was explained to the Chamber, were you
23 there following what you could hear on the then only
24 official translation?
25 A. That is correct, yes.
1 Q. The Chamber decided that the exercise of
2 listening to the whole of the tape was unrealistic,
3 given the problem suffered understandably by the
4 simultaneous translators -- interpreters, and the
5 matter was adjourned, that further inquiries should be
6 made; is that correct?
7 A. That is correct.
8 Q. Have you since then done two things in
9 relation to these two tapes? First, did you listen to
10 both tapes with the original translation to hand to
11 check if the tapes were identical in content or not?
12 A. I did.
13 Q. By that method, what was the result that you
15 A. There was no doubt in my mind that both of
16 the tapes are exactly the same.
17 MR. NICE: Your Honour, incidentally, this
18 morning, I hope not too late, I alerted -- probably too
19 late, I alerted Ms. Featherstone by telephone to the
20 desirability of bringing those earlier transcripts in
21 with you, and I don't know if you've got them with you
22 or not.
23 JUDGE MAY: I have mine, yes.
24 MR. NICE: As I recall, as I went through
25 that tape with you, I attempted to annotate it as to
1 where the numbered conversations began and ended, and
2 since there's been an addition to the transcript, it
3 may be that the Chamber would want to have the earlier
4 versions with it.
5 Q. Mr. Kamara, did you thereafter become
6 involved to a limited degree in the negotiations, or
7 attempted negotiations, between the lawyers, sitting in
8 on certainly one meeting with Mr. Stein and
9 Mr. Lopez-Terres?
10 A. Yes, and there was also an interpreter from
11 the Defence present.
12 Q. And I think on that occasion, you did
13 listen -- all of you listened to all or part of one or
14 both of the tapes?
15 A. We did, yes.
16 Q. On that occasion, were you able to hear on a
17 tape some sounds that have been referred to as being on
18 one tape but not on the other?
19 A. I remember hearing a sound, yes.
20 Q. Had you noticed those sounds when you had
21 listened to either tape before?
22 A. I had not, no.
23 Q. But following that, was it apparent to you
24 that there was the possibility for further
25 clarification of one passage of the tape which you
1 judged to have been incompletely translated?
2 A. Yes, there was a portion of the tape that had
3 not been fully transcribed. It was written as "not
4 clear" or something like that, but there was a part
5 that could be made out, yes.
6 Q. Did you then translate that additional
7 passage of the tape?
8 A. I did. I transcribed it into B/C/S first and
9 then translated it into English.
10 Q. Right.
11 MR. NICE: Now, the Court, I hope, has the
12 additional transcripts that were provided. And what
13 may be helpful, it would be simply and swiftly to run
14 through the start and the stop points of the
15 conversations on the new version -- right. Thank you
16 very much.
17 The new version is 2801.A, with serial number
18 913915 on the first page, and if that can go to the
19 witness. Everybody else has already had these
21 So can I hand that --
22 THE INTERPRETER: Excuse me. The
23 interpreters do not have either of the versions by
24 now. Could we please have some?
25 JUDGE MAY: The interpreters do not have the
1 new version.
2 MR. NICE: That's very much my failing.
3 Yes. When I come to the relevant passage, I'll ask the
4 witness to put it on the ELMO.
5 The Chamber will recall that because of the
6 initial interest in the very first conversation between
7 Kordic and Blaskic, which was the first conversation
8 transcribed, that conversation is a separate small
9 transcription and there has been no need to change
10 that. Therefore, we pick up on this document, 2801.A
11 at what is and was originally notated at conversation
12 number 2.
13 Q. So that running through this latest document,
14 for the avoidance of any doubt, if we start at the top
15 of what is page 1 of this exhibit, Mr. Kamara, is that
16 conversation 2, and it starts at the top of page 1 and
17 it runs on to six lines down to page 2?
18 A. Yes.
19 Q. So conversation 3 begins at line 8 of page 2
20 and runs on to line 17 of page 3?
21 A. Yes. Line 16 of page 3.
22 Q. Line 16. So line 18 is the beginning of
23 conversation 4. That conversation goes over to page 5,
24 and line 1 of page 5 has the end of that conversation
25 with Blaskic saying, "Bye," and line 3, that's the
1 giving of conversation number 5.
2 A. Yes.
3 Q. Conversation number 5 runs through to
4 page 10, where it ends at line 14. Conversation 6,
5 picking up at line 16.
6 A. Yes.
7 Q. That conversation ends, I think, at the foot
8 of page 10, and at the top of page 11 we have the
9 beginning at line 2 of conversation 7.
10 A. Correct.
11 Q. That ends at the foot of page 11, and
12 conversation 8 begins at the top of page 12. Slightly
13 ambiguous in that the very first line on page 12 says
14 "Bye," "Hello," but in any event, there's a new
15 conversation there.
16 A. Yes.
17 Q. Conversation 8 goes on some two and a half
18 pages to page 14, where it ends at line 8, with
19 conversation 9 beginning at line 10.
20 A. Yes.
21 Q. Conversation 10 goes on to page 18 -- it's a
22 longer conversation -- ending at line 25.
23 A. Yes.
24 Q. And conversation 10 beginning at line 17 --
1 A. Line 27, yes.
2 Q. All right. We're now in the territory of the
3 passage of the tape which you found it could be better
4 dealt with. We may not be quite there yet but we're
5 getting there. Is that right?
6 A. Yes.
7 Q. Now, if we just compare -- if I just compare
8 this. At page 18, which we're on at the moment, line
9 27, that's the beginning of conversation 10, and it
10 goes over, as we see, to page 19, and to something that
11 then says "Side B." Then from side B we go on for a
12 little bit.
13 Was there anything else on side A that needed
14 adding to or is the balance of side A correct as
15 originally --
16 A. The balance is correct, yes.
17 Q. Right. But we can see that conversation 10
18 begins at line 27, and that that side of the tape ends
19 at line 5 on page 19. Was that one conversation at
20 that stage or more or can't you say?
21 A. It was. It was one conversation. The line
22 and -- it was a very poor tape. The quality was very
23 poor, but I think I can say, yes, that it was one
25 Q. Then on page 19, when we change sides, and
1 the first thing transcribed is that, "The line is very
2 bad," were you able to form a view on whether this was
3 the continuation of the conversation or not?
4 A. It was impossible to say because of the
5 quality of the tape.
6 Q. Right. But whatever was being said at the
7 beginning of side B, it appeared to end at line 24?
8 A. Yes. It ended at line 24.
9 Q. Right. So that what starts at line 26 is a
10 new conversation, and depending on whether the first
11 bit is counted as its own conversation or part of the
12 previous conversation, then this, at line 26, is either
13 number 1 or number 2 by way of fresh conversations on
14 this side. Is that fair?
15 A. Exactly.
16 Q. In the original transcription, how much had
17 been found of this?
18 A. I think only four lines had been transcribed
19 in the original transcription.
20 Q. And this was, on page 19 of the earlier
21 transcription, marked as "inaudible"; is that correct?
22 A. That's correct.
23 Q. And you, by listening what, once or more than
25 A. Well, twice. The first time at the meeting
1 with the Defence counsel and the second time by myself.
2 Q. And you were able to decipher how many lines
3 that we see on page 19 as fresh lines of transcription
4 and translation?
5 A. From number 7 to number 24, and from
6 number 26 to number 7 on page 20.
7 Q. Those, therefore, reveal something of a
8 conversation, whether from the previous side or not,
9 from line 6 to line 24, and then from line 26,
10 conversation 1 or 2, however we describe it, of this
11 tape, going over to line 7 on page 20?
12 A. Exactly.
13 Q. Is there then a break in the conversation so
14 that what starts at line 9 is conversation 2 or
15 conversation 3, however described, of that tape?
16 A. Exactly.
17 Q. Then in accordance with the earlier
18 transcription, that conversation goes over to page 26,
19 where we have the end of that conversation at line 6,
20 and it picks up at line 8 with the next conversation,
21 which can be numbered 3 or 4. That conversation goes
22 over to page 31, where at line 32 the conversation
23 ends, and at line 34, we have the start of what is
24 either conversation 4 or 5. Correct?
25 A. Yes. Correct.
1 Q. That takes us to the end of the tape. Sorry,
2 I said I was going to put that on the ELMO. I didn't
3 and I should have done.
4 This reveals, for those who also have the
5 index on the tape box, some difficulty in understanding
6 exactly what happens as between the end of side A and
7 side B, the author of the index having got to 11
8 conversations on side A and 3 conversations on side B.
10 A. Yes.
11 Q. But as you've explained, save by careful
12 listening, it plainly wasn't possible for the official
13 translators to decipher a whole conversation although
14 there was one there?
15 A. Exactly.
16 Q. What you discovered by the additional careful
17 listening, does that affect at all your decision that
18 the two tapes are identical in content?
19 A. No. The two tapes are identical in content.
20 Q. Thank you very much. You may be asked some
21 further questions.
22 MR. SAYERS: Mr. President, let me just
23 object to this witness being put on because we have not
24 had the two weeks' notice that was required by the
25 Scheduling Order entered earlier on in this case. In
1 fact, we've had about one day's notice. But I just
2 want the objection to be stated for the record, I'm not
3 going to belabour the point, and I'll do my best to
4 cross-examine in short order.
5 JUDGE MAY: Well, if there's any matter which
6 you say is a cause of prejudice to you, you can draw it
7 to our attention.
8 MR. SAYERS: Thank you.
9 Cross-examined by Mr. Sayers:
10 Q. Now, Mr. Kamara, there's no question in your
11 mind, I take it, therefore, that there are not 11
12 conversations on side A of this tape, there are
13 actually 10?
14 A. Yes.
15 Q. All right. And equally, there's no question
16 that there are not three conversations on side B of the
17 tape, but, depending on how you count the first one,
18 there are either four or five, aren't there?
19 A. Yes.
20 Q. You are not a tape-quality expert or a
21 technical expert with respect to the actual process of
22 recordation or anything like that, technical aspects of
23 tape-recording; is that fair to say?
24 A. It is, yes.
25 Q. You are simply a translator. I don't mean to
1 belittle your position, but you are a translator, a
2 language expert, rather than a technical expert;
4 A. I'm a translator, yes.
5 Q. And there was no question in your mind that
6 you could see significant differences in the tape
7 quality between the various conversations on tape side
8 A and tape side B; isn't that correct?
9 A. That is correct, yes.
10 Q. You have no explanation for the variation in
11 that quality, do you?
12 A. No.
13 Q. And you're saying, sir, that when you
14 listened to the taped conversation that I think gave
15 the initial translators difficulty, and forgive me
16 while I just flip through this on my feet here, but I
17 believe this was on page 19, is that correct, page 19
18 of the exhibit that you have in front of you.
19 A. Page 19, yes.
20 Q. Side B. The original translators who heard
21 that could not translate it, could they? They said
22 that the tape quality was so poor that the conversation
23 there was basically inaudible; isn't that right?
24 A. Well, first of all, I would like to say that
25 the original tape was most probably done by a language
1 assistant, because language assistants are the ones who
2 transcribe tapes into B/C/S, and these are translated
3 by translators into English. And whether the tape
4 quality was so poor or whether it was due to human
5 error, I wouldn't be able to say at this moment.
6 Q. You don't know whether it was done by a
7 language assistant or a translator, do you?
8 A. I can assume because, as I said --
9 Q. But you don't know, do you, sir?
10 A. No.
11 Q. But at all events, whether it was a language
12 assistant or a translator, they were employees of the
13 Office of the Prosecutor, weren't they?
14 A. Definitely.
15 Q. Definitely. And --
16 MR. NICE: That needs correcting, of course.
17 As I'm sure Mr. Sayers will recall, the interpreters
18 who work here work for the institution as a whole.
19 JUDGE MAY: Yes. Be careful, Mr. Sayers.
20 You must be accurate.
21 MR. SAYERS: I apologise for that, Your
22 Honour. That was my mistake.
23 Q. But the point is, sir, that the first
24 translators that worked for the institution couldn't
25 hear it, but you say you could, right, and hear it
1 sufficiently well to be able to translate it.
2 A. Well, I wouldn't say that they couldn't hear
3 it. They might have heard it but deemed that it was of
4 very poor quality and not of any significance.
5 MR. SAYERS: Thank you, Mr. President. I
6 have no other questions.
7 MR. NICE: Only one thing arising, or two
8 things arising.
9 JUDGE MAY: Just a moment.
10 MR. NICE: I'm so sorry.
11 JUDGE MAY: Mr. Kovacic, I take it you've got
12 no questions.
13 MR. KOVACIC: No, sir, we don't. Thank you.
14 MR. NICE: I'm sorry.
15 Re-examined by Mr. Nice:
16 Q. The difference in quality, are you able to
17 say whether that's a difference in the tape quality or
18 a difference in the quality of the sound that was being
20 A. The difference in tape quality.
21 Q. Why do you say that? Because we have lots of
22 references in the conversation to people saying there
23 was a poor line, and matters of that sort.
24 A. Yes, the line was very bad. The line itself
25 was very bad.
1 Q. Right. So what are you saying? You're not
2 an expert, but what are you saying about the tape
4 A. It depends on the very tape -- because these
5 tapes were recorded on maybe two different machines, or
6 the same machine, and the head could have been dirty,
7 or something like that, and that could have affected
8 the quality. But that's just an assumption of mine.
9 Q. I see. So no expertise, an assumption. And
10 what are you saying about the differences; within parts
11 of each tape that there are differences or between the
12 two tapes?
13 A. No, there are no differences between the
15 Q. Since you've been asked about the difference
16 between language assistants and translators, what is
17 the difference?
18 A. The difference is translators [sic] are
19 general staff, they are G-level staff, and translators
20 are P-level staff, and translators go through much more
21 rigorous testing before being employed.
22 Q. You said translators are general staff. Did
23 you mean --
24 A. Sorry. Language assistants are general
25 staff; translators are professional staff, and they go
1 through much more rigorous testing before being
3 Q. But the policy of the institution in relation
4 to the transcription of tapes generally is that they
5 are transcribed by?
6 A. If the tapes are in B/C/S, then they're
7 translated by language assistants, and then translated
8 by translators into English.
9 Q. Thank you.
10 MR. NICE: Nothing else arising.
11 JUDGE MAY: Mr. Kamara, thank you for
12 coming. That concludes your evidence. You are free to
14 [The witness withdrew]
15 MR. NICE: I was hoping that we might next
16 deal with the outstanding village binders. Mr. Scott
17 and Mr. Lopez-Terres are coming down to deal with that;
18 I hope they'd be here immediately, but that they be
19 here any second, I'm sure.
20 While I'm waiting for them, can I deal with a
21 couple of administrative matters. First, and I don't
22 mind mentioning this in the presence of the defendants,
23 I think today is the return date for the production of
24 materials --
25 JUDGE MAY: Yes.
1 MR. NICE: -- and I'm not sure how we're
2 going to deal with that.
3 JUDGE MAY: Yes. We have it in mind.
4 MR. NICE: Thank you.
5 There is now in place, I think, an
6 arrangement for the taking of videolink evidence from
7 three witnesses next Wednesday. I'm hopeful, indeed,
8 that we can accomplish three witnesses in the single
9 day. It may be necessary, of course, to have a full
10 day, and one's always got to have a certain anxiety
11 about the technical side of things going wrong, because
12 it sometimes breaks down. Obviously, I'll be dealing
13 with witnesses in as compact a way as I can by the
14 production of summaries which they will acknowledge and
15 so on.
16 I'm asked to have in mind at least the
17 possibility that there may be the need, for one reason
18 or another, to extend into Thursday, when it's known
19 that His Honour Judge Robinson wouldn't be available,
20 and I've been asked to at least give consideration to
21 the possibility of the Chamber, if necessary, dealing
22 with that evidence by just two of its members, if there
23 is an accidental spillage over. So I mention it now
24 rather than the matter arising later.
25 Then the only other outstanding matters until
1 we can deal with the village witnesses and exhibits is
2 just to notify you that in relation to the taker of the
3 statement of the deceased witness, we've had a couple
4 of inquiries which we've been able to respond to, and
5 we're going to be told next week if that witness is
6 required, and if not, she won't be called. She's only
7 available on a couple of days next week.
8 I think Mr. Lopez-Terres is in a position to
9 deal with the binder of Novi Travnik, if that would be
11 JUDGE BENNOUNA: Excuse me. What do you mean
12 exactly by "deal with the binder"? That means what?
13 Because I would like to know the l'ordre du jour. The
14 problem of dealing with the binder exactly, what are
15 the questions concerned there?
16 MR. NICE: In each case, we have to be sure
17 that there is agreement about what material is in and
18 is not being objected to in the binder, because the
19 binder then becomes part of the record of the hearing,
20 that's all, and it's better for these things to be
21 dealt with --
22 JUDGE MAY: The binders should be in court.
23 Are they in front of us? Perhaps Judge Bennouna would
24 like one.
25 Mr. Lopez-Terres, let's deal with Novi
1 Travnik. I've got the index. There's mention of a
2 report, you haven't included that, obviously; there's
3 the census and the videos, which have already been
4 tendered; the statements, which presumably you're not
5 going to try and argue should be admitted; then we come
6 to the transcripts. Now, you'll have to help. These
7 are the -- I'm looking at number 5, transcripts, these
8 are the Kordic witnesses?
9 MR. LOPEZ-TERRES: [Interpretation] Yes.
10 JUDGE MAY: So they won't be in the binder,
12 MR. LOPEZ-TERRES: [Interpretation] It's an
13 inventory of all the exhibits referring to the facts
14 committed in the municipality of Novi Travnik,
15 including exhibits concerning our case and which are
16 only there as a reminder.
17 JUDGE MAY: Then turning to the exhibits,
18 most have already been tendered --
19 MR. LOPEZ-TERRES: [Interpretation] Under the
20 category, paragraph 6, maps, there is Exhibit 1960 and
21 1962, which, until now, have not been presented to your
22 Chamber, and they do not appear to us to be
23 indispensable, in view of the large number of maps that
24 we have seen, to tender these new maps. They are there
25 simply as part of the inventory because we have tried
1 to be as exhaustive as possible and to identify all
2 those documents.
3 As regards the maps, I think that the Office
4 of the Prosecutor is no longer going to request that
5 they be admitted.
6 On the other hand, regarding Category 7,
7 there are several documents which have still not been
8 admitted. There is 7.1, 7.2.
9 Regarding 7.2, we have the first order,
10 signed by Anto Valenta. We have had no reaction of the
11 Defence regarding their position on this document. The
12 same applies to document 137 a little further on in
13 this paragraph, an ECMM report. Then there is a
14 document relating to Vlado Juric, Exhibit 201. Exhibit
15 241, 243 on which again we have no reaction from the
17 As regards Exhibit 326, we have decided no
18 longer to include it in this document, the more so as
19 the witness mentioned in connection with this exhibit
20 is a witness that we are going to call to testify
21 before you shortly.
22 As regards Exhibit 396, that is also -- no
23 ruling has been made, as well as 577, 1035, 1148, 1208,
24 1151, 1263. We have still not received any comments
25 from the Defence regarding these documents.
1 JUDGE MAY: Yes. Very well. Mr. Sayers,
2 I'll turn to you first. We have, in these binders, on
3 the whole, following the Tulica decision, admitted the
4 exhibits. Is there any reason in this case why we
5 shouldn't follow the same practice?
6 MR. SAYERS: No, Your Honour. I don't
7 understand the comment made by the Prosecution that
8 there's been no reaction from the Defence. I thought
9 that we had provided copies of our objections to the
10 Prosecution with respect to each of these binders in
11 the format that we've regularly used throughout this
12 case, specifying the precise basis of any objection
13 that we do make to particular documents. Naturally,
14 most of them have either been admitted already or a
15 substantial number of them.
16 THE INTERPRETER: Mr. Sayers, could you slow
17 down, please.
18 MR. SAYERS: But there are objections to the
19 following documents, Your Honour -- may I just inquire
20 if our objections have actually been handed up to the
22 JUDGE MAY: No.
23 MR. SAYERS: They have not?
24 JUDGE MAY: We haven't got those.
25 MR. SAYERS: Well, it seems a sensible course
1 to have additional copies of these templates made and
2 distributed to the Trial Chamber.
3 JUDGE MAY: It certainly would be, but let's
4 try to get on so we don't waste any time.
5 MR. SAYERS: I can state the objections very
7 JUDGE MAY: Yes, state them.
8 MR. SAYERS: With respect to Z1960, we had
9 not been provided with that document. With respect to
10 Z2612.2B, we objected to that document because there is
11 no foundation for it and no authentication.
12 With respect to tabs 7.1 through 7.4, these
13 are untranslated documents. We have not received any
14 translations of them, and we are not, frankly, in a
15 position to evaluate whether there would be an
16 objection until we get the translation.
17 With respect to -- and I'll simply say --
18 recite the documents to which we have specific
20 JUDGE MAY: This is Novi Travnik.
21 MR. SAYERS: Yes. The objections that we
22 have are just to a few documents other than this, Your
23 Honour, and I'll just recite the Z numbers. Z2407.1, a
24 lack of authentication; the same thing for Exhibit
25 Z653.1; and the same things for Exhibit Z243, lack of
1 authentication. Exhibit Z345 has been provided to us,
2 and, finally, Exhibit 1208 contains -- we object to
3 that on the grounds of lack of foundation, lack of
4 authentication, and multiple levels of hearsay.
5 With respect to the other documents, as I've
6 said, they're either admitted already or we have no
7 objection to them.
8 JUDGE MAY: Thank you.
9 MR. MIKULICIC: [Interpretation] Your Honours,
10 fully respecting the principled position expressed in
11 your decision on Tulica, the Defence of the second
12 accused in most cases has no objection to the list of
13 exhibits in the index on Novi Travnik.
14 There are a few minor objections such as, for
15 instance, in relation to Exhibit number 1208, where in
16 the Croatian version a part of the text is illegible
17 relating to the Vitez Brigade.
18 As regards the other documents, with a few
19 objections of irrelevance, but, of course, that is for
20 the Trial Chamber to judge, the Defence counsel of the
21 second accused has no objections.
22 JUDGE MAY: Thank you.
23 Mr. Lopez-Terres, is there anything you want
24 to say?
25 THE INTERPRETER: Microphone, please.
1 Microphone. I'm sorry.
2 MR. LOPEZ-TERRES: [Interpretation]
3 Mr. President, you will remember that during the
4 testimony of a witness from Novi Travnik in September
5 last year, we produced a number of documents which were
6 police reports entitled "Official Reports." Those
7 documents were admitted by your Chamber, and the
8 Defence at the time contested their authenticity or
9 validity. I wish to indicate to the Chamber that in
10 the course of last year January, we identified a
11 certain number of people whose names appear on those
12 police reports, and statements were taken from those
13 persons who confirmed the truthfulness of the facts
14 reported in those reports. The statements appearing in
15 the Novi Travnik binder that has been produced to you
16 are, in many cases, the statements of those persons.
17 So we find ourselves in the following
18 situation: We have the official documents of the
19 police authorities in Novi Travnik, indicating the
20 names of the plaintiffs. The Defence contested those
21 documents. We then went on to interview those
22 plaintiffs, but if we produce those statements, we
23 would be violating the Tulica decision.
24 Therefore, unless there is an objection on
25 your part, and I doubt that you will accept those
1 statements as such, but we thought that we would
2 proceed in regard to those persons by the means of
3 affidavits, as we have done quite recently with others,
4 and that is why those statements appear in the binder.
5 We would then be in the second stage of
6 authentication of those reports.
7 [Trial Chamber confers]
8 JUDGE MAY: We can rule on these matters, and
9 we'll rule in the way that we have already. Of course,
10 as I've said, the witness statements are not
11 admissible, as we said in the Tulica decision.
12 Affidavits, of course, will be another matter. We'll
13 consider them when they're produced. As far as the
14 exhibits are concerned, clearly if there are problems
15 about translation and also non-provision, they should
16 be cleared up, but subject to that, we propose to admit
17 the exhibits. We have done it in the past.
18 The objections in terms of lack of
19 authentication and the like goes entirely to the weight
20 to be given to the exhibits, if any, and that's a
21 matter for us when we come to consider the case as a
22 whole, but it does not prevent their being admitted.
23 So we'll admit the exhibits, not the
24 statements or the transcripts.
25 Can we deal with another one now.
1 MR. LOPEZ-TERRES: [Interpretation] I can
2 refer to the binder on the municipality of Vitez, which
3 obviously includes Stari Vitez, which is covered by the
4 same binder.
5 JUDGE MAY: And now have the Defence
6 objections. Perhaps you could just go through it,
7 please, Mr. Lopez-Terres.
8 MR. LOPEZ-TERRES: [Interpretation] First of
9 all, regarding the exhibits, that is, documents,
10 paragraph 10. We have reviewed the various documents
11 from 221 until the next page, and we have noted the
12 positions of the Defence, which are not always
13 unanimous. There are some documents with which
14 Mr. Kordic agrees, others that only Mr. Cerkez agrees
15 with, and vice versa. There are cases when both of the
16 accused agree with the admission of those documents,
17 have no objection, in other words.
18 So we have a list with all those objections
19 noted. I can go through the list, which might take a
20 bit of time.
21 JUDGE BENNOUNA: [Interpretation] Perhaps it
22 would be better to go the other way round; that is, to
23 refer to those that are objected to. That would be
24 quicker. Which are the problems that remain to be
25 addressed by one or other party? I see that there are
1 many cases where it says it is not in the binder. So
2 if you've updated the binder, there's no problem.
3 Perhaps it would be better to focus on substantial
4 objections if there are any.
5 MR. LOPEZ-TERRES: [Interpretation] There
6 seems to be a number of documents on which the Defence
7 of Mr. Cerkez has not stated its position, so we don't
8 know. Is it implicit admission or rejection? For
9 Exhibit 221, for example, 429, 547, the accused Kordic
10 had no objection, but we have no information from the
11 Cerkez Defence.
12 JUDGE MAY: Can we just go through the index
13 so that we can understand fully what is being sought to
14 be admitted.
15 The index begins with paragraph 1, paragraph
16 2, and paragraph 3, referring to various transcripts,
17 and I take it that there's no question of trying to
18 admit those, that you're merely putting that there for
19 the inventory, as you put it.
20 MR. LOPEZ-TERRES: [Interpretation] Indeed,
21 Mr. President.
22 JUDGE MAY: Then we go to 4, and we get to
23 the exhibits, some of which have already been tendered,
24 some not, and again, you have listed those under the
25 locations, and you've distinguished between those which
1 have been tendered and those which haven't. On the
2 second page, the only ones not tendered to start with
3 are some photographs. I can't imagine there's much
4 objection to them. But then there is -- yes. They're
5 all photographs.
6 On the third page, the Vitez exhibits not
7 tendered, again, photographs, a plan, various other
8 matters there.
9 Then we get to the documents which you've
10 listed, many having been tendered, some in the
11 outstanding exhibits which you have noted in each
13 You're asking, Mr. Lopez-Terres, for all
14 these documents to be admitted, those that haven't been
16 MR. LOPEZ-TERRES: [Interpretation] Yes. That
17 is our position, Mr. President.
18 JUDGE MAY: It may be simplest to hear from
19 the Defence next and then we'll call on you again,
20 Mr. Lopez-Terres, to answer.
21 MR. LOPEZ-TERRES: [Interpretation] Once
22 again, many of them have been admitted by both accused,
23 but for some documents, as I have said, we only have
24 the reaction of the accused Kordic and for others we
25 have no reaction at all.
1 JUDGE MAY: Yes. Well, thank you.
2 Mr. Sayers, can we deal, first of all, with
3 the exhibits, as they're called, photographs and
4 plans? Is there any objection to any of them?
5 MR. SAYERS: We have stated objections, Your
6 Honour, to the photographs or some photographs. As you
7 quite correctly point out, if there were -- if we knew
8 what they were of, obviously there would be no
9 objection. It's a little difficult for us to imagine
10 what the probative value of these photographs is when
11 the Court has no idea, for example, with respect to
12 Z2002 on page 2 of the exhibits. Apparently this is a
13 new photograph of a dead body; whose we don't know.
14 When it was taken we do not know. The circumstances
15 under which the person depicted died we don't know.
16 So we've just objected on lack of
17 authentication and lack of foundation grounds, but of
18 course it's for the Court to decide whether that
19 exhibit has any probative value on any point.
20 JUDGE MAY: Let's deal with that
22 There are some of these photographs --
23 Mr. Lopez-Terres, some of these photographs appear not
24 to be in the binder.
25 MR. LOPEZ-TERRES: [Interpretation] Perhaps
1 these are photographs which have already been
2 produced. I think this binder contains all the
3 documents that are outstanding.
4 JUDGE MAY: Well, perhaps that's something
5 you could sort out. Would you look at that over the
6 adjournment and check, make sure either that they've
7 been presented before or that they are available and
8 copies distributed.
9 JUDGE BENNOUNA: [Interpretation]
10 Mr. Lopez-Terres, we have seen many photographs. We
11 don't have them all in our mind, of course. They have
12 been shown here in the Chamber to respond to the
13 objection of Mr. Sayers. For instance, let us take the
14 example that he gave, the photograph of a body on the
15 road. If it has already been produced, perhaps it
16 would be sufficient to attach a reference, because
17 obviously a photograph out of context has absolutely no
19 JUDGE MAY: Yes.
20 Going on to the documents, Mr. Sayers. We've
21 now got your document which sets out the objections.
22 Is there anything you want to add to that?
23 MR. SAYERS: Not really, Your Honour. I
24 think the objections are self-explanatory. As you can
25 see, we've not objected to most things, and the only
1 documents to which we have objected are the ones which
2 we genuinely felt lack-of-foundation and
3 lack-of-authentication objections were appropriate.
4 But once again, it's a matter for the Court,
5 obviously. The weight to be accorded to those
6 documents is absolutely within the province of the
8 JUDGE MAY: Mr. Mikulicic.
9 MR. MIKULICIC: [Interpretation] Your Honour,
10 regarding the photographs that were mentioned, the
11 Cerkez Defence does not object to them being admitted.
12 Of course, it is up to the Trial Chamber to assess the
13 importance and probative value of those exhibits.
14 The Cerkez Defence would like to draw your
15 attention to a number of examples, for instance,
16 Exhibit 2158, it is a layout of the Vitez Hotel, the
17 Defence objects because simply we don't know who is the
18 author of that layout and what is the source of that
19 document. Also document 2204, which speaks about the
20 strength of combat units and where mention is made of
21 Cerkez, the Defence would like to obtain the original
22 document to be able to take a position on it. Document
23 2208, a list of victims by ethnicity, again, we don't
24 know the source, nor what it is based on. And we have
25 no objections regarding the rest of the exhibits.
1 As a matter of principle, the Defence objects
2 to the admission of press reports because the probative
3 value has already been ruled upon by this Trial
4 Chamber, of such a document.
5 JUDGE BENNOUNA: [Interpretation]
6 Mr. Lopez-Terres, I think that all these matters could
7 be resolved if there are references attached to the
8 documents, and this would take care of the observations
9 made by Mr. Mikulicic. I think it is a good practice
10 and a way of authenticating things by indicating the
11 references. So if we have references to these exhibits
12 at the bottom of the page of the relevant document, I
13 think that would address the concerns expressed.
14 MR. LOPEZ-TERRES: [Interpretation] We shall,
15 indeed, proceed with the authentication, and we shall
16 do all that we can in order to establish and include
17 the source of these documents.
18 JUDGE MAY: We shall admit these documents
19 for the same reason as we admitted the documents in the
20 Novi Travnik binder, but the authentication which has
21 been mentioned and the source in relation to those
22 binders, Mr. Mikulicic, who specifically asks for
23 source, that should be attended to.
24 MR. NICE: Can we move then, while
25 Mr. Lopez-Terres makes way, I hope, for Mr. Scott, to
1 the Ahmici binder, which is, I think, very
3 JUDGE MAY: My reading of it, correct me if
4 I'm wrong, is that it refers to witnesses who've
5 already testified --
6 MR. NICE: Correct.
7 JUDGE MAY: -- so we don't need anything from
9 MR. NICE: And 1, 2, and 3 of the -- sorry, 1
10 and 2 of the witnesses who've testified in other cases
11 have been ruled in; witness 3, I think, has been
12 withdrawn by us; witness 4 is subject to a subpoena;
13 witness 5 is accepted on behalf of Kordic, but we await
14 a position to be stated on behalf of Cerkez. I'll come
15 to her in a second, without using her name, of course.
16 On the exhibits, the list of exhibits all
17 have already been produced and, therefore, are not
18 reproduced, save for Exhibit 1, which we can find at
19 the end of the binder. Number 2 is not there. Sorry.
20 Thank you. Number 1 has already been produced, and
21 it's number 2 that's in the binder. I'm grateful to
22 Ms. Verhaag. Coming from the same source. Otherwise,
23 the list of exhibits are simply a matter of history.
24 The binder then contains the transcripts to
25 be admitted, as already so decided, save that towards
1 the end there's Witness F in the Blaskic case, as I
2 say, accepted on behalf of Kordic, not yet announced so
3 far as Cerkez is concerned, and part of the
4 justification for her being allowed, as it were, to
5 give evidence by transcript is made out by the medical
6 report that follows and explains her present position.
7 JUDGE MAY: Would it be convenient to deal
8 with her transcript now?
9 MR. NICE: Yes. I don't know. It may be
10 that there's no objection at all. We were simply
11 waiting for a result.
12 JUDGE MAY: If we go to the transcripts, what
13 number is she?
14 MR. NICE: If you haven't got tags on them,
15 in the bottom right-hand corner -- the fifth witness,
16 then, if they've got tags on them. The fifth witness.
17 JUDGE MAY: Number 37 in the schedule of
18 transcript witnesses that we were given, perhaps,
19 Mr. Kovacic, you could tell us what the position is.
20 MR. KOVACIC: That was exactly the issue,
21 Your Honour, I mentioned a couple of times, because I
22 thought that I'm obliged to give that information. So
23 it appears that it is the proper time.
24 We have been given by your order time to
25 study the witnesses under items 25, 34, 37, and 39 --
1 JUDGE MAY: Could you just deal with 37 now,
3 MR. KOVACIC: Okay. Number 37, we will not
4 object to have the transcript tendered into the case.
5 JUDGE MAY: Thank you. So 37 can be added to
6 the list of transcripts.
7 MR. NICE: In which case, I think that the
8 whole of this binder is now agreed. I don't think
9 there's any outstanding objection.
10 JUDGE MAY: You mentioned, amongst the
11 exhibits, number 2.
12 MR. NICE: Yes.
13 JUDGE MAY: "Inclusion from death
14 certificates." Has that been admitted?
15 MR. NICE: I don't think it's challenged, and
16 you will find at the end of the binder is the summary.
17 The Court will see it's a document that
18 summarises, or if you like, concludes, but really
19 summarises, the effect of the death certificates and
20 therefore renders the material more accessible.
21 JUDGE MAY: Can you tell us where it comes
23 MR. NICE: It comes from, I think, the same
24 source --
25 JUDGE MAY: As 1583?
1 MR. NICE: I'm sorry. In-house, it's an
2 in-house summary.
3 JUDGE MAY: Okay.
4 [Trial Chamber confers]
5 JUDGE MAY: Is there any objection to this
7 MR. SAYERS: As you can see from our list,
8 Mr. President, there was a lack-of-authentication and a
9 lack-of-foundation objection. We have no idea where
10 the document came from. But since it appears to be
11 generated by the OTP, and assuming that it's accurate,
12 then obviously our concerns are addressed and the
13 objection would be withdrawn.
14 JUDGE MAY: Thank you.
15 Do you want to say anything, Mr. Kovacic?
16 MR. KOVACIC: We have about the same
17 position, Your Honour.
18 JUDGE MAY: Yes. Thank you. Very well. It
19 will be admitted.
20 MR. NICE: Thank you very much. That, I
21 think, concludes that binder. I'm sorry I was
22 uncertain about one or two matters, and I have to speak
23 for the efficient -- as a mouthpiece for the person who
24 prepared this particular one, I fail in the efficiency
25 that she would bring to the task. But there it is.
1 She doesn't have right of audience.
2 If Your Honour will just give me one minute
3 while Mr. Scott catches his breath.
4 [Prosecution counsel confers]
5 MR. NICE: I am reminded that there are
6 still, in relation to transcripts, outstanding
7 decisions from --
8 JUDGE MAY: Yes. Let's deal with the binders
9 and then come back to the transcripts.
10 MR. NICE: I think there are no more binders
11 to be dealt with at the moment. There's one more to be
12 dealt with --
13 JUDGE MAY: Kiseljak.
14 MR. NICE: Kiseljak, and I gather that's not
15 quite ready -- it hasn't yet been copied or something.
16 JUDGE MAY: Very well. Let's move on for the
18 MR. NICE: That's the only outstanding
20 On the transcript witnesses, we are awaiting
21 responses from Mr. Kovacic on 25, 34, and 39.
22 JUDGE MAY: Yes. Well, let's deal with them
23 next. Numbers 25, 34, and 39, are those the numbers?
24 MR. NICE: I think so.
25 JUDGE MAY: Yes.
1 Yes, Mr. Kovacic.
2 MR. KOVACIC: Exactly the numbers you have
3 mentioned, Your Honour, according to earlier discussion
4 about the transcripts, 25 -- I'm talking about the
5 numbers from the transcript list -- so 25, 34, 37,
6 which we just mentioned, sorry, and 39, we do not
7 object to have those transcripts tendered in the case.
8 Should I also now inform the Court about
9 witness number 10, which was in the group to be agreed
10 by the parties or negotiated by the parties?
11 JUDGE MAY: Let us just deal with those
12 three. There being no objection to those three
13 transcripts, they can be added to the list.
14 And then there were the matters, yes, which
15 were for discussion --
16 MR. NICE: Mr. Scott will deal with number
17 12, and I think number 10 is unresolved, but it may be
18 that Mr. Kovacic wants to add something to whatever the
19 present state of today is.
20 JUDGE MAY: Mr. Kovacic, shall we begin with
21 number 10.
22 MR. KOVACIC: Number 10, Your Honour, we
23 oppose to have this transcript introduced in our case
24 directly. We would like to hear that witness directly,
25 we would like to cross him. If you want me to explain
1 in a short way, I, of course, will.
2 JUDGE MAY: Is number 10 not a witness that
3 you're seeking to call?
4 MR. NICE: We are seeking to call him at the
6 THE INTERPRETER: Microphone, please.
8 MR. NICE: Yes, we are seeking to.
9 [Trial Chamber confers]
10 JUDGE MAY: Yes. Well, we think he's a
11 witness that should be called rather than the
12 transcript read, for the same reasons we gave last
14 MR. NICE: Yes. Obviously if I'm unable to
15 succeed in securing his attendance, I may have to
16 return to the application but we'll proceed on the
17 basis that we'll try and get him.
18 JUDGE MAY: I would not encourage it.
19 MR. NICE: Number 12, Mr. Scott can deal
21 MR. KOVACIC: If I just may, the situation
22 just dramatically changed now. I don't have to oppose
23 to that witness, obviously, because --
24 JUDGE MAY: Number 10.
25 MR. KOVACIC: For number 10, right. Because
1 the Prosecution will bring them.
2 JUDGE MAY: Yes.
3 MR. KOVACIC: Then we have another problem.
4 We, just this morning, received a batting order list, a
5 Prosecution list where there are witnesses which by the
6 Prosecution will be called in the next two weeks, and
7 that witness is not on that list.
8 JUDGE MAY: They're trying to call him.
9 We'll have to see how it happens.
10 MR. KOVACIC: It's confusing.
11 JUDGE MAY: At the moment the transcript we
12 rule inadmissible, and I've told them that they're not
13 encouraged to make further applications. If they want
14 the witness, they must call him.
15 Yes. Can we go on to 12, please.
16 MR. KOVACIC: Thank you.
17 MR. SCOTT: May it please the Court, Your
18 Honour, the position -- the Prosecutor's position or
19 the status, perhaps I should say, concerning number 12
20 is the Cerkez Defence is agreeable to the entire
21 Blaskic transcript being admitted with no redactions or
23 The Kordic Defence has requested a number of
24 deletions. We -- the Prosecution, is not agreeable to
25 those deletions. We think the full transcript should
1 come in as did a number of transcripts last week, even
2 if it is over certain Defence objections. We believe
3 that the matters, the objections raised go at best to
4 credibility or weight, that there was cross-examination
5 of this witness in the prior case, and the transcript
6 of number 12 should be admitted in its entirety. We
7 are not agreeable to any deletions.
8 JUDGE MAY: There was some possibility of
9 calling that witness, Mr. Scott. What's the position?
10 MR. SCOTT: It does not appear, Your Honour,
11 that he is likely to appear. He's not expecting to
13 JUDGE BENNOUNA: No. Because I think we
14 dealt with this one. What is the reason he's not going
16 MR. SCOTT: Your Honours, this raises matters
17 from the ex parte several days ago. He's simply -- for
18 these purposes I can only tell the Court that he's
19 unwilling to appear.
20 JUDGE BENNOUNA: Yes. Okay.
21 JUDGE MAY: I think it was mentioned in open
22 court. This was the witness that Mr. Kovacic
23 mentioned, who was the policeman.
24 MR. SCOTT: Yes.
25 JUDGE MAY: Who had not received promotion.
1 MR. SCOTT: That's correct, Your Honour, and
2 he's very angry about that, and he's not willing to
3 come to The Hague at this point.
4 JUDGE BENNOUNA: Did you try another way, by
5 videolink or -- no?
6 MR. SCOTT: Not at this time, Your Honour.
7 JUDGE BENNOUNA: No?
8 MR. SCOTT: In our judgement, any further
9 efforts would be futile.
10 JUDGE MAY: Yes, Mr. Sayers.
11 MR. SAYERS: I'm sure the Court has in mind
12 the previous discussion regarding this witness. We
13 attempted to accommodate the Prosecution by agreeing to
14 the admission of this transcript so long as the parts
15 that are specific, the specific testimony that he gives
16 about Mr. Kordic, are deleted, and in the absence of an
17 agreement to that effect, we are simply not willing to
18 agree to the admissibility of this transcript.
19 JUDGE MAY: You better remind us of your
21 MR. SAYERS: This witness -- I won't mention
22 his name -- he was the TO commander in Stari Vitez.
23 The Court indicated that it felt that his testimony was
24 significant. Our position is that the witness
25 essentially perjured himself on a number of occasions,
1 and we informed the Court that we did not accept any of
2 his testimony. Bearing in mind the Court's earlier
3 observations regarding matters of weight and things of
4 that variety, we were prepared to reconsider the
5 objection, but we're not prepared to reconsider the
6 objection in so far as this witness gives specific
7 evidence about our client, and apparently that's
8 unacceptable to the Prosecution.
9 It's about, I think, four pages of testimony
10 in a very substantial transcript that we objected to,
11 and the Prosecution's not amenable to our suggestion
12 that those passages be deleted. They're the only
13 passages that deal with our client specifically, I
14 believe. But in the absence of such an agreement, I
15 believe we are entitled to confrontation rights for all
16 the reasons previously articulated, Your Honour. Thank
18 [Trial Chamber confers]
19 MR. SCOTT: Your Honour, if I might, before
20 the Court rules, just respond very briefly.
21 Your Honour, the problem with the deletion
22 that Mr. Sayers says, properly so, that he has offered
23 to make, that's a little bit like saying, "We agree to
24 all the evidence as long as you take everything bad for
25 us out." I understand that, coming from his position,
1 from where he sits, but it doesn't offer much to the
2 Prosecution to say that, "We'll agree to the transcript
3 as long as you take anything about our client out of
4 the transcript."
5 Your Honour, this particular witness, and the
6 particular part that Mr. Sayers objects to, and I'll
7 again speak in relatively general terms, regards or
8 concerns, the Court may recall a conversation with the
9 accused Mr. Kordic on one end and several people who
10 were at the other end, and which another witness has
11 described how he held the phone out and several people
12 in the room could hear Mr. Kordic, allegedly hear
13 Mr. Kordic on the other end.
14 This witness's story or description of that
15 event, which again is the only part of the transcript
16 that Mr. Sayers objects to, is broadly consistent with
17 that story, that it did happen, that there was a phone
18 call. It did happen. There are some discrepancies in
19 details. Those discrepancies on details can be fully
20 raised in any argument by the Defence. They can attack
21 the credibility. They can say the stories are
22 inconsistent, it goes to weight, it shouldn't be
23 regarded as true, et cetera, but it is broadly
24 consistent with testimony of at least, I think, two
25 other witnesses who touch on the existence of this
1 phone call. So there is corroboration in the record
2 that this event occurred.
3 As to the differences in details, Your
4 Honour, again we submit that it goes to weight. The
5 Court, last week, admitted a number of transcripts,
6 frankly, over Defence objection because, in the Court's
7 view, they did not go to matters that were absolutely
8 fundamental to have in court, cross-examination, and we
9 submit the same as concerning this witness, Your
11 JUDGE MAY: If we were against you, I'm not
12 saying we are for the moment, we haven't yet considered
13 it, but would you want the rest of the transcript in
14 without that portion?
15 MR. SCOTT: Well --
16 JUDGE MAY: Or perhaps we could leave that
17 matter for you to decide.
18 MR. SCOTT: I guess we'd want to make a final
19 decision, Your Honour. If that's the Court's position,
20 I guess we'd have to make one last final assessment.
21 JUDGE MAY: Yes. Well, we'll consider that.
22 [Trial Chamber confers]
23 JUDGE MAY: We've thought about this, and we
24 think that this witness comes within the category of
25 those who give significant and important evidence, at
1 least as far as this conversation is concerned, which
2 would require his presence and cross-examination on the
3 point, and it would not be right, in those
4 circumstances, to rely purely on the transcript.
5 In those circumstances, we are not going to
6 admit this transcript unless there are some other
7 matters which are not particularly in dispute.
8 MR. NICE: I think our position -- we've been
9 discussing it while the Court's been making its mind
10 up -- our position is that we would seek to put in the
11 balance of the transcript subject to the pages
12 identified in the latest letter by Mr. Sayers and
13 subject to our having one last effort to see if we can
14 persuade the witness. If that's -- that means it's in
15 subject to, as it were.
16 JUDGE MAY: Yes. Subject to the objected
18 MR. NICE: We can, in due course, add that to
19 the binders of transcripts if it's appropriate, taking
20 out the objected passages.
21 MR. KOVACIC: Your Honour, if I may add. If
22 that part of the transcript is admitted, then we are in
23 a different picture, because you remember that events,
24 what was here presented by --
25 JUDGE MAY: We're not going to admit that
2 MR. KOVACIC: But the idea, if I understood
3 correctly, the latest idea of the Prosecutor is that he
4 might omit this part which is disputed by the Kordic
5 Defence. Then probably you can decide to have the
6 transcript introduced but without that part.
7 JUDGE MAY: Yes.
8 MR. KOVACIC: But that changes my position
9 then, because my client was also mentioned being
10 present on that meeting. So it puts him in a different
11 shape, I guess. I mean, I'm a little bit caught off
12 guard on that, I have to admit, but --
13 JUDGE MAY: Consider the position and
14 consider it with the Prosecution. If necessary, you
15 can refer it back to us --
16 MR. KOVACIC: Yes, sir.
17 JUDGE MAY: -- once you've found out what
18 they want to do.
19 MR. KOVACIC: Thank you so much.
20 JUDGE MAY: Can we deal with the -- oh, no.
21 It's 11 o’clock. We'll adjourn now.
22 MR. NICE: There are a few more witnesses to
23 be dealt with specifically from the transcript list.
24 I'm going to go and see if I can physically lay my
25 hands on the affidavits or copies of the affidavits
1 so-called that we've obtained so that we might deal
2 with the remaining affidavit witnesses. Mr. Scott can
3 then deal with exhibits generally, and I'd like to
4 touch on the question of videos before we adjourn
6 JUDGE MAY: Yes. We too would like the
7 batting order for the next two weeks.
8 MR. NICE: Certainly.
9 JUDGE MAY: We'll adjourn until 20 past
10 today. We'll come back rather early.
11 --- Recess taken at 11.02 a.m.
12 --- On resuming at 11.27 a.m.
13 MR. NICE: Mr. Scott will deal with a couple
14 of witnesses in detail.
15 JUDGE MAY: Number 21, 26, and 38, am I right
16 in those numbers?
17 MR. SCOTT: Yes, Your Honour. There is one
18 other additional matter to raise with the Court.
19 JUDGE MAY: Yes.
20 MR. SCOTT: Concerning number 26, Your
21 Honour, that witness will now testify live, so there's
22 no transcript issue at this juncture.
23 Concerning number 38, we have communicated,
24 in this instance, to the Defence that we are agreeable
25 to only a very small number of pages. In fact, I think
1 the pages submitted by the Prosecution, in round
2 numbers, is something like ten pages of transcript, a
3 very limited portion of this witness's Blaskic
4 testimony dealing specifically with one village in the
5 Lasva Valley. There is no specific reference in that
6 excerpt to either of the accused. So we proceed to
7 offer that portion of the transcript in lieu of calling
8 that witness.
9 JUDGE MAY: All right.
10 MR. SCOTT: I don't know if it is the Court's
11 pleasure to take the Defence's response right now or to
12 continue through the other --
13 JUDGE MAY: Let's deal with them one by one.
14 Number 38.
15 MR. SAYERS: Yes, Mr. President. I received
16 a letter late yesterday concerning witness number 38,
17 and the position articulated by the Prosecution was
18 that they only wanted a limited portion of his direct
19 examination. They informed us that they had redacted
20 materials relating to Mr. Kordic specifically, but the
21 very first passage that we looked at contained a
22 reference to Mr. Kordic. So that's a matter of
24 The Court will have in mind that this witness
25 was originally intended to be called live, we had
1 prepared for him, and then we were instructed that he
2 was not going to be called; and then subsequently, the
3 Prosecution wanted to add his transcript to the list of
4 transcripts to be admitted into evidence; and now they
5 only want a piece of it to be admitted into evidence.
6 Then the letter that we received says as
7 follows: "We have not identified any cross-examination
8 to include because we have been extremely narrow in
9 designating the direct testimony. We do not believe
10 that it is fair or appropriate for us to include only a
11 handful of pages than have the entire cross-examination
13 It seems to me, Your Honour, that this falls
14 exactly within the scope of your earlier ruling, that
15 bits and pieces of transcripts can't be added, it's
16 either all or nothing. We have, in principle, no
17 objection to the admission of this witness's testimony,
18 provided the passages that relate specifically to
19 Mr. Kordic, and there are only a few of them, are
20 deleted. Otherwise, we would like to have the witness
21 present for cross-examination on those issues, as we
22 were prepared to cross-examine him just a few weeks
24 That's the position.
25 JUDGE MAY: If the reference to your client
1 were excluded, would you have any objection to the
2 transcript going in in the redacted form the
3 Prosecution seek to put it in?
4 MR. SAYERS: Well, just for context, Your
5 Honour, this witness gave about 200 pages of testimony,
6 and I believe only ten pages are offered. With the
7 Court's permission, I'd have to go and take a look
8 specifically at those pages. I have not had the
9 opportunity to look at the specific passages that the
10 Prosecution wants to have added. And I can update the
11 Court on Monday morning, first thing, if that's
13 JUDGE MAY: Although it's right, it's a
14 matter of principle, that we should have all the
15 testimony in, I mean, it may be with that amount, a
16 saving of 190 pages would be welcome.
17 MR. SAYERS: To all of us, Your Honour, yes.
18 JUDGE MAY: You're not in a position to deal
19 with that, but you want the reference to your client
21 MR. SAYERS: Correct.
22 MR. KOVACIC: [Interpretation] We did not
23 object to the admission of this witness, but it is also
24 our position -- actually, we slightly differ. I think
25 that the testimony should be admitted as a whole or not
1 at all. And when I say "as a whole," I mean the direct
2 examination, the cross-examination, and all parts of
3 the transcript.
4 JUDGE MAY: Why do you say that, Mr. Kovacic,
5 in this particular case?
6 MR. KOVACIC: [Interpretation] It seems to me
7 that, out of a total of some 200 pages, and if at the
8 end, we admit some 20 pages, then that is certainly out
9 of context, and one doesn't get the whole picture if
10 you just read the 20 pages.
11 JUDGE MAY: This is so in this case, is it?
12 MR. KOVACIC: [Interpretation] That is what it
13 looks like to me because on the basis of what I have
14 just heard, on the outcome of these discussions.
15 MR. SCOTT: Your Honour, I'm not going to
16 belabour the point, but I must say that this kind of
17 back and forth is not helpful. The Kordic Defence
18 objected to the transcript; it was on the chart that
19 they did some weeks ago. They objected; we responded
20 by attempting to delete the objectionable material; and
21 then we come this morning and, to some extent, are
22 taken to task for only offering a part of the
23 transcript which is directly responsive to the Defence
25 So I object to that basic taking of position
1 here. We've tried to be exactly responsive to the
2 dialogue that's gone on in this courtroom over the past
3 ten days. And we earlier represented to the Court that
4 we'd make a good-faith effort to limit the testimony of
5 this particular witness to that particular item which
6 was not cumulative concerning a particular -- in large
7 measure, a particular village, Kazagici, and that's
8 exactly what we did. And we --
9 JUDGE MAY: Sorry to interrupt --
10 MR. SCOTT: No. That's fine, Your Honour.
11 JUDGE MAY: -- but is there reference to
12 Mr. Kordic in it?
13 MR. SCOTT: There is some reference and
14 that's the part we've taken out.
15 JUDGE MAY: You've taken that out?
16 MR. SCOTT: We've taken that out. And no
17 reference, as I know, to Mr. Cerkez. So I don't
18 understand the objection.
19 JUDGE MAY: No reference to Mr. Kordic, no
20 reference to Mr. Cerkez.
21 MR. SCOTT: No, Your Honour. That's
23 [Trial Chamber confers]
24 JUDGE MAY: Well, we accept what Mr. Scott
25 says about this. It's right that there was one part
1 which was of importance. We do not want to overburden
2 the record in this case which is overburdened enough as
3 it is. We will admit the ten pages.
4 MR. SCOTT: Thank you, Your Honour. It
5 leaves two, then, witness matters before Mr. Nice deals
6 with the affidavit.
7 Number 21, which is also outstanding -- and
8 I'll pause for everyone to refer to the list -- who
9 will now come and testify live. So that is not a
10 transcript issue.
11 The final matter, Your Honour, to raise in
12 this regard, and we alerted the legal officer to this
13 and a copy of the same letter went to Defence counsel,
14 we do have one final proposal on this matter, Your
15 Honour. We had earlier, the Court will recall,
16 withdrew, as part of this process, the transcript of
17 number 42, which again I will pause. We had withdrawn
18 that completely voluntarily, Your Honour, when the
19 Court had requested, some weeks ago, to see if we could
20 go back through the transcripts and possibly eliminate
21 a few. Again, mindful of the President's comments just
22 now not to burden the record more than necessary.
23 That decision was made, Your Honour, as so
24 many decisions at this point in the case, on the basis
25 of rolling information as to the availability of other
1 witnesses. We withdrew number 42 completely on the
2 notion or premise that another witness would come live,
3 which in our view, frankly, would have been a better
4 witness on this issue and, therefore, we withdrew
5 number 42.
6 As the Court knows, there's been virtually
7 day-to-day if not hour-to-hour contact with many of
8 these witnesses over the past ten days. The particular
9 witness that we had hoped to call in this particular
10 regard, I don't know that his name was particularly
11 sensitive but, on the other hand, there's probably no
12 reason to spread it on the record, it would be -- I'm
13 just seeing if there's a document that the Court has in
14 front of it. If the Court still has the chart that was
15 used some days ago, the categories of the dead and
16 unwilling argument. I'm not sure we need to get
17 heavily bogged down in this, but -- so the record is --
18 well, at least that the Court is more advised, it was
19 one of the Category D witnesses. The witness was
20 number 9.
21 We had proposed to call witness number 9 on
22 that list in place of the transcript of number 42.
23 Number 9 -- I will say Mr. H -- is now no longer
24 desirous of coming to The Hague. Because of that, Your
25 Honour, we have reconsidered the state of the evidence
1 on the points covered or to be covered, and in lieu of
2 pressing Mr. H further, we simply think we can
3 accomplish the same and, in fact, we can accomplish it
4 with one less live witness over the next two weeks, by
5 instead renewing our offer of the transcript of number
6 42. That's our position.
7 I am reminded, Your Honour, if it's a factor
8 in the Court's thinking, that a subpoena did go out
9 to -- as been applied for to Mr. H, but we're not sure
10 the effect -- what the ultimate effect of that might
12 Simply put, Your Honour, the Prosecution
13 seeks to simplify the matter at this juncture by using
14 the transcript of number 42 in lieu of the other
16 JUDGE MAY: Very well. That's the
18 MR. SCOTT: Yes, Your Honour.
19 JUDGE MAY: We have the Defence position set
20 out, the objection being, on behalf Mr. Kordic, a
21 question of credibility because the witness lied under
22 oath, which was demonstrated during cross-examination.
23 The witness, as you say, should, therefore, be called
24 live. He gives evidence about Kiseljak and Rotilj and
25 about two of the HVO units. He gives no direct
1 evidence as far as either of accused is concerned.
2 Anything you want to add to that?
3 MR. SAYERS: Just one point, Mr. President,
4 and that is that apparently the exhibit with which the
5 witness was confronted on cross-examination was
6 sealed. We have not seen it. If the Court is of a
7 mind to permit the introduction of this transcript,
8 then we would certainly like to see the exhibit.
9 JUDGE MAY: Yes.
10 MR. KOVACIC: [Interpretation] We have no
11 position because these are witnesses outside the
12 indictment for Mr. Cerkez.
13 JUDGE MAY: Mr. Scott, is there any
14 difficulty about the sealed exhibit?
15 MR. SCOTT: No, Your Honour. We think that's
16 a fair request and we can provide it to counsel.
17 JUDGE MAY: All right.
18 [Trial Chamber confers]
19 JUDGE MAY: In our ruling on the transcripts,
20 we set aside a category which we call generally
21 "Village Witnesses." This witness comes into that
22 category, and we shall admit the transcript. The
23 sealed exhibit must obviously be provided, produced,
24 and the objection relating to credibility relates to
25 weight and that would be a matter for us to determine.
1 MR. SCOTT: Thank you, Your Honour.
2 MR. NICE: Before I turn to the next topic of
3 affidavits, I'm sure the Court will appreciate that a
4 lot of the sorting out that we've been attempting over
5 the last couple of weeks is sorting out to ensure that
6 every element of the confirmed indictment is covered by
7 an on-the-ground witness but that not too much material
8 is provided for each of those individual on-the-ground
9 crimes. We hope indeed that we would have covered
10 every such element.
11 If by any reason there is a shortfall,
12 through oversight or through some event that happens at
13 the very last minute in relation to witnesses we're
14 expecting to call, I observe simply in advance that
15 it's always going to be open to the Trial Chamber
16 itself, under Rule 98, to request us to produce more
17 evidence in relation to such particular topics.
18 The affidavit witnesses, the Chamber will
19 remember, were listed at the foot of the list of
20 witnesses headed "Argument on Dead and Unwilling." If
21 the Chamber has that list, I can inform you that we
22 have now what we loosely term affidavits in respect of
23 the following witnesses: Numbers 14, 17, 20, 21, 22,
24 and 23.
25 Before I turn to the format of the affidavits
1 and just so I don't forget the point, because it's a
2 general institutional matter for no doubt this Chamber
3 and other Judges to consider in due course, we've
4 finally achieved what we wanted and what the Chamber
5 rightly from the beginning of this trial was
6 encouraging us to look at under its Rules. It's, at
7 the moment, necessary to do that because of the
8 arguments raised about not necessarily evidence raised
9 about investigators' statements, arguments we reject.
10 The exercise has brought terrific cooperation
11 from the local Judge, as you can hear, but it is
12 extremely time-consuming. Obviously more
13 time-consuming as is anything at its pilot stage, the
14 first time it's attempted and achieved, but it's a very
15 time-consuming exercise.
16 Now, I have before me the product of the
17 recent mission to get these affidavits. I can't make
18 them available in their present form to the Defence,
19 because in each case, as you would expect, the Judge
20 has obtained not just the name but the addresses of the
21 witnesses concerned, and that is material that
22 typically does not go to the Defence.
23 That apart, I think the documents could be
24 shown for their general format to the Chamber, although
25 again the name of individual witnesses is probably
1 something that shouldn't be put on an ELMO.
2 So I'm in this position: If the Defence
3 don't object at this stage, I could simply show to Your
4 Honour and Your Honour's colleagues the precise format
5 of these documents, and then in due course, I hope over
6 the weekend or within a couple of days getting, with
7 the Chamber's leave, the redacted versions served on
8 the Defence excising the addresses of the witnesses,
9 but at least you'll know straightaway the format of the
10 documents that we've produced.
11 Mr. Guariglia, who was the lawyer who
12 attended, with an investigator, and a Judge, is here to
13 explain the process that was gone through and not as a
14 witness but I hope from counsel's row, and I'm going to
15 ask the Chamber to say in principle, subject to any
16 arguments, and of course subject to production of
17 redacted and translated versions of these documents,
18 that they may be admitted.
19 The first step, therefore, is whether the
20 Chamber's prepared to see these, as it were, ex parte,
21 but in court because of the references to addresses.
22 JUDGE MAY: Yes. I don't see how we could
23 possibly determine the matter without hearing what the
24 Defence have got to say about it, but no harm in our
25 seeing them.
1 MR. SAYERS: Just as a matter of principle,
2 Your Honour, it seems to me that if in the Trial
3 Chamber sees them then we should to, and the Trial
4 Chamber should see them at the same point that we do,
5 when they've been reduced to a form for everyone's
6 consumption, shall we say.
7 [Trial Chamber confers]
8 JUDGE MAY: We're concerned about the notion
9 of seeing these documents without the Defence having
10 seen them, but speaking for myself, I would like to see
11 the format in which they are without seeing any of the
12 details. Can you perhaps describe it and then we'll
13 hear exactly how they were taken?
14 MR. NICE: Yes. I think probably without --
15 THE INTERPRETER: Microphone, please,
16 Mr. Nice.
17 MR. NICE: Rather than do it secondhand, I
18 think the best thing is Mr. Guariglia, who is a lawyer
19 within the Office of the Prosecutor and who is of grade
20 to have rights of audience, rights of audience explains
21 it to you.
22 JUDGE MAY: Yes, but I'd like you to work out
23 how we can see on the ELMO the relevant parts which
24 will indicate what the authentication or whatever it is
1 MR. NICE: Very well. I think if I can find
2 one witness who is unlikely to have selected any form
3 of protection, I'll just deal with that.
4 With the usher's cooperation -- sorry.
5 [Trial Chamber confers]
6 MR. NICE: With the usher's cooperation, I
7 will lay two sheets on the ELMO for a witness who, I
8 understand, expressed no desire for protection, and
9 Mr. Guariglia will be able to assist you with what
11 MR. GUARIGLIA: Your Honour, what you see is
12 a statement taken by an investigative judge in the
13 Cantonal Court in Zenica, pursuant to a request for
14 assistance made by the Office of the Prosecutor,
15 channelled through the Ministry of Justice, and treated
16 by the investigative judge and by the Cantonal Court in
17 Zenica, under the applicable provisions in the domestic
18 law dealing with international assistance and
20 The procedure was very simple and
21 straightforward, although long and time-consuming.
22 Witnesses were summoned by the national authorities,
23 pursuant to the applicable domestic provisions, and
24 then appeared before the investigative judge in the
25 Cantonal Court in Zenica.
1 There, witnesses were shown, by the
2 investigative judge, their previous statement given to
3 investigators of the Office of the Prosecutor for the
4 purpose of confirming that those statements were their
5 statements, confirming their signature in those
6 documents, and confirming further the accuracy and
7 truthfulness of the contents of those documents.
8 Witnesses were shown either the French or English
9 version of the statement, which is the one that they
10 had previously signed, for the purposes of confirming
11 their signature, and they were also shown versions of
12 their statement in their language, for the purposes of
13 confirming the truthfulness of their contents.
14 Witnesses were invited to make any
15 corrections, amendments, that they wished to, and two
16 of them, to my recollection, made some minor amendments
17 that were placed in the record by the investigative
19 What you have on the screen before you is the
20 record of that hearing before the investigative judge
21 in which witnesses confirmed the documents that were
22 shown to them, and if they wished to make any
23 amendments, those amendments, those corrections, were
24 placed in this very document that you have before you.
25 JUDGE BENNOUNA: Excuse me. The person
1 concerned was assisted by somebody? Was the person
2 concerned, the witness, assisted by somebody, or was he
3 or she alone?
4 MR. GUARIGLIA: Your Honour, the witness was
5 on his or her own before the judge. Our presence in
6 the courtroom, as well as the presence of a translator,
7 this was for the purposes of -- since there had to be
8 documents that had to be shown and identified and
9 confirmed by the witness that were not in his or her
10 language, we were there and the interpreter was there
11 in order to allow the documents to be shown and
12 explained to the witness and to the judge, although the
13 judge already had the documents in advance as
14 attachments to our request for assistance.
15 One thing that I want to make clear to Your
16 Honours is that before the witness was shown the
17 documents, in order to make a statement as to their
18 accuracy and truthfulness, the witnesses were
19 identified by the investigative judge, and they took an
20 oath to speak the truth, pursuant to the applicable
21 domestic provisions, and they were warned about the
22 applicability of the national provisions dealing with
23 perjury if they failed to speak the truth in front of
24 the judge in the Cantonal Court in Zenica.
25 Finally, the document that you see before you
1 was signed -- all of them were signed by the witnesses,
2 with the exception of one who was illiterate, and she
3 had to sign with a cross, but then it was also placed
4 in the record by the investigative judge, all documents
5 were signed by the investigative judge and then further
6 authenticated with the seal of the Cantonal Court in
7 Zenica, which is the seal that you have here at the
8 lower end of the document.
9 Can we have the other sheet of paper,
11 There is finally a third document, Your
12 Honours. It is a document certifying the turnover of
13 all certified copies of these statements to me and to
14 Mr. Terry Cameron from the Office of the Prosecutor,
15 and that is also certified with the seal of the court,
16 all of these documents.
17 JUDGE MAY: Can we see the top of the
18 statement? We've seen the bottom. Can we see the top
19 of it? There must be a first page.
20 MR. NICE: The typed sheet is the first
21 page. If we look at the typed sheet, that's the first
22 page which has the name -- the other sheet, please. It
23 has the name, and it's the bottom bit that has the
24 address that I've turned over.
25 JUDGE MAY: I see.
1 MR. NICE: That's the first sheet of A4, and
2 then the second sheet is the statement itself.
3 MR. GUARIGLIA: Basically, Your Honours, that
4 was the procedure that we took. It proved to be very
5 efficient, although, as I already said,
6 time-consuming. The national authorities were
7 extremely cooperative, and in the end, we managed, with
8 their assistance, to collect a number of these
10 [Trial Chamber confers]
11 JUDGE BENNOUNA: Mr. Nice, I think you are
12 aware of Rule 94 ter. That means that the affidavit is
13 admissible only as far as it is a corroboration of --
14 it's given to prove a fact, first, and it is a
15 corroboration of the testimony in lieu of a witness.
16 Is it the case for this evidence? Do they correspond
17 to the Rule 94 ter?
18 MR. NICE: So far as is possible, they do.
19 The regime of 94 ter is arguably unworkable in this
20 case, I think, because of its detail, arguably
21 unworkable generally, but that's for another place and
22 another time. But, yes, these witnesses were chosen on
23 the grounds that, so far as possible, they amount to
24 corroborative material.
25 JUDGE BENNOUNA: On facts.
1 MR. NICE: Yes.
2 JUDGE BENNOUNA: Thank you.
3 MR. NICE: I hope that adequately explains
4 the present position.
5 [Trial Chamber confers]
6 JUDGE MAY: Looking at 94 ter, the Defence
7 have seven days in which to object once the affidavits
8 are served.
9 MR. NICE: Yes.
10 JUDGE MAY: Well, we'll have to hear those
12 [Trial Chamber confers]
13 MR. NICE: Subject to comparatively minor
14 corrections and amendments, the affidavits confirm the
15 accuracy of the OTP statements, and we would ask for an
16 abbreviation of time. Frankly, we would ask for a
17 substantial abbreviation of time because they've been
18 on notice from the service of this document, at the
19 very latest, and from, indeed, earlier documents months
20 ago, that these affidavits were going to be sought,
21 because, indeed, in the amended overview of our
22 witnesses, pursuant to the general inclination of the
23 Court to indicate its favour of affidavits, we
24 identified those witnesses that we would seek to deal
25 with by affidavit.
1 The things come as late as they do simply
2 because of the intractable problem, until recently, of
3 finding any document that could merit the description
4 "affidavit" or "formal statement," and the Chamber
5 will recall that there has been, and maybe there still
6 will be, root-and-branch objection by the Defence on
7 the grounds that no document can qualify as an
8 affidavit or formal statement.
9 But they've been on notice that we want these
10 witnesses dealt with in this convenient way for
12 [Trial Chamber confers]
13 JUDGE MAY: When are the Defence going to get
14 these documents?
15 MR. NICE: I can't, as you know, impose
16 priorities on translation. I will do my best to ensure
17 that these documents are translated, if not by the
18 official translation unit, by a language assistant for
19 a draft translation, if that's the only thing I can
20 achieve, in a few days. But I can't make promises; I
21 don't have those resources. It will be -- it's
22 obviously --
23 JUDGE BENNOUNA: Excuse me. You just said
24 that they received the statements. They are just a
25 reproduction, these affidavits are a reproduction of
1 these statements. The statements were translated.
2 MR. NICE: They've had the original
3 statements, which are verified by these affidavits, for
4 months or years. And further, I'm just going to find
5 the document --
6 [Trial Chamber confers]
7 MR. NICE: Can I just amplify it --
8 JUDGE BENNOUNA: Is it the same?
9 THE INTERPRETER: Microphone to Judge
10 Bennouna, please.
11 MR. NICE: Yes. Let me just finally make the
12 position. On the 10th of November, the Chamber will
13 remember, in response to a request, I think, initiated
14 by His Honour Judge Bennouna, we provided a list of
15 statements identifying those which should be by
16 affidavit. I can't say that all these are exactly on
17 that list, but I think all, or the majority of them
19 The statements that are effectively being
20 offered in evidence have been with the Defence for
21 months or years because they are the OTP statements.
22 The affidavit statements, and in particular,
23 the one we looked at, and I can just put it back on the
24 ELMO with the usher's assistance, because I think I
25 understand it to this degree, only contain a few
1 corrections in a few places, and although I don't --
2 [Trial Chamber confers]
3 MR. NICE: For example, if you look at this
4 same affidavit, you can pick up the format of a
5 correction -- and this was one, I think, of the two
6 affidavits where there were any corrections -- and if
7 you look about halfway down the screen, you'll see some
8 references to what we know to be "ERN" or something
9 numbers; five lines down, you'll see 00793565.
10 Now, at that point of the statement, as I
11 understand it, the witness was making a correction or
12 amplification of what he'd said before, and so this
13 witness had a few amplifications or matters of detail
14 to correct, but otherwise he was adopting his original
15 statement. Now, these corrections or amplifications
16 will have to be translated and made available, and I'll
17 do that at the earliest possibility. But as I
18 understand it, there was no significant or radical
19 departure of any kind from the earlier statements, and
20 the Defence have been on notice since November that
21 these witnesses were witnesses we hoped to deal with in
22 this way.
23 JUDGE MAY: Clearly, the earlier that this is
24 served, the better.
25 MR. NICE: Yes.
1 JUDGE MAY: There has been notice. We have
2 heard what the Prosecution say about the matter, and we
3 have now in mind how the affidavits were taken. But we
4 can't rule until we've heard what the Defence have to
6 Speaking for myself, I would be minded to
7 shorten the period that you'll get, since you've had
8 the statements for some time, but we'll rule on that
9 when these matters are served.
10 MR. NICE: Thank you very much. That leaves,
11 I think, as a substantial issue for today, the position
12 on outstanding exhibits.
13 As the Chamber knows, we have been concerned
14 to achieve -- I'll come back to that in 30 seconds.
15 One other thing about affidavits. The
16 Chamber will recall that in relation to the Novi
17 Travnik binder, Mr. Lopez-Terres spoke of statements
18 taken by the ICTY in relation to cross-examination that
19 went to the suggestion that recorded crimes may not
20 have been committed, I think, so dealing with some
21 detailed matters that were raised in
23 He said that we'll get affidavits if we can,
24 and it is possible that we will get them within a
25 fortnight. It seems to me equally possible that they
1 may be outstanding on the day when we're required
2 formally to close our case, and I simply say that if
3 they are outstanding at that stage, we would
4 nevertheless seek to have them put in out of time.
5 We've only just known of this process of
6 affidavit, and it wouldn't have been possible to have
7 dealt with them any earlier. But if I give notice of
8 that now, then it can't be said I haven't thought of
9 it. And it's really a peripheral matter. I would have
10 thought, frankly, that the crimes might themselves not
11 have been challenged, but apparently we've been put to
12 proof that they --
13 THE INTERPRETER: Would you slow down,
14 please, Mr. Nice.
15 MR. NICE: Exhibits. We've been attempting
16 two things with the exercise on exhibits, handled
17 substantially by Mr. Scott.
18 On the one hand, we have to ensure that all
19 potentially relevant exhibits are before you in a
20 library form, although you won't be referred to
21 everything, of course not, at the end of the day, but
22 we don't know now what the issues are. We know
23 something of the issues from the cross-examination, but
24 until we hear Defence evidence, we can't know what the
25 real issues are, and it's important that exhibits we
1 can produce are available.
2 On the other hand, we don't want to weary you
3 by any further extended production of exhibits that
4 needn't be dealt with in that way, and so we've
5 collected them, served them, and listed them.
6 Our application is that all those documents
7 should be admitted in evidence, subject to good reason
8 to the contrary; obviously weight being a matter for
9 later determination and in the light of argument.
10 What's happened is that there's been a
11 response by the Defence. Mr. Scott has collated, for
12 your assistance, and all our assistance, the objections
13 by categories, and I'll ask him to deal with it. But
14 our basic position is that subject to quite specific
15 attacks on specific documents, that really documents
16 should go in at this stage -- I think Your Honour said
17 something about many documents really speaking for
18 themselves -- and matters of detail to be resolved more
19 when they arise than in the generality at this stage.
20 I'll leave Mr. Scott to deal with that, and
21 with your leave, I will withdraw for a few minutes,
22 because I may want to say something about videos before
23 we separate today, and I may need to speak to somebody
24 else outside of court about that.
25 MR. SCOTT: If they haven't been already, if
1 I can ask the usher's assistance to provide this
2 one-page chart, I suppose.
3 What this represents, Your Honour -- and
4 before starting any further treatment of it, let me
5 explain it. This is a review of the first
6 approximately 150 pages of an exhibit list. It is not
7 complete in the sense that the exhibit list goes beyond
8 page 150, but for purposes of this morning's
9 presentation and to give the Court an overall feel, if
10 I can say that, for the overall situation where we are
11 at the moment, I felt we probably would not get more
12 than 150 pages into these items in the time allowing in
13 any event, but I think this makes the points that the
14 Prosecution would hope to make about these outstanding
15 matters, Your Honour.
16 What we have done is go through the various
17 correspondence and exchanges with the Defence and
18 indicated in rough categories the nature of the
19 documents being objected to. I will come -- well, I'll
20 come to it now.
21 The nature of the vast majority of these
22 exceptions or objections -- and I would say that only
23 the very smallest number of variation, in fact, I think
24 in the first 100 pages, you could count them perhaps on
25 one hand -- the objections are to lack of foundation or
1 authentication. They are not necessarily to such
2 things such as relevance or that they are material or
3 immaterial. But the vast majority, I would say
4 something like 95 per cent of the objections go to lack
5 of foundation or authentication as stated in the
6 materials provided to us by the Defence.
7 I'm going to come back to the first category,
8 Your Honour. If I can take the list somewhat out of
10 There is a category about the middle of the
11 chart. One is "BBC," the Court will see, and the other
12 is "Other Media." These are various either newspaper
13 articles or newspaper summaries, Your Honour, put out,
14 in the instance of the BBC, obviously, by the BBC. We
15 think this evidence, Your Honour, is entirely relevant
16 to the Court.
17 We remind the Court, as the Court knows well
18 by now, the accused Mr. Kordic was a public figure. He
19 was, among other things, a political figure. He was --
20 I think, even in his own trial brief considered himself
21 something as a press spokesperson on behalf of the
22 Bosnian Croat entities.
23 It is obvious and logical in the process of
24 carrying out those functions, he made, in the course of
25 two years or so, a number of public statements, whether
1 they were by press release, press conference,
2 statements to journalists, et cetera.
3 Your Honour, we think it's highly relevant,
4 as would be the case with any public figure, that this
5 information, their statements, their public statements,
6 their statements to the press are indicative and
7 relevant to not only their personal positions but also
8 the positions of the entities that they represent.
9 We understand that there is a hearsay aspect
10 to this, as with any press material, and the Court can
11 certainly take that into consideration as to weight.
12 We would certainly not argue to the contrary.
13 All of us probably in the courtroom, Your
14 Honour, have had various dealings or experiences with
15 the press in one fashion or another, professionally or
16 otherwise, and I think we can all make judgements
18 But these are the recorded statements or the
19 statements of, in particular -- not always, but
20 particularly Mr. Kordic, making various statements
21 about the HVO's position or about the HVO policy, about
22 certain acts or events in Central Bosnia, and we think
23 they should be admitted for their -- and considered for
24 their weight, Your Honour.
25 In regard to the BBC summaries, I don't
1 think, Your Honour, I don't even think the Defence
2 would say, I hope, that there's any reason to believe
3 that they were somehow falsified or manufactured in
4 some way. They are what they say they are. And as to
5 the rest of it, Your Honour, we believe it goes to
6 weight. We think that these two categories of
7 material, subject to those conversations, should be
9 As to moving down the list, Your Honour,
10 there are still -- there were still a few, eight -- the
11 Court will see from the format of the chart the
12 individual exhibits are listed by number, and then the
13 first number in each box is simply the number of items
14 in that box. Obviously some of them, it's very
15 evident, but some of the larger categories such as the
16 first one, we've indicated that there are 155 exhibits
17 in the first category. I should have probably
18 explained that earlier.
19 Going back to ECMM, there are some eight
20 outstanding documents at least in the first 150 pages
21 of the list. Here again, Your Honour, we see no reason
22 why, given the amount of ECMM material that's come into
23 the case -- we think for good reason, we think entirely
24 reliably, the Court has heard from many ECMM witnesses
25 firsthand -- we see no particular reason why these
1 exhibits should be doubted in terms of their
2 authenticity or foundation any more than the others
3 that have come into evidence.
4 The same can be said, Your Honour, for the
5 UNPROFOR or BritBat documents in the next category.
6 Some approximately 38 items, again in the first
7 150 pages of the list. We'd make the same -- these are
8 milinfosums, statements or reports from the main
9 headquarters in Kiseljak, again, all the materials that
10 the Court has seen time and time again in the course of
11 the past ten months. We simply see no reason, Your
12 Honour, and no specific reasons have been tendered by
13 the Defence, why these particular 38 documents are less
14 reliable than the others that have been admitted.
15 Very quickly, Your Honour, the other
16 international documents, there are objections to a
17 document indicating the European Community's
18 recognition of the independence of Croatia. It's not
19 clear to us why that's objectionable. There's also a
20 document indicating the Republic of
21 Bosnia-Herzegovina's succession to the Geneva
22 Conventions. I'm not sure why that should be
24 There are 13 items of videotape, Your
25 Honour. Again, the videotape basically speaks for
1 itself, in the absence of some specific indication that
2 a particular tape has been falsified or manufactured in
3 some way. Other than that, Your Honour, the tapes
4 basically speak for themselves. They show what they
6 As an example, if it's a press conference by
7 Mr. Kordic, the Court can look at the tape itself. It
8 looks like Mr. Kordic. It sounds like Mr. Kordic.
9 Absent some allegations specifically and support that
10 that was somehow falsified, Your Honour, which there's
11 been no suggestion of that to date, then again, the
12 evidence should come in subject to, I guess, further
13 attack, specific attack if the Defence cares to,
14 sometime between now and the close of the entire
16 Finally, just on that one specific other
17 miscellaneous item, the Narodni List, that is a matter
18 of public record, legislation, if you will, or notice
19 of governmental business. It's not clear to us why
20 that should be objectionable.
21 That then takes us back, Your Honour, to the
22 top part of the chart. There are approximately 155
23 outstanding or objected-to exhibits in this category,
24 which we've characterised essentially HVO, HDZ,
25 Herceg-Bosna, or Bosnian-Croat documents. There is no
1 specific indication as to any of these -- well, strike
2 that. There are a very small number, literally, I
3 think, maybe three or four, where something might be
4 said beyond simply lack of foundation. But there's no
5 specific reasons as to why these documents should be
6 viewed as unreliable.
7 The Court well knows from other litigation
8 before the Court concerning binding orders in that
9 matter that the Prosecution has a limited ability, if
10 any, to bring to you an HVO custodian of record,
11 someone who could come and say, "I was a high official
12 with the HVO and here's our documents." The Court
13 knows that in the past several years, no official has
14 come forward to produce such documents to this Court.
15 Nonetheless, the documents have been gathered
16 in the course of the Prosecutor's investigations from a
17 number of different sources, and we simply again
18 submit, Your Honour, that at this point in the trial,
19 they should come in, subject to any further specific
20 attack the Defence may care to make in the Defence
21 case, or at some other time if it can make it specific
22 other than -- as opposed to a general showing.
23 That leaves us with two relatively small
24 categories, Your Honour, at this particular stage, in
25 terms of the HV or HDZ; that is, the political party in
1 Croatia as opposed to Bosnia, or to Republic of Croatia
2 documents. I suspect, Your Honour, in fairness, that
3 that number will grow as we get beyond the first
4 150 pages, especially as to international armed
5 conflict. So again, I don't want anyone, especially
6 the Court, to be confused that this represents a total
7 figure. This is the first 150 pages, and I suspect
8 there will be more Croatian documents, many more,
9 before the process is completed.
10 That's our position, Your Honour. We think
11 that objections as to foundation or authenticity,
12 absent some specific showing that a particular
13 document -- there are some articulated grounds for
14 thinking that some particular document has been
15 falsified in some way. We certainly expect the Court
16 to hear that, but there's no such allegation as to
17 these documents, and we think they should be admitted,
18 Your Honour. Thank you.
19 MR. SAYERS: Mr. President, speaking for
20 myself, this discussion takes us a little by surprise,
21 if I may say so. I thought we were dealing with the
22 village binders today, and we had prepared to deal with
23 those, but apparently we're not going to deal with all
24 of those today. Instead, the Prosecution prefers to
25 deal with the matter of exhibits.
1 I might also point out that we were told at
2 about 9.30 last night that the Prosecution was going to
3 have a witness here from the Agency for Investigation
4 and Documentation about whom we had never heard before
5 and who's not on the witness list. So we spent some
6 time preparing as best we could for that too.
7 Just thinking on my feet with respect to the
8 matter of exhibits, let me just say this: As I
9 understand it, there are six batches of exhibits that
10 have been supplied to us and, I guess, to the Court as
11 well. There are many thousands of exhibits in those
12 batches. We have prepared and filed with the Court a
13 response to each one of these batches. The responses
14 are fairly detailed. They speak for themselves, Your
16 I've not seen this document that was handed
17 to us before, but just taking a look, as one example
18 from the UNPROFOR documents, which we generally do not
19 object to, looking at Exhibit 313, if you turn to our
20 responses to batch one on page 4, there's no objection
21 to Exhibit 313. So I don't know that it makes -- I
22 mean, if that's representative of what we see on this
23 list, and I don't know the methodology that's been used
24 in selecting particular exhibits to put on this list,
25 but if that's representative, it doesn't seem to make a
1 whole lot of sense going through these things until
2 we've had the opportunity to verify that, in fact,
3 these materials are objected to. That one, and I just
4 chose it at random, is not.
5 If I could just address the particular topics
6 here. Once again, just thinking on my feet. With
7 respect to the HVO documents, the HDZ, HZ HB documents,
8 our general policy has been not to object to those
9 documents that are signed and when they're in a format
10 that is broadly consistent with other documents of the
11 same type. We do object to documents that are not
12 signed, documents generated by who knows who and who
13 knows when and who knows whether they were, in fact,
14 generally generated within the time periods that they
15 appear to have been. I think our lack of foundation
16 and lack of authentication objections with respect to
17 those are valid.
18 But I must say, and I don't know exactly how
19 to address this, I mean, these are document-by-document
20 objections, and I would imagine that that's the last
21 thing that the Court wants to do, to go through these
22 mass of documents --
23 JUDGE BENNOUNA: Can you wait?
24 [Trial Chamber confers]
25 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,
1 you yourself have just received this list which has to
2 do, in fact, with the objections that you made as we
3 went along. Perhaps you don't have the details of
4 those objections document by document. This is a list
5 where documents are grouped into categories. Wouldn't
6 it be more practical, perhaps, to have from your side a
7 table, at a certain point in time, which would,
8 category by category, remind us of the nature of your
9 objections, and then we can rule on the basis of that
10 table. This way, we're talking in general terms. We
11 cannot make any practical conclusions.
12 So if you could provide a kind of
13 retrospective similar to that made by the Prosecution.
14 I personally, of course, cannot remember, and I must
15 say fortunately, because if my memory wasn't selective,
16 I don't know where we'd be. So you have your own
17 memory registered somewhere in a computer from which
18 you could derive a table and then we could discuss it.
19 I don't know whether you agree with that
20 suggestion of mine or whether you wish to deal with the
21 matter now.
22 MR. SAYERS: Well, Your Honour, I certainly
23 respect what you say, but I thought we had done that.
24 We had actually provided the Court with a very detailed
25 list. The list is in numerical order. We have
1 rearranged the documents that were delivered to us in a
2 higgledy-piggledy, hodge-podge fashion by the
3 Prosecution. I'm the first to confess. I have
4 absolutely no idea what logic underlies the numbering
5 system that the Prosecution uses, but whatever logic it
6 is, there is a systematic -- there's a sequential
7 numbering, and we've actually filed that with the
8 Court, the Z numbers. Z4 is the first exhibit --
9 JUDGE MAY: Does it cover all the documents
10 which the Prosecution are seeking to admit?
11 MR. SAYERS: There are two categories of
12 documents, as I understand it, Mr. President. The
13 first is the batches of outstanding exhibits that are
14 general in nature that have been delivered to us, and
15 we have responded to all of those, yes, Your Honour.
16 Then there's a second category dealing with
17 international armed conflict documents, and we have
18 responded to all of those as we were required to do by
19 the Court.
20 I'm sure the Court has in mind that we were
21 required to go through each of these exhibits and
22 produce our position with respect to each of them.
23 JUDGE MAY: Well, time is getting on. We'll
24 have to consider this over the weekend. It may be that
25 you will wish to respond to this document, the most
1 recent one, in a general or a particular way. It's a
2 matter for you whether you do or not. The suggestion
3 is that you might like to look at the categories, see
4 how accurately you say the objected documents are set
5 out, and if you wanted to say anything about the
6 categories, say it.
7 MR. SAYERS: We will certainly do our best,
8 Mr. President, but I hope the Court bears in mind, as
9 the last two weeks this case comes to a close, the
10 preparation obligations upon us are tremendous, and the
11 last thing that -- well, actually, let me just make one
12 point in 30 seconds, if I may, along those lines.
13 It can't -- I think it's fairly obvious to
14 everybody what's going on here. We're being deflected
15 with just short-notice matters. It seems to me that it
16 would be helpful for everybody if we knew exactly, in
17 an organised and logical way, what it is that we're
18 supposed to deal with, when we're supposed to deal with
19 it, so that --
20 JUDGE MAY: Well, look. We have some
21 sympathy with the position you are in, but what is
22 happening is that you have a list of witnesses. If we
23 think you're being treated unfairly, we shall say so,
24 but there are pressures on everybody to get this case
25 finished --
1 MR. SAYERS: Absolutely.
2 JUDGE MAY: -- and we must ask everybody to
3 respond. If the timetable is not what it was said to
4 be then, of course, if you need more time on a point,
5 of course you shall have it.
6 MR. SAYERS: I appreciate that, Your Honour,
7 and I won't belabour the point. I think the point's
8 been made. But we'll give some thought, if we can,
9 over the weekend to the preparation of a category list
10 like this and see if it's feasible and update the Court
11 on Monday.
12 JUDGE MAY: Thank you. We will consider the
14 Mr. Kovacic, unless there's anything to say,
15 we will consider the matter. If need be, we'll ask for
16 further argument and then we'll rule on it.
17 MR. KOVACIC: But I understand that we'll
18 have opportunity on Monday to say what we think about
19 that approach.
20 JUDGE MAY: Yes.
21 MR. KOVACIC: Thank you.
22 JUDGE MAY: Yes, Mr. Nice.
23 MR. NICE: It's quite right we have a witness
24 here who is a witness who would be in a position to
25 deal with the generality of the process of transmission
1 of large quantities of the documents to us. Indeed, I
2 think that the method he would describe would be
3 broadly similar to the method the same person would
4 describe if giving an account of how documents are
5 produced pursuant to a court order from the body he
6 represents. The problem, of course, is if there's a
7 challenge to the authenticity of some specific
8 document, in the nature of things, you've got to
9 possibly move from that witness back a generation or
10 back a couple of generations.
11 His evidence will, of course, be admissible
12 under our Rules because it's not excluded on any
13 grounds of hearsay, but in the nature of things, he can
14 give general useful evidence. He's actually available
15 today, but it may be that it's too early to call him,
16 but he will, of course, be available to be called in
17 due course.
18 JUDGE MAY: Yes. Now, what's the --
19 MR. NICE: Probably not that witness today
20 then but he'll be available for later. I quite
21 understand everybody is under pressure at the moment.
22 We've done our best to serve documents as early as we
23 can. The sequential numbering system, by the way, is
24 chronological, as we explained at the beginning, so far
25 as possible.
1 Now, videotapes are another category. I
2 think Mr. Scott was dealing with them, while I was out
3 of the room, to some degree, but there's been
4 negotiation between the parties -- can I hand in
5 schedules that are already, I think, available in a
6 present form. I've already sent the present form to
7 the Defence, but copies for them, just in case they're
8 not and for the Chamber.
9 The reality of the difficulties of the
10 videotape material available to us comes from various
11 sources, sometimes arrives in the form of a
12 compilation, sometimes arrives as a single feature.
13 Where something arrives as a compilation,
14 although it might be desirable in a perfect world to
15 break every element of the compilation down and to
16 serve a single four-hour tape with two minutes on it
17 for ease of reference, it's beyond our resources to do
19 The consequence is that there have been
20 difficulties, which we quite understand, in being sure
21 that videos are correctly identified by numbers and
22 that where transcripts exist, for example, if there's
23 an example of only one segment of a compilation, the
24 balance of the compilation not being relevant, why
25 there's sometimes, I think, difficulties in associating
1 the transcript with the appropriate part of the
3 There's been a lot of negotiation between the
4 parties, and I think leading to a substantial measure
5 of agreement as to what is what.
6 If you look at this list, this is, I think,
7 the irreducible minimum that the Prosecution would seek
8 to have available as exhibits. Some, I think, for
9 reasons that Mr. Scott may have touched on effectively,
10 produced themselves, but we don't seek to take a lot of
11 your time with the remaining videos.
12 The format of the document is, I hope,
13 clear. If we look at the first sheet, the second entry
14 relates to a video that was produced by the named
15 witness through the identified advocate on the
16 particular date. That takes care of those next few.
17 The remaining ones haven't been played for
18 the time being, but we would want them to be produced
19 as part of the exhibits in the case for later
20 reference, if necessary. We might seek to trouble you,
21 before the close of our case, with playing
22 number 255 -- I think it's 255 -- but none others on
23 that page.
24 On the second sheet, you'll see that 50 per
25 cent of them have already been produced and, again, we
1 wouldn't seek to play the tapes to you of the others
2 probably. We might ask you to have a look at one or
3 two transcripts of press conferences. I need hardly
4 say that press conferences, once you've seen one,
5 you've seen them all in terms of format, and what's of
6 materiality is not the people sitting around the table
7 in the television studio but what is said. So there
8 will none to be played, I think, from the second
10 On the third sheet, I think the first three
11 are likely to be produced by the first witness on
12 Monday morning, and number 1 -- towards the bottom of
13 the page, 1428, is one we might seek to play to you.
14 The next sheet, nearly all have already been
15 played, as you can see, and I don't think we're going
16 to trouble you at this stage, save to produce them with
17 playing them. Likewise for the last sheet.
18 So that, subject to one or two bits of
19 fine-tuning, is our final position on videos. We've
20 asked them to be produced, a few more to be played, but
21 otherwise, that's it. I hope that's a swift way of
22 getting through that as a problem. There may be
23 objections, there may even be objection to the notion
24 that they don't produce themselves, but I think, for
25 the most part, they do. They certainly produce
1 themselves as to the participants, and if there's any
2 question about the date, because the item doesn't date
3 itself, well, then the Chamber can take that into
4 account as a matter of weight.
5 JUDGE MAY: Very well.
6 Mr. Sayers, is there anything you want to say
7 about this? I mean, we have to consider this,
8 presumably, with the other exhibits.
9 MR. SAYERS: Precisely. We had prepared a
10 list of the outstanding videotapes -- I do not know
11 whether this has been filed with the Court; if it has
12 not, then we will -- and this sets out all of our
14 JUDGE MAY: Very well. We'll consider those
15 too. Perhaps you could let us have that document as
16 soon as possible.
17 MR. SAYERS: Yes, Your Honour.
18 JUDGE MAY: Yes, Mr. Nice.
19 MR. NICE: I think that's probably as far as
20 I can go today, I'm sorry to say.
21 We have, as the Chamber will see, made good
22 use of this week, because by and large administrative
23 matters have now been swept aside -- not swept aside,
24 but they have been dealt with or they are in the
25 process of being dealt with.
1 Despite the reduced time available to us,
2 below what we had forecast and until very recently
3 known about, I'm hopeful that we can get through all
4 the witnesses that we wish to get through.
5 On Monday, we have a full day, for sure;
6 indeed, I think we're going to have full days Monday,
7 Tuesday, and Wednesday of next week. But what I will
8 attempt to do is to take the witnesses, for example,
9 starting with Landry, as briefly as I can in chief,
10 getting them to adopt, so far as is permissible and
11 necessary, the balance of any summary as an accurate
12 narrative of matters broadly covered elsewhere, and
13 that should, I hope, enable us to deal with those two
14 witnesses on Monday, probably not even spilling over
15 into Tuesday. That's my hope.
16 JUDGE MAY: Yes, Mr. Sayers.
17 MR. SAYERS: Your Honour, Mr. Stutt and
18 Mr. Landry are going to be substantial witnesses.
19 Mr. Landry, for example, testified in Blaskic for about
20 five days. Now, we don't intend on spending anywhere
21 near that amount of time, but I should alert the Court,
22 I think, of all the witnesses that are lined up from
23 here on in, to the end of the Prosecution's case, those
24 two will probably be the most substantial from the
25 cross-examination perspective. Everyone else, as far
1 as I can tell, will be relatively short, but not those
3 JUDGE MAY: Very well. We'll adjourn now
4 until Monday morning. I'll return the Rules to the
5 legal officer, please.
6 --- Whereupon the hearing adjourned at
7 12.43 p.m., to be reconvened on Monday,
8 the 28th day of February, 2000, at
9 9.30 a.m.