Tribunal Criminal Tribunal for the Former Yugoslavia

Page 23795

1 Thursday, 3 August 2000

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.35 a.m.

6 JUDGE MAY: Yes, let the witness take the declaration.

7 THE WITNESS: [Interpretation] I solemnly declare that I will

8 speak the truth, the whole truth, and nothing but the truth.

9 JUDGE MAY: If you'd like to take a seat.

10 WITNESS: ANASTAZIJA PROTZ

11 [Witness answered through interpreter]

12 JUDGE MAY: Yes.

13 MR. KOVACIC: Thank you, Your Honours.

14 Examined by Mr. Kovacic:

15 Q. [Interpretation] Good morning, Mrs. Protz. For the record, will

16 you please repeat your name and surname and tell us when and where you

17 were born?

18 A. My name is Anastazija, maiden name Blazevic, and now Protz, born

19 on the 25th of March, 1968 in Zenica.

20 Q. Have you ever testified in court?

21 A. No.

22 Q. So please feel at ease. You are married and you are now living in

23 Germany; is that correct?

24 A. Yes.

25 Q. Since when have you been living in Germany?


Page 23796

1 A. Since the end of 1992.

2 Q. Are your parents in Bosnia?

3 A. Yes, my parents are still living in Bosnia.

4 Q. Where are they living?

5 A. In Zenica.

6 Q. Mrs. Protz, at the end of 1991 or the beginning of 1992, you were

7 in the catering business. Your father leased a bar in the bowling alley

8 of the hotel in Vitez; is that correct?

9 A. Yes.

10 Q. Your father made this deal together with the local football club,

11 did he not?

12 A. Yes, he did.

13 Q. Could you describe where the premises of the cafe bar are in the

14 hotel?

15 A. Actually, it was in the room where the bowling alley used to be

16 which means in the basement.

17 Q. So the room was on the floor below the reception level of the

18 hotel; is that correct?

19 A. Yes.

20 Q. So you would enter the area by going down some steps right behind

21 the main entrance to the lobby leading downstairs; is that correct?

22 A. Yes.

23 Q. Thank you. You are aware that sometime in mid-May 1992, the

24 municipal headquarters of the HVO of Vitez moved into the hotel.

25 A. Yes, I know that some people moved in. Who exactly they were, I


Page 23797

1 cannot tell you.

2 Q. You didn't know the exact name of that organisation?

3 A. No.

4 Q. But you knew it was an HVO body involved in defence?

5 A. Yes.

6 Q. Can you tell us the names of some people you would see coming

7 there occasionally among the guests?

8 A. There were a great number of guests. Among others, I do remember

9 Mario Cerkez, of course, Marijan Skopljak.

10 Q. Was this a public cafe?

11 A. Yes, of course. It was open to everyone.

12 Q. Could you infer from anything at all that Marijan Skopljak was the

13 number one man in that institution that had its offices in the hotel which

14 we call the headquarters?

15 JUDGE MAY: These may be controversial matters so don't lead. Ask

16 who was the number one. And Mr. Kovacic, from now on, stop leading and

17 just ask the witness to give the evidence. Don't give it yourself.

18 MR. KOVACIC: [Interpretation] I apologise.

19 Q. Let me repeat the question. Were you able to infer, on the basis

20 of any kind of indication, who was the number one man, some kind of

21 hierarchy among them?

22 A. Let me tell you. In those days, in my personal view -- it

23 actually didn't really interest me who was number one, but one could see

24 that when Mr. Skopljak appeared, he seemed to be the dominant figure and

25 that people showed him special respect. That is what I was able to


Page 23798

1 observe.

2 Q. Thank you. Do you remember an incident that occurred in the

3 coffee bar?

4 A. Yes, I do very well.

5 Q. And when did this happen according to your recollection?

6 A. I can't remember now the exact date when it happened.

7 Q. The month will suffice.

8 A. I think it was sometime in May.

9 Q. In May 1992?

10 A. Yes.

11 Q. Could you perhaps describe to us in two or three sentences what

12 happened in the coffee bar that evening?

13 A. That evening the coffee bar was working as it used to do

14 normally. There were quite a number of guests. It was rather late. And

15 very late, three young men dropped in. Among them was Petak, Senad Petak,

16 and the late Samir Trako, and another young man whom I didn't know, and I

17 don't know his name.

18 Q. You mentioned Senad Petak and Samir Trako. Had you known them

19 from before?

20 A. Yes, I did. They used to come before, too.

21 Q. In what kind of condition were they when they arrived?

22 A. They were obviously tipsy because it is already rather late.

23 Q. You said there were a lot of people there. I know that you can't

24 tell us exactly how many, but can you give us a rough idea? 10, 20, 50?

25 Your best estimate.


Page 23799

1 A. I can't tell you exactly, but as far as I can remember, some 40 or

2 so guests were present, perhaps a little more or a little less.

3 Q. Do you remember anything happening as a result of which the HVO

4 guard intervened?

5 A. Yes, I do remember. When they came, it was late. They were

6 rather drunk, and they ordered drinks, and they wanted me to change the

7 music. I don't know where they had been before, but probably their mood

8 had changed in the meantime, and I didn't want to change the music. Then

9 they started throwing glasses around, breaking glasses, shouting and

10 yelling.

11 Q. Who threw glasses before your feet?

12 A. Petak did.

13 Q. I'm just checking the transcript because we overlapped a little,

14 so just wait a moment after my question so the interpreters have time.

15 So Petak was throwing the glasses. And who was yelling?

16 A. Petak was yelling.

17 Q. Did anyone intervene to calm him down?

18 A. Yes. Not straight away. He yelled and shouted, and he said if I

19 didn't change the music he would change it himself, and then Mario Cerkez

20 headed towards him to calm him down.

21 Q. What did he do? Did he treat him roughly? Did he try to persuade

22 him with words? Could you explain that in a couple of sentences?

23 A. Well, you know how things are in such situations. They approach

24 him slowly, Mario Cerkez and the others, not all the others, but a couple

25 of other men, who tried to calm him down saying that he wasn't right, that


Page 23800

1 he should calm down, that he shouldn't treat me in that way, and so on.

2 Q. What actually appeased the situation?

3 A. When such an incident occurs, you know what the situation is,

4 everybody's involved; people are talking to one another at the same time.

5 And then the guard on duty came down and fired into the ceiling, and he

6 said if we didn't calm down, he would throw us out, all of us.

7 Q. Who was the guard on duty who fired into the ceiling? Did he come

8 right down into the coffee bar, or did he stop halfway down the stairs?

9 A. He was about midway down the steps.

10 Q. And this stairway is open in relation to the area where you were;

11 I mean, you can see it, can't you?

12 A. Yes.

13 Q. You said he fired into the ceiling and said something, he made a

14 kind of order.

15 A. Yes. He said, unless we all calm down, we would all have to go

16 out, and he would close the coffee bar.

17 Q. And that is what brought the situation back to normal, is it?

18 A. Well, yes, naturally. Everyone turned around and there was a kind

19 of lull.

20 Q. After that, did the atmosphere in the coffee bar become normal

21 again, or did it not?

22 A. Yes. The situation became more peaceful, but the late Darko

23 Kraljevic gave me a sign that I should go away, and so I went up the same

24 steps where the guard was, but I was looking back to see what was

25 happening down there.


Page 23801

1 Q. This warning, your departure, did this come immediately after the

2 incident was overcome, or how much later? How much after the incident was

3 calmed down? When did Darko Kraljevic tell you to go?

4 A. I can't tell you exactly. When the guard on duty fired, of course

5 everyone stopped still, and then he was saying if we didn't calm down, we

6 would go out. And that's when Darko Kraljevic gave me a sign to go away,

7 to go upstairs, and I went up. I can't tell you exactly how much time had

8 gone by in the meantime.

9 Q. Mrs. Protz, could you tell me one thing: Were you the only lady

10 in the coffee bar at the time?

11 A. I'm sorry, but I'm not sure whether I was the only one, whether

12 there were any other girls around. But in any event, I was the only one

13 facing them on the other side of the bar.

14 Q. To make things quite clear to the Court, you were working in that

15 coffee bar, were you not?

16 A. Yes, I was working there with my father.

17 Q. Did you have other employees, waiters, men and women?

18 A. Yes. Yes, there were others, too.

19 Q. But you can't remember whether any other staff members or guests,

20 women guests, were there?

21 A. Among the personnel, I'm sure there were no other women; but among

22 the guests, I'm not quite sure whether there was any other women present.

23 Q. You said that when you started going upstairs, you turned around.

24 Why did you do that? What did you want to see in particular?

25 A. You mean why I was looking back to see what was happening down


Page 23802

1 there? Well, probably due to female curiosity, I don't know. I simply

2 wanted to see whether things were peaceful.

3 Q. Mrs. Protz, are you sure that you were the first person, that no

4 one went upstairs before you or with you?

5 A. No, no one went upstairs with me at that point in time. I went

6 alone.

7 Q. On that basis, are you quite sure that Mario Cerkez stayed behind

8 you in the coffee bar together with the others?

9 A. Yes, I'm sure.

10 Q. When you reached the ground floor, the lobby of the hotel and the

11 entrance, what happened then?

12 A. A couple of minutes after me, very briefly after that, I don't

13 know exactly, I was standing there and peeping downstairs to see what was

14 happening, and a couple of minutes later Senad Petak and the late Trako

15 Samir headed up as well. As I was standing there, Petak moved up to me.

16 We started talking, what had happened, why it had happened, because Petak

17 was an old guest, though he was known locally as a quarrelsome person, but

18 I think that that particular incident was provoked by alcohol.

19 Q. Did you get the impression talking to him that he was actually

20 trying to apologise?

21 A. Yes, yes.

22 Q. So that was the clear impression you had?

23 A. Yes.

24 Q. When you were talking to Senad Petak, can you describe the actual

25 position you were in, where you were standing?


Page 23803

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French pagination

15

16

17

18

19

20

21

22

23

24

25


Page 23804

1 A. At that moment we were outside, outside on the steps. You see,

2 there's an entrance to the hotel with a glass door, and to the left, a

3 couple of metres to the left are the steps leading down to the bowling

4 alley, and we were standing on the steps leading up to the hotel.

5 Q. Let us make it quite clear. You said, "We were standing." Who?

6 A. Myself and Senad Petak.

7 Q. From that position where the two of you were standing and talking,

8 as you said, did you have a clear view of the hotel lobby where the steps

9 lead downstairs, and the rest of the lobby and the reception desk?

10 A. Yes.

11 Q. So you have an absolutely clear view of the whole area?

12 A. Yes.

13 Q. Were there any people there?

14 A. No, not at that moment.

15 Q. So it was quite empty?

16 A. Yes.

17 Q. At that moment while you were talking to Senad Petak, did you see

18 that HVO guard anywhere?

19 A. No. Just then, no.

20 Q. And Samir Trako who came with Petak, as you said, upstairs to the

21 ground floor level, did he join you in the conversation?

22 A. No, he didn't.

23 Q. Did you see where he went to?

24 A. He went to the left. As he came from the coffee bar, Senad Petak

25 went towards me, and I was standing to the right, and Trako went to the


Page 23805

1 left.

2 Q. So when you merged to the top of the steps, to the right is the

3 way out; to the right is the way out from the hotel, and to the left is

4 the main lobby of the hotel?

5 A. Yes.

6 Q. So you said that Samir Trako turned left towards the main lobby

7 area, the reception area, and you saw that with your own eyes?

8 A. Yes, I did.

9 Q. What happened then?

10 A. Just then when I and Senad Petak were talking, actually, when he

11 was trying to explain why and how this had happened, we heard a shot

12 almost immediately after they had come out of the coffee bar, when Senad

13 Petak came towards me, and Samir Trako went to the other side.

14 Q. And what did you do then?

15 A. Well, the normal reaction was for all of us to run in that

16 direction.

17 Q. Who do you mean "we"?

18 A. Myself and Senad Petak in that -- on that occasion.

19 Q. So you went in what direction? Could you describe it to us?

20 A. Straight ahead. We were outside, so we were facing the entrance,

21 and the lobby is straight ahead. Towards the spot.

22 Q. So you mean towards the reception of the hotel?

23 A. Yes.

24 Q. At the moment when you set out, are you sure whether anybody was

25 walking upstairs, or had they all remained downstairs in the coffee bar as


Page 23806

1 you told us a minute ago?

2 A. Well, as we set out towards this place, they also all ran from

3 downstairs towards the upstairs, and also the people from the reception

4 desk, and of course all of those from the bowling alley ran to see what

5 had happened.

6 Q. When you got to this central part of the main lobby -- well, first

7 perhaps let us clarify something else. This central part of the lobby,

8 from the entrance towards the reception desk is actually a broad

9 passageway towards that part where the reception desk is; is that right?

10 A. Yes, that's right.

11 Q. Now that you got to this central part of this passageway just in

12 front of the place where the reception desk is, what did you see?

13 A. As soon as we heard the shot, we turned around and saw Samir lying

14 on the ground. We could see that immediately. As soon as we turned

15 around to see what was going on we saw him lying on the ground, and of

16 course we ran towards him.

17 Q. Were you shocked in a way by the fact that you saw a dead man

18 lying on the ground?

19 A. Yes, of course I was in a state of shock. I had never seen

20 anything like it but then we didn't even know what had happened. These

21 were seconds or perhaps split seconds.

22 Q. Did you see a man, a person, any person with a gun, a rifle, any

23 weapon? Could you conclude who it was that shot the man who was lying on

24 the ground?

25 A. No, not at that moment, because we had focussed on him when we saw


Page 23807

1 him lying on the ground. I can't describe this feeling to you when we saw

2 him.

3 Q. And now during the next few minutes, did you see this HVO guard at

4 all? What was happening to him?

5 A. No.

6 Q. At the moment when you came to this place from the entrance, quite

7 a few people were gathering there, right?

8 A. Yes, of course. These were seconds. It was a matter of seconds.

9 Everybody came there just as we ran to see what was happening there, also

10 the people from the reception desk ran there, and then also my guests from

11 downstairs, from the bowling alley. In a moment's time, everyone showed

12 up there.

13 Q. Can we say that from your point of view, was this lots of

14 commotion? Was there a confusion?

15 A. Well, of course there was. It was a situation, a situation where

16 everyone wants something. It's moments, it's seconds. Everybody is

17 trying to see what's going on. Some tried to help, others were moaning,

18 others were saying that it was a car.

19 Q. All right. Perhaps let us try to clarify with a few questions

20 what you said. You said that some tried to help. Did you see anyone

21 trying to give first aid to this late person?

22 A. Yes. Yes. Everybody was doing something. These are moments when

23 nobody realised what had happened. Simply the most important thing was to

24 help. At that moment, he was the most important.

25 Q. Did you see any traces of blood on the wounded person himself or


Page 23808

1 on the ground or on the wall, anywhere? Did you see any blood anywhere?

2 A. I can't really say now. Perhaps I did, but in a moment like that,

3 well, I can't really say right now. I simply can't.

4 Q. Who took the late Samir out of the hallway? What happened to him

5 then?

6 A. What happened? Well, of course everybody tried to help out.

7 "Let's bring a car. We have to take the man to hospital." But who drove

8 him away, that, I really can't say for sure now. A few young men. For

9 me, it was all like a bad dream, everything that was happening at that

10 moment.

11 Q. Do you remember after this confusion that a few men did lift the

12 wounded man and carry him towards the car?

13 JUDGE MAY: Let the witness tell us what happened, please.

14 Just tell us what happened. Mrs. Protz, tell us what happened in

15 your own words. There was confusion. We've got the picture and of course

16 he was shot. You don't have to be asked that. Now, what happened?

17 A. Your Honour, what happened was the following: We heard a

18 gunshot. A man was lying on the ground. Everyone panicked. Everyone ran

19 up to him. Everybody wanted to do something, didn't know what was going

20 on with him. You know what it's like when there are many people around a

21 man and everybody is trying to do something.

22 I told you somebody was screaming. Somebody was crying out.

23 Others were swearing. And then everybody tried to -- well, these are

24 moments, seconds. It didn't last very long this commotion, this

25 confusion. Everybody was surprised. They didn't expect anything like


Page 23809

1 that. No one expected anything like this. A gunshot was heard.

2 Everybody ran up to him and when they saw him lying on the ground, some

3 were giving him aid, but these were minutes, seconds. They managed to

4 lift him and he was taken to a car and to a hospital wherever.

5 JUDGE BENNOUNA: [Interpretation] I do not think that you told us

6 precisely. It seems to me at least to the Court you did not. When you

7 saw Samir Trako, what position was he in when he was hit? Was he lying

8 face to the ground or was he lying on his back when you arrived there?

9 What was the position that his body took?

10 A. Your Honour, I think -- I think, I cannot tell you for sure now.

11 It happened eight years ago after all. I can't forget it either, but I

12 think that he was lying on his back. I think that the body was lying on

13 the back.

14 JUDGE MAY: After he was taken to hospital, what did you do? What

15 happened to you?

16 A. Your Honour, when they drove him away, we were all shocked; I, in

17 particular. Then I returned to the bowling alley and then somebody told

18 me that I wasn't supposed to touch anything because in the coffee bar

19 there were still chairs that were overturned, broken glasses as well, and

20 also the coffee machine was broken. And they told me that I shouldn't

21 touch anything, that the police would come and that I should leave

22 everything exactly the way it was and not touch it.

23 JUDGE MAY: Yes, Mr. Kovacic.

24 MR. KOVACIC: [Interpretation]

25 Q. Do you remember whether somebody specifically told you to go back


Page 23810

1 downstairs to the coffee bar or did you decide that on your own?

2 A. Well, what do you mean on my own? Well, after all of that, I

3 simply went downstairs and Darko Kraljevic told me not to touch anything,

4 and he came downstairs as well and some other people. And also my sister

5 joined us at that point. She had been at the reception desk while this

6 was happening.

7 Q. Your sister worked at the reception desk and she was on that night

8 shift?

9 A. No. No. She was sitting with a girl who was working there.

10 Q. How long did you stay down there at the coffee bar?

11 A. We stayed all night, actually, for the rest of the night until the

12 morning. We were there until the morning.

13 Q. Did the police come in?

14 A. Yes, but in the morning.

15 Q. Can you tell which police this was, was it the military or the

16 civilian police or both?

17 A. There were lots of them. All of them were there.

18 Q. You made a short statement then. Who did you make this statement

19 to? Who asked you for a statement?

20 A. Well, some of them. I don't know. I can't say now. I can't say

21 exactly. I don't remember. I didn't know these people, but some of

22 them -- somebody who was there.

23 Q. Was this a person in civilian clothes or uniform that you gave the

24 statement to, can you remember that?

25 A. I can't remember.


Page 23811

1 Q. Do you know -- actually, the person you made this statement to, it

2 was obvious that it was an official, right?

3 A. Yes.

4 Q. Mrs. Anastazija, among the people who were up on the stairs as you

5 were setting out and you heard the gunshot and you said that you were

6 moving towards the lobby, and at the same time there were people coming up

7 from downstairs from the coffee bar, did you perhaps notice Mario Cerkez

8 among them?

9 A. Yes. Mario Cerkez did come. Everybody was running. Nobody was

10 coming, everybody was running.

11 Q. So Cerkez was there too?

12 A. Yes.

13 Q. After you made this statement, did you stay in the hotel or did

14 you go?

15 A. I went home. I went to sleep. At any rate, I went to get some

16 rest because this was an entire night, and to experience something like

17 that, to live to see something like that and then to wait all night, it

18 was really a lot.

19 Q. Mrs. Protz, at the time you resided in Zenica?

20 A. Yes.

21 Q. Was that throughout this time while you worked in this coffee bar

22 and lived in Vitez?

23 A. Yes.

24 Q. But you did not commute every day?

25 A. Well, it depended. Sometimes I did, sometimes I didn't.


Page 23812

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French pagination

15

16

17

18

19

20

21

22

23

24

25


Page 23813

1 Q. You had accommodation in Vitez so if you were tired, you could

2 stay there, but sometimes you could also go home, right?

3 A. Yes, that's right.

4 Q. For how long did you and your father have this coffee bar in this

5 building at the hotel?

6 A. Well, until the end of 1992.

7 Q. After that, when you left that business, did you leave Vitez

8 altogether?

9 A. I left a bit before that. I left a bit before that, and then all

10 of that worked for another ten days or two weeks and then my father gave

11 up.

12 Q. Can you give us the approximate time when you left Vitez in 1992,

13 you, personally? I'm not talking about the dismantling of the coffee shop

14 business.

15 A. I left on the 8th of December.

16 Q. Do you link this particular date to something special since you

17 remember it so well?

18 A. Well, no, not really.

19 Q. Thank you. Tell us, Mrs. Protz, after this event, did anyone ask

20 you officially to make a statement about this event and to talk about it?

21 A. No.

22 Q. Mrs. Protz, did you know Mario Cerkez before that event?

23 A. Yes.

24 Q. How well did you know him?

25 A. To the extent to which I knew all my guests.


Page 23814

1 Q. So one can say superficially?

2 A. Yes.

3 Q. To the extent to which you knew him, what was your assessment of

4 him as your guest? How did he behave?

5 A. Well, that's what I wanted to say. It's the only kind of

6 assessment I can make. Well, how did I assess him? As a normal, decent

7 intellectual person.

8 Q. Mrs. Protz, did you ever notice him behave rudely as a guest?

9 A. No.

10 Q. Do you know anything about the relationship between Mario Cerkez

11 and Darko Kraljevic?

12 A. No.

13 Q. You said -- I'm sorry. Did you know Kraljevic from before?

14 A. Yes.

15 Q. Did you know him better or less or --

16 A. Well, listen, all of these people who came to the coffee bar

17 before as well, from time to time, people who lived in Vitez. I knew them

18 like I knew all the other people I knew there.

19 Q. Do you perhaps remember that before that occasion, you saw Cerkez

20 and Darko Kraljevic together?

21 A. I didn't understand you, before what occasion?

22 Q. Before that event, did you see Kraljevic and Cerkez together?

23 A. Perhaps sometimes, or if they would be in the same company or if

24 not, I don't know. Nothing special.

25 Q. Do you perhaps recall that evening when this unfortunate incident


Page 23815

1 occurred, were Cerkez and Kraljevic in the same company or not?

2 A. No, they were not in the same company. Well, you can say that

3 everybody sitting in the same coffee bar is one company, but no, they were

4 not sitting together.

5 Q. Thank you, Mrs. Protz. I have no further questions.

6 MR. SAYERS: Mr. President, Mr. Kordic has no questions for

7 Mrs. Protz.

8 Cross-examined by Mr. Nice:

9 MR. NICE:

10 Q. Mrs. Protz, we don't have a plan of the hotel, although it appears

11 the investigating officers who turned up the next day drew one, so can you

12 just help us. We got a description of it, and perhaps you'll help us

13 confirm that we understand it correctly.

14 If you were standing at the front doors of the hotel looking into

15 the hotel, am I right in thinking that there would be a cloakroom of some

16 kind over towards where Mr. Kovacic [sic] had been standing or sitting?

17 No. All right, try again. Would I be right in thinking that the

18 stairs down to the bowling alley and the bar are over in that left-hand

19 direction?

20 A. Could you please repeat this once again?

21 Q. Yes. You're standing at the front of the hotel with some glass

22 doors in front of you. In order to get to the bar and the bowling alley,

23 do you come through the doors and then turn left and go down some stairs?

24 Is that right? Is that correct, I mean?

25 A. Yes. I passed through the entrance door because I'm in front of


Page 23816

1 the entrance door -- sorry. We passed through the entrance door, and then

2 it is to the left immediately.

3 Q. Immediately, thank you. Beyond the stairs, is there another room

4 which was used by the HVO at that time and had been, I think, a reception

5 area, a reception room?

6 A. Yes, yes, there is.

7 Q. Straight ahead of you is the entrance to the hotel; is that

8 correct?

9 A. In this case when I was standing there, the entrance to the hotel

10 was as far away from me as this table is here, this desk, because I was

11 standing right in front of the entrance to the hotel.

12 Q. Again, if you came into the lobby of the hotel, was there a desk

13 on the right-hand side, perhaps somewhere where we're standing at the

14 moment -- or where I'm standing?

15 A. Yes, there was.

16 Q. And was this the desk beside which perhaps the guard, the HVO

17 guard, would normally stand?

18 A. No.

19 Q. Where would the HVO guard normally stand?

20 A. He would usually be inside, in the room that was for them.

21 Q. Right. Now, when you found -- let's carry on using this courtroom

22 because it makes it more -- it makes it easier for some of us to

23 understand.

24 The door to this room, can you sort of indicate where it would be

25 by pointing out something in this courtroom? You're standing just outside


Page 23817

1 the hotel, can you point out how near or far that room would be from where

2 you were standing? Indicate something in the room if that will help.

3 A. Well, approximately from here where I am to where the Honourable

4 Judges are.

5 Q. Right. And that's slightly to your left-hand side?

6 A. Yes.

7 Q. And before you reach that room and the door to it, there's the

8 stairs coming up from the bar?

9 A. Those are my stairs, the ones that I take.

10 Q. That's right, yes.

11 A. Yes, yes.

12 Q. And when you found the man lying on his front or his back, where

13 was he in relation to the stairs, where was he in relation to the entrance

14 to this other room?

15 A. He was right in front of the door that led to that room. Just

16 opposite the door, something like that.

17 Q. Okay. And was that door a glass door or a solid door?

18 A. I can't even remember any more what kind of door it was.

19 Q. All right, all right. Was there a cigarette machine in the lobby

20 somewhere?

21 A. No.

22 Q. Are you sure about that?

23 A. I'm sure about that. We haven't got anything like that.

24 Q. I have only a few questions really to ask you, I think.

25 First of all in general, at this time, in the spring of 1992,


Page 23818

1 Muslims and Croats were still able to socialise together easily enough,

2 correct?

3 A. Yes.

4 Q. These three young men, Petak, Trako who died, and one other, were,

5 as you understood it, Muslims?

6 A. Yes.

7 Q. Can you remember now whether the third man was, in fact, a

8 relation of the dead man and was also another Trako by surname?

9 A. I can't remember. It's not that I can't remember. Even at that

10 time, I did not know him. I didn't even know his name.

11 Q. All right. When they came into the bar, Croat music was being

12 played, wasn't it, or music that they certainly perceived as being Croat

13 by topic or type?

14 A. No, no, I don't think so. Actually, now I can't even remember

15 which music it was, but I don't think so, but ...

16 Q. But they certainly came over, and they asked for the music to be

17 changed?

18 A. Yes.

19 Q. And did they also talk to you anything -- or say anything to you

20 about what they were doing, or how they were fighting in Bosnia despite

21 the fact that they were Muslims? Anything like that? Do you remember

22 anything of that sort being said?

23 A. No. No.

24 Q. But back to the music, did Cerkez get involved in their request to

25 have the music changed?


Page 23819

1 A. No, not as far as I can remember, no.

2 Q. What was his involvement in the music and the initial cause of

3 unhappiness at all, then?

4 A. Who are you referring to now when you say "involvement"? Whose

5 involvement?

6 Q. Cerkez, Cerkez.

7 A. Mario Cerkez reacted only when they became a bit too quarrelsome.

8 Actually, when glasses already started flying about, and when they had

9 already overturned the coffee machine, when they started to shout and

10 yell, and when they said that if I wouldn't change the music, he would

11 change it himself.

12 Q. That was a debate they were having, or a discussion, or an

13 argument they were having with you, correct?

14 A. Yes.

15 Q. Now, it's not immediately obvious how having an argument with you

16 would lead to them throwing glasses around. Had some men got involved in

17 this discussion about the music before, as you say, glasses were being

18 thrown around?

19 A. No, nobody got involved in this discussion. This happened a few

20 minutes before they arrived -- because they already arrived in a tipsy

21 state. They ordered drinks, they wanted to change the music, and that's

22 when it all started, immediately.

23 Q. I don't challenge that they were tipsy or anything like that, but

24 what I'm interested in seeing if you can help us with is this: Did

25 anyone, and I'm going to suggest to you it was Cerkez, come to you and


Page 23820

1 join in the debate about music and insist that the original Croat music be

2 played?

3 A. No.

4 Q. And I'm also going to suggest to you that at that time, Cerkez was

5 offensive about Muslims and used the word "balija," which we know to be an

6 offensive term. Do you remember that happening?

7 A. No, that's not what happened. I don't remember that.

8 Q. Well, their behaviour, what had you done to try and have them

9 removed from the bar if they were the only ones who were causing

10 difficulties?

11 A. I didn't try to do anything. I just tried to talk to them. And

12 at that moment, actually Petak, Senad Petak, not they, when those glasses

13 started flying about, Mario reacted and the rest. Not only Mario, there

14 were other men who were standing by the bar next to them.

15 Q. Did the incident reach the position where Senad Petak and Cerkez

16 almost agreed to have a fight? Do you remember that happening?

17 A. No. They did not start having a fight. The situation was --

18 well, you know what it's like. There was pushing around, and somebody was

19 saying, "Calm down, calm down," and then using his hands also. And then

20 this other one would come up and say, "Calm down," and this other one

21 said, "Why are you telling me to calm down? He's supposed to calm down."

22 So there was this kind of commotion, but there was no fighting.

23 Q. Cerkez was, what, in uniform, if you can remember?

24 A. I can't tell you for sure, but I think he was in uniform.

25 Q. And he had a pistol with him at his hip?


Page 23821

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French pagination

15

16

17

18

19

20

21

22

23

24

25


Page 23822

1 A. No, no, no. Weapons were not allowed.

2 Q. I was going to ask you whether there was, and this is my last

3 question, really, for this part of the incident, but I was going to ask

4 you if you can recall this. Think back. In the course of people pushing

5 one another about, as you described it, did someone say to Cerkez they'd

6 have to fight, but only if he took his gun off?

7 A. I can't remember that, no.

8 Q. Now, the bar downstairs, just give us an idea of the size of it.

9 Use this room again. Is it half the size of this room, a quarter the size

10 of this room, the size of this room? Tell us.

11 A. That area where we were was, well, like this room here.

12 Q. The guard from upstairs who was armed with the rifle came

13 downstairs, didn't he, or came partway down the stairs?

14 A. Yes, part.

15 Q. Was there a lot of noise in the bar with people shouting and

16 throwing glasses, as you say?

17 A. Not people. Glasses flew around only when Petak reacted to me.

18 And then in this pushing around, shoving around, and trying to calm down

19 the whole situation, it was then that a chair overturned here and there,

20 that tables are moved. But I can't remember all that happened. It did

21 not last long.

22 Q. When the guard came downstairs either to attract attention or make

23 his point, did he in any way fire into the ceiling, anything like that?

24 Do you remember that happening? Did it happen?

25 A. Yes, he did fire a bullet into the ceiling.


Page 23823

1 Q. I think that brought some of the ceiling down and no doubt

2 focussed people's attention on what he wanted. Would that be right?

3 A. Well, I wouldn't really know. I don't know if part of the ceiling

4 fell down. But naturally when you hear a shot, everybody will look in

5 that direction. Nobody saw him arrive until he fired that shot.

6 Q. Now, you then in due course went upstairs, and at the time you

7 went upstairs, everybody else was still in the bar; is that right?

8 A. Yes.

9 Q. And that includes Cerkez, doesn't it? He was still in the bar.

10 A. He was, yes. I went upstairs by myself because I was given the

11 sign to get away, and I was alone when I went to the staircase.

12 Q. It's my mistake for not following this, Mrs. Protz, but how soon

13 after that do you say you were joined by any of these three young men?

14 A. I couldn't really pinpoint the time, but very shortly afterwards.

15 I don't know. But not much time had passed.

16 Q. Was it one of them, two of them, or three of them; who joined you?

17 A. As I was standing outside, they came upstairs and Samir Trako went

18 to the left and Petak started towards me. But I can't remember because I

19 did not know that boy. I don't know where he was. What I still do

20 remember, I mean that third young man who was there, I think he came

21 together with Senad.

22 Q. Right. And have I got this right, that you actually went through

23 the doors, the glass doors of the hotel so that you were outside either on

24 the steps or on the street?

25 A. Yes. When I started up the stairs, it was then that I came out.


Page 23824

1 Q. So you've come through the glass doors, the glass doors have

2 closed behind you, and you think one or possibly both of the other young

3 men were with you?

4 A. The door did not close, but Senad Petak reached me where I was

5 outside, and the door remained open or rather it was open.

6 Q. The guard, do you know his name as a matter of fact, the HVO guard

7 who was there?

8 A. No. No, I don't.

9 Q. Can you help us with where he was in the lobby area? We've got a

10 few bits of geography, we've got the room, the stairs, and the table over

11 here. Can you help us with where he was?

12 A. At that moment, I did not see him. I don't know where he was or

13 rather I wasn't paying attention. I don't know.

14 Q. And then outside the hotel you what, started to talk to one or

15 other of these two young men?

16 A. Yes. I started talking with Senad Petak because he tried to

17 apologise for the things that had happened.

18 Q. Well, are you sure it was Senad Petak and not the other young man?

19 A. I am sure.

20 Q. Just then you heard that -- just tell us again. You turned

21 around, what did you see?

22 A. At that moment, naturally, we saw late Trako on the floor and we

23 immediately started in that direction.

24 Q. Did you see the guard?

25 A. No, not at that moment.


Page 23825

1 Q. When did you next see the guard?

2 A. I don't know that I saw him at all in all this commotion, as all

3 this was happening, as they were carrying him away. I simply don't know

4 that I saw him.

5 Q. You turn around, here's the lobby. Trako is lying on the floor

6 over there as we imagine it, and it's a long time ago. Was there anybody

7 else in the lobby at all?

8 A. I don't remember. I don't remember because these are moments,

9 fleeting moments as it happened. Those who were at the reception or from

10 behind the corner arrived, and we arrived from this side and I -- I just

11 don't remember.

12 Q. So there may have been one person in the lobby. There may have

13 been two or three people in the lobby. Your attention was focussed on

14 what you had heard and what you saw lying on the ground.

15 A. At that moment when we were standing outside, there was nobody in

16 the lobby. While we stood outside, there was nobody in the lobby.

17 Q. So if you had been asked by a friend immediately afterwards or

18 indeed when you were asked by the investigator the following day, how

19 could you explain the killing of the man Trako? How did it happen?

20 MR. KOVACIC: Your Honour, I hate to interrupt, but I don't think

21 that witness is here to make conclusions on how the murder happened. The

22 witness is here to give us the facts.

23 JUDGE MAY: Well, she can say if she had any ideas. It's a

24 perfectly proper question. If she doesn't, she can say she doesn't know.

25 MR. NICE:


Page 23826

1 Q. Mrs. Protz, can you help us at all? How did it happen?

2 A. Well, it happened just as I told you. That's how it happened.

3 Q. Let's eliminate a few things. From what you could see, he

4 certainly wasn't killed inside the room because he was lying outside the

5 room. That's the HVO room. He wasn't killed inside the room.

6 A. Correct.

7 Q. There's nothing that you saw to suggest that he was killed by

8 somebody from within the room firing out, for example.

9 A. I did not see it.

10 Q. And you have no recollection of any other people standing in the

11 lobby who may have been the people or the person who killed him?

12 A. No, not at that moment.

13 Q. You were, of course, completely shocked by what must have been a

14 horrible experience, I quite accept that. The next thing that you were

15 aware of was people coming up the stairs. Yes?

16 A. People were coming at that moment. It was all happening at one

17 and the same time. At the same moment when I started towards that place,

18 people from the reception, people from the coffee bar headed in that

19 direction. It was all happening at one and the same time. I wasn't

20 observing it. It was all happening at one and the same time.

21 Q. But presumably you'd been -- it had been suggested to you to leave

22 the bar downstairs because the situation was a bit ugly; would that be

23 about right?

24 A. Well, I guess so. Could be. I think so.

25 Q. You're not able to tell us the order in which people came up the


Page 23827

1 stairs, are you?

2 A. I can't, no.

3 Q. And of course because -- from what you've told us, there had to

4 have been someone in the area of the lobby or possibly in the room, but

5 certainly there had to be someone in that area to shoot Trako before you

6 turned around, didn't there?

7 A. Well, yes. Somebody had to be, yes.

8 Q. When you were asked if it was Cerkez coming up the stairs but -- I

9 must suggest to you you're not in a position really at this time to

10 remember one way or other who was coming up the stairs. It's just a

11 question of people coming up the stairs; wouldn't that be about right?

12 A. Yes. But I know that Cerkez was among them because he was one of

13 those people who were downstairs.

14 Q. Well, of course. He had been downstairs and, therefore, at some

15 stage, he had to come up but equally, there had to have been someone at

16 least in the lobby probably from downstairs who shot the man, and you

17 simply can't help as to who that was, can you, unless it was the guard

18 himself?

19 A. Well, in all likelihood, in all likelihood it was that guard

20 because he was the only one upstairs.

21 Q. Well, now, you didn't see the guard again?

22 A. No.

23 Q. Just thinking back, these are the last questions I'm going to ask

24 you about the incident itself, did you at any time catch sight of that

25 guard carrying his firearm? Think back. Did you either see him carrying


Page 23828

1 the firearm before you heard the shot that appears to have killed the man

2 Trako, or did you see him carrying his firearm afterwards or after you

3 turned around?

4 A. Not later. I saw him only at the time when he was in the coffee

5 bar downstairs when he fired at the ceiling, and not later on, and then he

6 went back upstairs.

7 Q. Very well. Who took charge of events, of the scene, and who took

8 charge of events after this had happened?

9 A. I can't tell you that. I don't know. Because when it happened,

10 everybody lent a hand, or everybody was there who was there to take him to

11 the hospital or -- what happened after that, I can't tell you because I

12 don't know.

13 Q. Well, you see, the two other young men who we've heard about, they

14 were arrested, weren't they? Did you see that? They had their hands tied

15 or handcuffed, and they were taken away. Do you remember that happening?

16 A. No. No. I don't remember it.

17 Q. You made a statement, obviously, to the investigators the

18 following day, didn't you? Mr. Kovacic has asked you about making a

19 statement; do you remember?

20 A. Yes.

21 Q. Was that a written statement or was that a statement that was, in

22 any event, written by someone? You don't know.

23 A. I can't remember now.

24 Q. You were advised to stay downstairs and you stayed downstairs all

25 night, didn't you?


Page 23829

1 A. Yes.

2 Q. Did you, at any time, try to come upstairs and come back to the

3 reception area of the hotel?

4 A. I think -- I can't remember exactly, but I think that I went to

5 the room once, but -- or something like that, but I'm not sure. I can't

6 really remember.

7 Q. And if you can remember at all, who was in the room -- that's the

8 room over there, is it? The HVO room. Who was there? Who was in charge

9 there?

10 A. I don't know what which room you have in mind. When I said I went

11 to a room, I meant the room that I lived in --

12 Q. Oh, I see.

13 A. -- and into this room, I did not go into that one.

14 Q. You see, we know that the authorities weren't allowed to come and

15 inspect the premises until the following morning, and the reasons given in

16 the report for that was that that was for security reasons. Was anything

17 said to you or did you pick up anything being in the hotel about why the

18 investigation of this scene of a death should have been put off until the

19 following morning?

20 A. No. I don't know. All I was told was to go down, not to touch

21 anything, and to wait.

22 Q. Then I think finally this: Rumours circulated in Vitez about this

23 killing, didn't they?

24 A. I guess so. They must have.

25 Q. Well, you were living there. Was one of those rumours about

 


Page 23830

1 Cerkez?

2 A. I don't know.

3 Q. Thinking back, was Cerkez perhaps rather more centrally involved

4 in the disagreement downstairs with these young men than others? Was he

5 pretty much at the centre of the row, of the argument?

6 A. No. No.

7 Q. And finally, the guard, you may not know his name, but the guard,

8 did you see him around again at liberty in the area of Vitez

9 notwithstanding the inference that you drew that he must have been the

10 killer?

11 A. No, I did not see him.

12 MR. NICE: Thank you very much.

13 MR. KOVACIC: No, Your Honours, thank you, I really don't have any

14 questions. Thank you.

15 JUDGE MAY: Mrs. Protz, that concludes your evidence. You're free

16 to go. Thank you for coming to the International Tribunal to give it.

17 [The witness withdrew]

18 JUDGE MAY: We have the motions to deal with. It may be sensible

19 to take the break rather early. What we can do is just quickly have a

20 look at what we've got to deal with.

21 The outstanding matters are, as I understand it, the three Defence

22 motions connected with, all of them, with matters of disclosure. They can

23 conveniently be taken together. There is the motion in relation to

24 Witness DL and the exhibits. The other matters which I have in mind are,

25 there is a confidential matter from the Prosecution which it may be


Page 23831

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French pagination

15

16

17

18

19

20

21

22

23

24

25


Page 23832

1 convenient to deal with, the affidavits, and there may be an ex parte

2 application.

3 I think finally the question of the witness you wanted to call,

4 Mr. Kovacic. I'm being careful because I think he was -- he gave evidence

5 in closed session. Do you remember who I mean?

6 MR. KOVACIC: Certainly, certainly.

7 JUDGE MAY: But we can discuss it.

8 MR. KOVACIC: I would appreciate it very much if we can at least

9 touch this matter because that influences my planning for September,

10 certainly.

11 JUDGE MAY: So let's make sure that we do. I think those are all

12 the matters, unless there's anything anybody else has in mind.

13 MR. KOVACIC: Your Honour, if I may suggest, I would also try with

14 motion to eliminate all the evidences related to the murder in the hotel,

15 and I will tell you on what I'm basing that request.

16 JUDGE MAY: Very well.

17 MR. KOVACIC: I will be very brief on that.

18 JUDGE MAY: Yes. Well, we'll deal with that.

19 MR. NICE: All I was going to say was two things. First, I trust

20 you've got, and if you haven't, I think the registry will provide, a

21 little schedule on the affidavits. There are two, I think.

22 JUDGE MAY: We have it, we have it, thank you. Yes.

23 MR. NICE: Our position is the same in that, of course, we enter

24 our formal objection to anything that isn't agreed, pending conclusions of

25 the Appeals Chamber; but you'll see on these there will be no special


Page 23833

1 issues for us to raise, and it might be that they would take very little

2 of your time, given the practice of the Chamber in relation to other

3 affidavits.

4 Second, so far as the last matter Your Honour was dealing with

5 carefully with Mr. Kovacic, we still haven't had precise details so that I

6 can really follow it of what's wanted to be put in on that. It would help

7 us to have it actually detailed, preferably in writing, what it is they

8 want.

9 JUDGE MAY: It may be sensible. We can mention it in closed

10 session and deal with it that way.

11 Very well, we'll adjourn now. Half past 11.00.

12 --- Whereupon the hearing at 10.55 a.m.

13 to be followed by a Motion Hearing

14

15

16

17

18

19

20

21

22

23

24

25


Page 23834

1 Thursday 3 August 2000

2 Motion Hearing

3 [Open session]

4 [Accused entered court]

5 --- Upon commencing at 11.39 a.m.

6 JUDGE MAY: Sorry to keep you all waiting. We had another case to

7 deal with.

8 We'll turn first of all to the various Defence motions. There are

9 three motions filed on the 19th of July. They are all connected. There

10 is a motion to exclude the ECMM materials, a motion to exclude various

11 transcript, a motion to exclude -- or rather, to seek certification under

12 Rule 68, and there was also a motion which is still to be dealt with for

13 access to the Lasva Valley materials, closed session transcripts.

14 And summarising the position so that we may have it in mind from

15 the various pleadings which we have, the Defence say that they have been

16 denied access by the ECMM to their files, whereas the Prosecution have

17 such access, and therefore they say they are denied full equality of arms

18 and the right to a fair trial, and therefore all the exhibits and

19 testimony of the monitors should be excluded. Likewise, they say in

20 relation to the transcripts of the witnesses in the Lasva Valley cases,

21 that they haven't been able to gain access to those transcripts; they are

22 available to the Prosecution; and again, therefore, such transcripts

23 should be excluded on the basis of equality of arms.

24 They say in relation to these matters that counsel should certify,

25 Prosecution counsel should certify that Rule 68 has been complied with in


Page 23835

1 terms of exculpatory material, and a certificate should be produced in

2 writing.

3 The Prosecution say in response that equality of arms doesn't mean

4 absolute symmetry. They've had full disclosure, the Defence, of all

5 matters. Of course, it's a continuing obligation to disclose matters

6 which are exculpatory.

7 The Trial Chamber has already ruled on the transcripts and

8 admitted them, that essentially this is a fishing expedition by the

9 Defence, and say the Prosecution has no reason under the statute or rules

10 to disclose -- to exclude evidence because the Defence haven't had access

11 to some agency or other.

12 And finally in respect of certification, they say that assurances

13 have been made by counsel in Court, and that the Trial Chambers find those

14 assurances before to be sufficient and should not change its mind.

15 So that's a brief summary of the matters.

16 In relation to the motion for the access to the Lasva Valley

17 materials, it seems to me that we, as I indicated earlier, that we are

18 bound by the decisions of the other Trial Chambers in that matter.

19 There's nothing more we can do about it.

20 Now, Mr. Sayers, these are your motions. Is there anything you

21 want to say in addition to what you've already said in your pleadings

22 which we've read and I've summarised?

23 MR. SAYERS: Mr. President, as usual, the Court has summarised the

24 position tersely and accurately. Just a few comments that I would have to

25 make in connection with each of these motions.


Page 23836

1 If I may take the Rule 68 certification motion first. As we've

2 said in our papers and as the Court has previously indicated, the

3 Krnojelac case decided by Judge Hunt on November the 1st, 1999, provides

4 the basis of our motion. We would simply draw the Court's attention to

5 what we would argue to be the metamorphic case that is being put on

6 currently by the Prosecution. There's an apparently bottomless pit of

7 documents, new theories appear all the time, and it's difficult, if not

8 impossible, to be sure of the case that we have to answer. We're

9 presented, as I've said earlier, with something of a moving target, and

10 that makes the disclosure of exculpatory, or exculpatory evidence

11 particularly significant.

12 With respect to these three motions, as the Trial Chamber has

13 already indicated, they're peas in a pod. They're all facets of the same

14 principle. It's a disclosure issue. The Prosecution lead counsel has

15 stated to the Court earlier that assurances of counsel stated in open

16 court should be sufficient, and the Trial Chamber, on page 12795, has

17 indicated that as of the time that the -- that this issue was originally

18 raised which was January 20th of this year, then those assurances would be

19 sufficient. We're not impugning the integrity of counsel for the

20 Prosecution, obviously, but we would simply draw the Court's attention to

21 an example which really underscores the necessity for such a certification

22 in this case.

23 In the Krnojelac case, the Court described exculpatory evidence in

24 a number of ways, and the Court can read paragraph two of that decision

25 for itself. And one of the facets of exculpatory evidence is anything


Page 23837

1 that may affect the credibility of the Prosecution's evidence. And eight

2 days after this was originally discussed before the Trial Chamber on

3 January 28th, we were told that there was a new witness that the

4 Prosecution needed to add to their witness list. Ultimately, that became

5 Witness AO who was called three days before the Prosecution closed its

6 case in chief.

7 Now, we had previously asked the Prosecution for all of the

8 materials relating to Witness AO; prior statements, any videotaped

9 interviews that he may have given, and we were told that there weren't

10 any. That an extensive search of the database had been -- the

11 Prosecution's database had been performed, and there simply weren't any

12 materials and, indeed, one of the reasons that the Prosecution was

13 permitted to add this witness at that very late stage of their case was

14 based upon the Prosecution's representation to the Trial Chamber that this

15 was a witness previously unknown to the Prosecution, and unusual

16 circumstances made the addition of that witness particularly necessary. A

17 position with which the Trial Chamber agreed.

18 After the witness testified, in fact one day later, we got a

19 letter saying, well, there are two prior statements that have turned up.

20 We performed another check of our database and here they are. And they

21 had been in the Prosecution's files all the time, unfortunately.

22 Subsequently, a videotape turned up of an interview given by Witness AO to

23 NordBat in October of 1993 just shortly after the events at Stupni Do.

24 Those materials fundamentally affect the credibility of Witness AO's

25 testimony and it would have been, and should have been -- they should have


Page 23838

1 been available to us to explore on cross-examination but, unfortunately,

2 they were not and that's why Witness AO has to come back to the Court.

3 We simply say that as one illustration of the problem. The same

4 position articulated by the Prosecution to the Trial Chamber in this case

5 in January of this year was articulated to Judge Hunt in the Krnojelac

6 case, and Judge Hunt says that unfortunately, such assurances have proved

7 to be insufficient in the trials where problems relating to compliance

8 with Rule 68 have arisen before and that's why a certification was

9 required.

10 We respectfully suggest to the Trial Chamber that we need a

11 certification and that one should be given to us to avoid being blindsided

12 again. It's sensible and arguably required in the context of a criminal

13 trial. It was certainly required in Krnojelac, and it should be required

14 here.

15 Moving on to the Lasva Valley cases. We fully appreciate the

16 position in which the Trial Chamber finds itself constrained as it is by

17 the decisions of other Trial Chambers. But we would ask the Court to

18 consider the position in which Mr. Kordic finds himself as a result of no

19 actions of his own making but merely as a result of the way that the

20 institution functions. It's simply unfair and unjust to have witnesses

21 who have testified in prior Lasva Valley cases, especially where the

22 Prosecution has previously made suggestions and has made a motion which

23 was subsequently withdrawn, that certain judicial findings should be based

24 upon the results in those cases.

25 How could such a motion be made without all of the affected


Page 23839

1 accuseds having available to them the evidence upon which those judgements

2 were based? That's a fundamental proposition of fairness. It's not a

3 fishing expedition. There's no aspect of fishing involved in this at

4 all. The plain and unarguable and inescapable fact is, we would suggest

5 to the Court, that there is evidence in those cases upon which, in large

6 part or small part, the decisions have been based and that evidence is not

7 available to either Mr. Cerkez or to Mr. Kordic and it should be.

8 We are not in the same position, that the accused do not find

9 themselves in the same position. There is no equality on their part to

10 make informed assessments regarding the transcripts that they should

11 select for admission into the case other than the open session transcripts

12 which have already been -- has already been done. But there is closed

13 session testimony which could be pretty significant.

14 Once again, I'll give the Court just one example. The closed

15 session testimony of a significant UNPROFOR officer, and I do not recall

16 whether the individual testified in open session or closed session, but he

17 was one of the three witnesses called by the Trial Chamber itself in the

18 Blaskic case. I'm told by my colleague that it was in closed session so I

19 won't mention his name, but given the significance of military issues in

20 this case, it seems peculiar, if I may use that word, to have the

21 testimony of such a high-ranking officer not disclosed to Mr. Kordic or to

22 Mr. Cerkez in this case. And that's just one example.

23 To use another example, as we've previously informed the Court, we

24 had mistakenly believed that the testimony of Witness DL was actually the

25 testimony of the lady whose children were killed and maimed by the


Page 23840

1 artillery shell that fell in Vitez just before the Convoy of Joy

2 incident. Witness DL was the name of that witness.

3 As it turns out, we requested the testimony of that witness which

4 was unknown to us before and when it was disclosed, it turned out that the

5 testimony bore materially on other issues of relevance to the case, and

6 one might say of some significance to the Prosecution claims being made

7 and certainly to the second half of 1993. And that's one of the reasons

8 that we included that transcript for inclusion in the very few transcripts

9 that we asked to be included as part of the record in this case. Absent

10 the mistake on our part, we never would have known about that testimony.

11 So those are just two examples.

12 It's really a question of Article 21 as are all of these three

13 motions, Mr. President. Article 21(E) accords an accused the right to

14 examine or have examined the witness against him and to obtain the

15 attendance and examination of witnesses on his behalf under the same

16 conditions as witnesses against him.

17 And we would respectfully suggest to the Trial Chamber that the

18 availability of closed session transcripts is the functional equivalent of

19 being able to obtain testimony on Mr. Kordic's behalf as well as witnesses

20 against him. All of the witnesses against Mr. Kordic are known to the

21 Prosecution. They have free range through these transcripts, the ability

22 to choose and select which transcripts they want and which ones they don't

23 want. We don't have the same rights.

24 Given the fact that that's one of the minimum guarantees of

25 Article 21, we would respectfully suggest to the Court that it's a simple


Page 23841

1 issue and we are entitled to these transcripts and if we are not, then the

2 question is what should the Court do and what we have suggested is strike

3 all transcripts. But obviously, the remedy is one for the Court itself to

4 fashion if it feels that that's appropriate.

5 Turning to the European Community Monitoring Mission issue, that's

6 really the same sort of issue in many ways as the access to Lasva Valley

7 cases issue.

8 My colleague tells me that I erroneously identified Witness DL.

9 It should be Witness DQ in the Blaskic case. I'm sorry for the error.

10 By getting back on track with the ECMM documents, it's truly a

11 invidious catch-22 in which the accused find themselves if the ECMM's

12 approach in this case is indicative or representative of the approach that

13 it has adopted in any other case. And here is the catch-22, Your

14 Honours: As the Court well knows, we have been seeking access to these

15 documents for a very long time. Over a year, I believe. The ECMM's

16 approach initially was, well, we've provided all of these documents to the

17 Prosecution. Go and get them from the Prosecution. So we asked the

18 Prosecution, and the Prosecution says, no, we can't give them to you

19 without the ECMM's permission. So we go back to the ECMM and say, will

20 you give us your permission, and the ECMM says, basically, no.

21 The issue is litigated, and an order was issued to the ECMM

22 directing it to reconsider its position or to address the issue or

23 consider the issue once again, and the only update that I have for the

24 Trial Chamber is that since that order was entered on May the 3rd, there's

25 been a stony silence, nothing whatsoever from the ECMM. We've heard not a


Page 23842

1 word from them. We've received not a document from them.

2 Now, there is a fundamental unfairness, we would suggest to the

3 Court, when a vast quantity of documents exist which have been made

4 available to one side but are withheld from an accused. And just to give

5 the Court one example of the significance of this, I'd like the Court to

6 consider, if it would, Lieutenant Colonel Rudy Gerritsen. He was the only

7 ECMM witness that we were able to persuade to testify. And he actually

8 kept on his computer a copy of all, not just some, but all of the reports

9 that he had prepared and submitted up the chain of command within the ECMM

10 regarding the situation in Bugojno. When you consider the documents that

11 were submitted through Lieutenant Colonel Gerritsen, you get a pretty

12 comprehensive picture of what was going on in Bugojno. And that's

13 extremely significant, Your Honours, when it comes to consideration of

14 matters regarding the claims of persecution made in this case throughout

15 the territory of the HZ HB, 30 municipalities, including Bugojno.

16 When you look at the contemporaneously generated reports prepared

17 by Lieutenant Colonel Gerritsen, you can't come to any conclusion other

18 than that there was no persecution by Croats against Muslims in that

19 municipality. If anything, and we think the evidence is completely clear

20 on that, the evidence of persecution is exactly the other way around, and

21 that's why 15.000 to 17.000 Croats were expelled from that municipality of

22 the 22 or so thousand Croats that lived there before July of 1993. We

23 would not have been able to demonstrate that to the Trial Chamber without

24 access to the documents that Lieutenant Colonel Gerritsen had fortuitously

25 kept and graciously provided to us.


Page 23843

1 But of course, all of these documents have been available all

2 along to the Prosecution. And had we -- the documents been available to

3 us, then we would suggest that the cross-examination may or may not have

4 been more tailored, but it certainly would have been more focussed on the

5 issues. The Prosecution had all of those documents available, as the

6 Court is well aware, to cross-examine Lieutenant Colonel Gerritsen, and

7 there's another example of the fundamental inequality of the position in

8 which we find ourselves: The OTP having untrammelled access to these

9 files; we having none.

10 THE INTERPRETER: Could we ask Mr. Sayers to slow down, please.

11 MR. SAYERS: Despite having been told to go to the Prosecution if

12 we want access to those files, which we've done. And given the fact that

13 trammelled Mr. Kordic is at the end of his case or will be as soon as the

14 exhibit issues, the few outstanding exhibit issues are resolved, that's

15 the situation that is pretty serious, we would respectfully suggest.

16 In addition, there's no question that the importance of these

17 documents has been conceded by the OTP. We provided one quotation where

18 that occurred from the hearing that was held, I believe, on the 11th of

19 October of last year where the concession was made that, that the OTP

20 thought that the ECMM documents generally are documents that both sides

21 are going to regard as helpful when they are produced. That is page

22 8027.

23 Later in that discussion, we made no objection to the OTP's ECMM

24 documents, and I'm referring to 8028 and 8029 of the transcript,

25 Mr. President. In fact, I said to Your Honour, "We have no objection,


Page 23844

1 obviously, to the European Community monitoring mission documents being

2 admitted as evidence, provided they are all admitted. We object to

3 selective documents being extracted by the Prosecution and selectively

4 introduced." And the Presiding Judge said, "Well, this is a matter we've

5 discussed before," and the Prosecution then observed that the matter would

6 have to be litigated, even though the documents were helpful, and it has

7 been.

8 And I think with that, I don't have anything to add to what we've

9 said in our motions, Your Honour. Thank you.

10 JUDGE MAY: How do you, how do you get from this position, which

11 is essentially a complaint about disclosure, and what you're saying is

12 there hasn't been the full disclosure which you are entitled to. Now,

13 first of all, you've had full disclosure according to the rules. You're

14 asking for more. How, then, do you get to the position that the evidence

15 which has already been given and ruled upon should be excluded?

16 Looking at Rule 89, the Chamber may admit any relevant evidence

17 which it deems to have probative value. It may exclude evidence if its

18 probative value is substantially outweighed by the need to ensure a fair

19 trial. It's difficult to see that this is an exclusionary matter, as a

20 ground for exclusion. It may be a ground for complaint, but to take the

21 line that you have done, I suggest, may not be justified by the rules or

22 the statute.

23 The real answer is this, isn't it, that the Prosecution carries

24 out its full duty of disclosing exculpatory material under Rule 68. That

25 is your safeguard given the situation which you find yourself in.


Page 23845

1 MR. SAYERS: I think Your Honour raises two issues, the Rule 68

2 issue, and then the issue regarding access to documents and the position

3 that we have received everything to which we are entitled.

4 You're absolutely correct, Mr. President, Rule 68 should be our

5 safeguard; it should be our safe harbour, so to speak. But unfortunately,

6 it has not been, and the procedural history of this case shows that to be

7 the situation, and that's why we've brought this Rule 68 motion before the

8 Court. It's really simply a request on the part of Mr. Kordic to have a

9 certification from the Prosecution, under the explicit authority of

10 Krnojelac, that the obligations which we are owed have been discharged to

11 us. And you're absolutely right, that is our safe harbour, but the

12 previous problems to which I've adverted shows us that perhaps the

13 assurance that has been made may not be sufficient.

14 The second issue concerns whether we have received everything

15 which we are entitled to receive from the Prosecution, and to some extent

16 the Lasva Valley case motion is really -- doesn't implicate that

17 particular concern, and to another extent the ECMM motion does not

18 implicate that concern either. It's a separate issue, if I might

19 respectfully suggest that to the Court. The ECMM motion is simply the

20 catch-22 situation that I've adverted to.

21 We're not making a request for disclosure from the Prosecution.

22 We're simply relaying to the Prosecution the request from the ECMM that we

23 have received to go to the Prosecution for those documents instead of the

24 ECMM, a sort of conduit, if you like. And when we've done that, the

25 Prosecution has said, We can't release these documents without the consent


Page 23846

1 of the ECMM; and as the Court knows, the ECMM has declined to give their

2 consent. So it's an invidious, closed-tape route, if you like. You sort

3 of return to the point of departure as if you are -- that there's no

4 escape from that bureaucratic, if I might say that, bureaucratic

5 closed-end loop. Surely there's got to be.

6 We're entitled to the documents from the ECMM, that's what we

7 would suggest to the Court. And if we -- if the Court thinks that since

8 the Prosecution has had those, and since the ECMM suggests that we should

9 get them from the Prosecution, that's the way to go, then that's the way

10 to go. I would prefer to have them from the ECMM, obviously; but we don't

11 have that, that luxury, and there's no way that we have to compel the ECMM

12 to provide those documents.

13 THE INTERPRETER: Could Mr. Sayers slow down, please.

14 JUDGE ROBINSON: What are the legal consequences of a

15 certification by the Prosecution in relation to Rule 68?

16 MR. SAYERS: Well, were such a certification to be given to us,

17 that would obviously increase our comfort level that full disclosure had

18 been made. But presumably, Your Honour, it would avoid a situation such

19 as the unfortunate situation in which we find ourselves in with respect to

20 Witness AO. We would have moved to exclude his testimony altogether if it

21 turned out subsequently that exculpatory material, as defined by

22 Krnojelac, had not been turned over to us prior to the time that that

23 witness testified. And that would be the appropriate remedy, we would

24 suggest, to the Court, under those circumstances.

25 It really is a disclosure issue. That's why these disclosure


Page 23847

1 rules exist so that the Court can avoid having its time wasted by having

2 to call witnesses back for Prosecution when cross-examination should be

3 facilitated by prompt, proper, and full disclosure as required by Rule 68.

4 JUDGE MAY: How does the certificate really add anything to

5 counsel in Court saying something?

6 MR. SAYERS: Well, a certificate, I think, would, for the reasons

7 articulated by Judge Hunt, add something by way of giving a more formal,

8 more formal proportions, if you like, to the Rule 68 disclosure

9 obligations. But more importantly, we would have -- I mean, we did move

10 to exclude Witness AO's testimony altogether once the non-disclosure had

11 been revealed to us and was subsequently communicated to the Court.

12 But I think it puts the Prosecution on notice of the importance of

13 making timely disclosures to us and avoiding having an unpalatable

14 situation in the future. Also it's what appears to be advocated by the

15 Krnojelac case but I say that, Mr. President, reiterating that this is

16 not -- this motion is absolutely not intended as an assault upon the

17 integrity of counsel for the Prosecution at all. Thank you.

18 JUDGE MAY: Thank you. Mr. Kovacic, is there anything you want to

19 add?

20 MR. KOVACIC: [Interpretation] I will not waste any more time on

21 this. We have joined the motion submitted by the Kordic Defence in their

22 entirety. I would just like to add with regard to the motion for

23 certification under Rule 68 that we had made such a request earlier on

24 already, and I think that the gist of the matter which can be verified on

25 a daily basis that we are requesting from the Prosecution to carry out an


Page 23848

1 active search of their materials that they have in their possession, and

2 that they should state that in this certification.

3 Until now, clearly, and we have discussed this on several

4 occasions, perhaps in a marginal manner, that the Prosecution actually,

5 when they happen to come across a document by chance which, according to

6 the Prosecution's criteria, may be considered as exculpatory, then they

7 may give it to us or disclose it to us. We feel it is the duty of the

8 Prosecution, according to the provisions of the Rule, that is a reasonable

9 interpretation of that Rule, and it is also inferred by the Krnojelac

10 ruling that the Prosecution needs to invest that effort and must formally

11 inform the Court and the other party of having done that.

12 Let me just mention an example. Two or three days ago, a document

13 was tendered by the Prosecution -- unfortunately, I don't know the exhibit

14 number -- from which it is quite clear that the commander of the brigade,

15 the accused, Mario Cerkez, on the eve of the conflict, on the eve -- that

16 is 14 days prior to the conflict at a time when the Defence claims he was

17 only just about to establish the unit of which he was in command which is

18 very important, that at that time, the brigade was not able to procure two

19 desks and one typewriter. Such a document, if an active search had been

20 carried out, would surely have been noticed by the Prosecution that it is

21 in favour of the Defence of the accused and that it shows clearly that it

22 is evidence in support of the truthful claims of the accused.

23 There were several such similar documents, particularly lately,

24 and I think that the criterion for the Prosecution must be an active

25 approach, an active search, rather than simply waiting to come across or


Page 23849

1 not come across a document which then the Prosecution will, on the basis

2 the of its own criteria, disclose or not.

3 So our position remains the same and, in fact, in the last period

4 of the proceedings, we have received a number of exculpatory documents,

5 some of which could have surely been disclosed earlier, and they would

6 have affected, naturally, the examination of witnesses and the documents

7 that we would tender or not.

8 In other respects, there is nothing more I have to add to what my

9 learned friend, Mr. Sayers, has said. Thank you.

10 JUDGE MAY: Yes, Mr. Scott.

11 MR. SCOTT: May it please the Court. Your Honour, Mr. Nice will

12 deal with the Rule 68 certification issue. I will address the ECMM

13 document issue and the transcript issues very briefly given the Court's

14 comments already.

15 In connection with the ECMM documents, Your Honour, let me just

16 say that, as we said in our papers, that we take issue with the

17 characterisation of the particular statement attributed to Prosecution

18 counsel about the global significance of the ECMM documents and the

19 inference that they all should be provided to the Defence. There was, in

20 particular, one statement. The Court clearly would have that transcript

21 available to it. We object that it's been taken substantially out of

22 context and mischaracterised.

23 The more important issues, Your Honour, are these: This

24 institution by way of Plenaries and Rule making has very deliberately

25 adopted a disclosure regime. Under that regime, there are some very


Page 23850

1 specific rules requiring disclosure. Those are Rule 66(A), supporting

2 material which accompanies the indictment, statements obtained by the

3 Prosecutor from the accused, copies of statements of witnesses that the

4 Prosecutor intends to call at trial. Rule 67(A)(i), the names of

5 witnesses to be called, the names of witnesses to be called by the

6 Prosecutor to rebut any alibi or special defence of which the Defence has

7 given notice, and Rule 68, obviously, in dealing with exculpatory

8 evidence.

9 It's our view, Your Honour, as the Court knows, that we have

10 satisfied and continue to satisfy, to the best of our ability, all of

11 those rules, 66(A), 67(A)(i) and Rule 68. There are no other Rules

12 requiring disclosure from the Prosecution. The Chamber should note, Your

13 Honours, with all respect, that the Defence, in our view, has very

14 deliberately and tactically did not and never has made in the course of

15 this proceeding a Rule 66(B) request for documentary discovery. Rule

16 66(B), on its face, addresses the very question suggested by counsel, and

17 that is requiring the disclosure of documents and photographs et cetera,

18 and similar materials in the Prosecutor's custody which would be material

19 in the preparation of the Defence.

20 Now, it's curious that in -- since this case started some years

21 ago, the Defence has never asked, has never asked for Rule 66(B)

22 disclosure. I suggest to Your Honour that it's not by accident. It was a

23 deliberate trial tactic to avoid triggering reciprocal discovery because

24 Rule 67(C) makes clear that if the Defence does ask for 66(B) disclosure,

25 they thereby undertake the obligation to provide reciprocal disclosure of


Page 23851

1 documentation to the Prosecution, something which clearly that they have

2 never wanted do. Having made that tactical choice, Your Honour, they

3 cannot come through the back door which they have refused to do through

4 the front door.

5 The Defence essentially, Your Honours, wants to have it both

6 ways. And I submit, Your Honours, that according to the Rules established

7 by this institution in Plenary, there is a disclosure regime in which the

8 Prosecution has met its obligations under that regime, and now the Defence

9 wants to find a big hole in those Rules and create some disclosure

10 obligations that don't exist. That is the bottom line of our position on

11 that, Your Honour. Beyond that, the Court will know based on prior

12 filings that the Prosecution has made that these are extensive, huge

13 volumes of ECMM documents. The mere listing of which would comprise

14 hundreds and hundreds of pages and takes literally weeks and weeks of

15 staff time to prepare.

16 The Court may recall that there was a previous filing on that. Be

17 that as it may, Your Honour, beyond what I have already said, Your Honour,

18 these are matters that have been conducted ex parte between Defence, the

19 Chamber, and ECMM. Whatever the outcome of those proceedings, whatever

20 the outcome, there is no basis, there is no reason why the Prosecution

21 case should be penalised or prejudiced by some dissatisfaction that the

22 Defence has with those outcomes. We have simply not been a party to

23 that. We have met every disclosure Rule established by this body's

24 disclosure regime. That is our position, Your Honour, on ECMM.

25 Considering the Lasva Valley transcripts, Your Honour, I'll be


Page 23852

1 even briefer. As the Court's indicated itself, that again has been a

2 matter entirely between the Defence, this Chamber and other Trial

3 Chambers. It is true that initially there was a time when the

4 Prosecution, for various reasons, opposed the disclosure of some of this

5 material. We then modified our request and ultimately, essentially,

6 stepped out of the fight. So that was a matter between the Defence and

7 this Chamber and other Chambers. That has continued to be our position.

8 And just as with the ECMM dispute, Your Honour, we essentially find

9 ourselves bystanders to that issue, and certainly the Prosecution case

10 should not be prejudiced or penalised by the outcome of various decisions

11 by this Chamber and other Chambers.

12 This Court has recognised as the President summarised a few

13 minutes ago, this Chamber is, in fact, bound by the disclosure rulings and

14 protections given to other witnesses in other Chambers. The Prosecution

15 doesn't have the power or authority to run roughshod over those

16 protections nor does the Chamber. So I submit, Your Honour, and I can

17 only assume that this Chamber has given this issue it's fullest attention

18 very carefully and has made those rulings that it thinks are the correct

19 and fair rulings, and there is simply nothing more for the Prosecution to

20 add, except that our case should not be penalised, again, by any

21 dissatisfaction by Mr. Kordic for the Court's ruling.

22 Thank you, Your Honour.

23 JUDGE BENNOUNA: [Interpretation] While you are on your feet,

24 Mr. Scott, did I understand you correctly regarding exculpatory evidence

25 which might possibly be contained in the ECMM documents? I think you have


Page 23853

1 already told us, you or Mr. Nice, that you are not capable today of saying

2 exactly or certifying what is the exact content of the documents in your

3 possession because they are so voluminous that you were not able to

4 examine them in detail. Did I understand you correctly?

5 MR. SCOTT: I think it would be a fair statement, Your Honour.

6 And again, Mr. Nice will address that, the Rule 68 issue more

7 specifically. I think it's an accurate and true statement, Your Honour,

8 that I don't know of any individual human being in the Office of the

9 Prosecutor who would be able to say they have read all those documents and

10 could say -- would recall everything that was possibly said out of some

11 probably something in the excess of 30.000 -- not pages, 30.000

12 documents. So as I stand here in front of the Court, Your Honour, I

13 cannot certify that. I have not read every document. Personally, I don't

14 know how I could.

15 JUDGE BENNOUNA: [Interpretation] Very well, thank you for

16 clarifying your position. The second question I would like to address to

17 you is the following: There is clearly here failure to respect an

18 important principle, and that is the principle of equality of arms. The

19 problem that arises is you have the cooperation of the ECMM. The Defence

20 of Mr. Kordic does not have those same means.

21 MR. SCOTT: That's true to some extent, Your Honour. We've

22 addressed that in our papers saying, of course, there is not complete

23 symmetry between the Defence counsel and the Office of the Prosecutor.

24 The Office of the Prosecutor is a creature of the Security Council

25 established and financed and budgeted by the United Nations and given


Page 23854

1 certain authorities and powers. Clearly the Defence is not equal to

2 that. I don't think anyone could honestly say with a straight face that

3 they are. Nor could such complete symmetry, Your Honours, I believe be

4 expected.

5 It goes back, if I can respond, Your Honour, this way. It goes

6 back to what we said earlier. This -- the equality of arms, if I

7 respectfully say, cannot be used as the exception that overcomes every

8 other Rule, because if to do so, we don't need disclosure Rules, we don't

9 need Rule 66 or 67 or anything else, we just simply need a principle that

10 says "equality of arms", whatever that means.

11 JUDGE BENNOUNA: [Interpretation] Yes. But, Mr. Scott, these Rules

12 that you have cited are intended precisely to implement this principle of

13 equality, the equality of arms between the parties.

14 MR. SCOTT: Only to the extent, Your Honour, that the Plenaries of

15 this body have implemented specific rules. There is a principle, if you

16 will, there is a philosophy you might call it of equality of arms. This

17 institution has adopted specific rules to implement that philosophy.

18 Those rules of its selection, not the Prosecutor's selection, of the

19 Tribunal, of the Judge's session sitting in Plenary have adopted the rules

20 to implement that philosophy. Those are Rules 66, 67, and 68. Once the

21 Prosecutor has satisfied those rules we have met our disclosure

22 obligations, Your Honour.

23 JUDGE BENNOUNA: [Interpretation] What is the nature of the

24 obligation imposed on you by the ECMM when they gave you these documents?

25 What kind of conditions were imposed by the ECMM on you?


Page 23855

1 MR. SCOTT: My understanding, Your Honour, is that they were

2 submitted and that many of them, of course, came to the Tribunal long

3 before I was a member of the staff, but they were submitted under Rule

4 70. That's my understanding.

5 JUDGE BENNOUNA: [Interpretation] That means, that is to say?

6 MR. SCOTT: Your Honour, whatever Rule, I couldn't quote all the

7 implications of the aspects of Rule 70 to the Court, whatever the Rule

8 says in terms of the use and further disclosure of those documents. Rule

9 70 goes on for some seven or eight paragraphs, six or seven paragraphs of

10 detail. I think the key issue is perhaps here subpart C.

11 But that Rule, Rule 70, cannot be taken as creating an independent

12 disclosure obligation on behalf of the Prosecutor. It doesn't create an

13 affirmative obligation. It just sets certain procedures and requirements

14 that this institution has agreed to follow. It doesn't create, I would

15 submit, any independent disclosure obligations for the Prosecution.

16 JUDGE BENNOUNA: [Interpretation] Thank you.

17 JUDGE MAY: What do you say about the suggested remedy for this

18 problem of disclosure? The suggested remedy is to remove an unspecified

19 amount of evidence and exhibits. Can you see any basis in the statute or

20 Rules for the Trial Chamber to do that?

21 MR. SCOTT: No, Your Honour. There is absolutely no basis in the

22 Rules. That would be an incredibly draconian remedy out of all measures

23 to anything the Prosecution can be held responsible for. The Court knows,

24 and this would be no secret, that there was extensive testimony from a

25 number of ECMM officials and extensive documentation. .


Page 23856

1 I can submit, and I don't think I'm saying anything -- giving away

2 any secrets if I were to say that all that evidence was to be excluded, it

3 would be of substantial harm not only to the Prosecution case, but to this

4 Chamber's ability to make an informed judgement.

5 JUDGE MAY: There's no particulars of what evidence and what

6 exhibits are to be excluded. It's done in the vaguest possible way.

7 MR. SCOTT: There's no indication whatsoever, Your Honour, and

8 there's nothing in the Rules that would provide for that sort of remedy.

9 JUDGE MAY: It would require that the Trial Chamber to begin the

10 exercise of going through the entire transcript, excising references to

11 ECMM witnesses, and the Judges would take weeks.

12 MR. SCOTT: I think the Court is absolutely right.

13 JUDGE MAY: Yes.

14 MR. SCOTT: Thank you, Your Honour.

15 MR. NICE: I will deal briefly with Rule 68 point, but before I

16 do, just having had the advantage of listening to His Honour Judge

17 Bennouna's question, may I respectfully add to what Mr. Scott said just

18 this, that equality of means or arms doesn't in general mean equality of

19 access. If it did, and in a case where, as we know, the Defence, for

20 example, had access at early stages and before the trial to documents in

21 Croatia when we had none, does that mean that they can only have that

22 access which was made available to them on terms that it shared with us?

23 Of course not.

24 JUDGE MAY: What does equality of arms mean? Does it mean

25 equality of information?


Page 23857

1 MR. NICE: Does it mean equality of means generally to conduct the

2 litigation?

3 Certainly both parties have equal access to the Chamber to apply

4 for and have granted in their favour orders of the Chamber, and although

5 the ECMM application by the Defendants could have been done on notice to

6 all parties, it was in the event, as we now know, done ex parte, and it

7 appears that orders on requests and so on were made by the Chamber. So

8 equality of arms in the sense of an equal ability to use the machinery of

9 the trial, they have in full. But in the same way as, for example, we

10 have been thwarted until very recently, even having the assistance of the

11 power of the Chamber in relation to the production of documents from one

12 or two states, we don't complain about that when we know that another

13 party has had more success even without the use of those mechanisms.

14 So I think equality of arms doesn't mean equality of access. It

15 never could do. And in any event, prosecutions are conducted on the basis

16 that the prosecuting party has access to material, sometimes material from

17 various places that won't necessarily be available either ever or on the

18 same terms to other parties. It's a commonplace event.

19 If I deal with --

20 JUDGE ROBINSON: Sorry, Mr. Nice, I mean ultimately equality of

21 arms is an aspect of the right to a fair trial.

22 MR. NICE: Yes.

23 JUDGE ROBINSON: And I think the Chamber has to do its utmost to

24 ensure that equality. When the Chamber has done that, I think basically

25 the question of whether the accused has received a fair trial will have to


Page 23858

1 be determined as well.

2 MR. NICE: Well, I can see the force of Your Honour's argument,

3 and I'm grateful for your expressing it. I don't think I have anything to

4 add to it except to say that it's perfectly apparent from the careful way

5 that these proceedings have gone historically, that the Chamber has been

6 very careful about the ECMM documents in particular to ensure that it's

7 fully informed about everything that it needs to be informed about. We're

8 in no position to help further than the way we have done already.

9 JUDGE BENNOUNA: [Interpretation] I have a question. Since you

10 have touched upon these aspects, Mr. Nice, I was just asking Mr. Scott a

11 moment ago regarding the problem of the obligations imposed upon you by

12 the ECMM when they gave you access to all those documents. He referred me

13 to Article 70 -- Rule 70, and it seems to me that Rule 70 does not fully

14 apply to this situation because there is paragraph (B), "...on a

15 confidential basis and which has been used solely for the purpose of

16 generating new evidence." That's a different situation from the situation

17 that it should be disclosed. And (C),"... document or other material so

18 provided," it's again another situation. It could be (B), then, which is

19 to say that the ECMM gave you some information on a confidential basis,

20 but it can be used solely for the purpose of generating new evidence.

21 My question is the following: Could you imagine and what would be

22 your position if the Chamber were to ask for access to be given to the

23 Defence to the documents which were placed at your disposal by the ECMM,

24 so that -- and then the Defence would see how it would deal with it.

25 That's another matter. But in that case, what would be your response to a


Page 23859

1 possible request by the Chamber for the ECMM to place at the disposal of

2 the Defence the enormous amount, the thousands of pages of documents, as

3 you said, which were provided to you and placed at your disposal by the

4 ECMM? You have used a part of it, but then there's all the rest. And I

5 would like to know what your position is regarding this possibility.

6 MR. NICE: Well, I think there are a number of parts to the

7 answer. First of all, under (C), consent is linked to the election to

8 present evidence as testimony; therefore, absent our deciding or wishing

9 to present evidence as testimony, a question of consent under (C) doesn't

10 arise so that there's no provision there for material provided on this

11 basis being provided to any other party.

12 The Court would also want to have in mind the second clause of the

13 first sentence of subparagraph C because indeed, even if, as has been the

14 case, some evidence has been provided with the consent of the providing

15 party, the Trial Chamber, notwithstanding Rule 98, may not order either

16 party to produce additional evidence received from the person or entity

17 providing the initial information; nor may the Trial Chamber, for the

18 purpose of obtaining such additional evidence, summon the person or

19 representative of that entity as a witness or order their attendance. A

20 Trial Chamber may not use its power to order the attendance of a witness

21 or to require production of documents in order to compel the production of

22 such additional evidence. So that whether we like it or not, as long as

23 consent and the election to give evidence are linked in the way they are,

24 that appears to be the end of it.

25 Now, in all this I express no personal opinion one way other


Page 23860

1 another as to the desirability of handing the material over, and I don't

2 think I'm at liberty to disclose what other opinions we may have expressed

3 to ECMM heretofor, but ...

4 [Trial Chamber confers]

5 JUDGE MAY: The problem is that we've got to be sure whatever

6 principle you use, that there is not a danger that some document which may

7 assist the Defence in one way or another may, for instance, take at its

8 most extreme, avoid the conviction of someone who's not guilty, evidence

9 of that sort is not somehow overlooked. That's really the problem. And

10 of course, I had in mind that we could, as could the Defence, rely on Rule

11 68.

12 MR. NICE: Right.

13 JUDGE MAY: But if the position is that there's too much material

14 for you to go through, we haven't got an answer.

15 MR. NICE: When you say there's too much material to go to, you're

16 referring to the ECMM material that covers the entire conflict, all --

17 THE INTERPRETER: Could the counsel slow down, please.

18 MR. NICE: Counsel could slow down, and he apologises.

19 That relates to all the areas, stuff outside this locality, and so

20 on. We have, of course, as we've explained on earlier occasions,

21 considered the material that we believe to be relevant to this case, and

22 we've conducted our Rule 68 applications on that, our Rule 68 inquiries,

23 in relation to that material. That's part of the exercise we did ages

24 ago, of course. But at the moment, there's a simple blanket request for

25 all ECMM material, and so I think --


Page 23861

1 JUDGE MAY: Can we narrow it to all relevant ECMM material?

2 MR. NICE: We've got problems of definition, but I think it's best

3 linked, actually, to the 68 issue, if I can come back to it, having gone

4 through that, because on the 68 issue, as I've always said, all I really

5 propose to say on the question of certification, is what I said the last

6 time: acknowledging the inevitable imperfections of these systems

7 generally, and we're not seeking to run and hide from it, applying to ECMM

8 as much as to other things. And you'll find this at page 8 of our answer

9 to the application.

10 Having dealt with the inevitable limitations and imperfections, I

11 say the best that one can do is one's best to honour the obligations. As

12 I've made plain from the beginning, that's what we've done, are doing, and

13 will continue to do. There's no certification, there's no document that's

14 going to assist that exercise. What purpose would such a document serve?

15 None. My word will be good enough, I trust, on the topic. If it isn't, I

16 should like to know why. We've done our best; we are doing our best; we

17 will continue to do our best to honour the obligations under the Rules.

18 And what Your Honour has asked me about, for example, ECMM or

19 relevant ECMM can apply with full force to any other part of the

20 documentary material that comes into this building and is stored here. We

21 do our best, and that's what it has to be, with great respect.

22 And as to the certification, I have nothing else to say.

23 Certification is not going to add anything, even if you could find someone

24 to give one.

25 I'll deal with Mr. Kovacic's point separately because I think he's


Page 23862

1 raising, actually, a slightly different issue.

2 As to the Witness AO history, far from being unfortunate, it's

3 fortunate. It's actually a reflection of how well we do continue to do

4 our task and to do it honourably. I remember the gratitude Mr. Sayers

5 expressed, I think, when I gave the documents available to him. It wasn't

6 actually his gratitude that he needed to show because he was only getting

7 what he was entitled to, and it should have come as no surprise to him.

8 But that is just an example of the general problem or the general reality

9 facing this place.

10 We know what our 68 duties are. We honour them; we tell you

11 that's what we're doing. In relation to ECMM, we've performed that duty

12 so far as we can, to the best of our ability, what no doubt we believe to

13 be the relevant material. No different from any other body of material in

14 this institution.

15 JUDGE MAY: If we invited you to hand over all relevant ECMM

16 material, would that present any problems?

17 MR. NICE: I think it probably, I think it probably would because

18 I think the ECMM would take with us the same attitude that they've taken

19 with the Court. And ECMM, of course, it's important to bear in mind, is

20 not a single individual or a single body. It's composite body

21 representing a number of different governments. And although I don't know

22 what's been said to you in ex parte hearings by the representative of

23 ECMM, it isn't, as I understand it, simply a single body, although it may

24 have at the moment a single representative.

25 So that --


Page 23863

1 JUDGE BENNOUNA: About ECMM, it's not a question -- it's not

2 enough to say it's not a single body. Either it is an international

3 organisation with an international personality, which is not the case,

4 perhaps, not exactly. It is a sort of instance entity created by European

5 states but which is now directed to the European Union. I think in either

6 case, it is under Rule 29, and we know that. And if it's up to us to

7 decide, and we ask the President as the President in exercise of the

8 European Union, and we can also ask formally if states concerned, they

9 didn't answer. If they didn't answer, does it mean -- does that mean that

10 we have to, to be bound by the condition they imposed about the, the

11 information or the documents they gave to you? That's the problem.

12 Because there is here, there is a very important rule which is perhaps not

13 usually in international law which was adopted and which has a particular

14 force, and there's Chapter 7 of the Charter, which is Article 29. That

15 means that the decision of this Tribunal have to be, to be followed by the

16 states concerned and by the representatives of the states, either

17 individually, or even if they operate in common, it doesn't change the

18 sense of Article 29. And that what is the situation where we are now.

19 MR. NICE: Well, Your Honour, I'm not aware of exactly how ECMM

20 expressed themselves to Your Honours when they were here ex parte, and I

21 can't really join that debate. All I know is the terms upon which the

22 materials being provided to us limit our ability to respond, whatever our

23 personal views.

24 In any event, the Chamber must have in mind that if we were, and

25 this is -- if we were in possession of all the material free of strings,


Page 23864

1 free of constraint or restraint, why, then, our duties of disclosure would

2 still only be under 68, absent a request for reciprocal discovery, which

3 hasn't been made. And since we have discharged our duties under 68 in

4 respect of what is the relevant material in our judgement, this is no

5 different from any other body of material.

6 It's always been open to the Defence, right from the beginning, if

7 they wanted to, to approach things differently. They didn't. And we

8 asked them on a couple of occasions if they were -- to check whether their

9 requests were, in fact, reciprocal discovery requests. They asserted they

10 were not. That's their choice. So that in relation to the ECMM material

11 and any other material, they have no other rights than those that the

12 Rules of this Court have set down. And they've had all they're entitled

13 to under those Rules.

14 And in a way, the particular limitations imposed by ECMM are

15 diverting -- they somewhat divert attention from that reality. If we

16 forget the terms upon which they were provided to us and the fact that

17 there's the Rule 70 limitation, why, then, the Defence and the Chamber are

18 in the same position as they would be in relation to, I suppose, BritBat,

19 for example. If the Defence came to the Chamber seeking assistance in

20 relation to BritBat, knowing that we had some BritBat materials, and

21 BritBat, for whatever reason, did not comply or was unable to comply, that

22 unsuccessful collateral litigation by the Defence wouldn't give them any

23 different or greater rights to the material in our possession at all.

24 I'll just check if there's anything else.

25 [Trial Chamber confers]


Page 23865

1 JUDGE MAY: Unless there's anything else.

2 MR. NICE: Only just, I think, to emphasise the last point in case

3 I hadn't made it clear enough. I hope I had. But there probably are

4 British Battalion documents, or whoever it is, military documents in our

5 possession that haven't been produced as part of our case and haven't been

6 turned over if they're not 68. They are, in fact, conceptually in exactly

7 the same category as the ECMM documents which we believe to be relevant

8 and which we have examined with the same care and thoroughness for Rule 68

9 purposes as we have done with every other document.

10 And that brings me to the last two points of certification because

11 I really have nothing to add to what I said before. Of course it would

12 have made absolutely no difference to what we would have done or what we

13 will do even if, as I can, say you can find anyone to sign one.

14 Mr. Kovacic's point is rather different. He seems to be saying

15 that either he or he through the Chamber can direct us as to what we

16 should now be doing in order that we can make the representation that we

17 do that we are doing our best. He is effectively saying we should now be

18 directed to do something else. Respectfully, no, and if so, what? That's

19 a rhetorical if so, what, because I'm not inviting any such detail.

20 I don't think the Chamber would, itself, wish to be involved in

21 telling the Prosecution how to do its job. The Prosecution has the team

22 it has, the recourses it has which are necessarily finite and limited,

23 subject to the constraints of time that are on all of us and within --

24 with all those factors in mind it continues to do its best. That

25 protestation or the representation of that, that's what we are doing is as


Page 23866

1 far as we can go.

2 JUDGE MAY: Thank you. Mr. Sayers, the argument which the

3 Prosecution put forward is this: That you could, of course, have at any

4 time for these materials from the Prosecution, and what is suggested is

5 that you have not done so for purely tactical reasons in order to avoid

6 the effect of 67(C). Now, you don't have to tell us what your thinking

7 is, that's a matter for you, but it's an argument which obviously we've

8 got to consider.

9 MR. SAYERS: Yes, Mr. President, I understand the argument but

10 with all due respect to the Prosecution, that really muddies the issue and

11 it's really not the issue. It's really not a reciprocal disclosure

12 obligation that this series of motions that we've made raises. The

13 discussions about the BritBat documents are not material because they are

14 not the subject of litigation involving the BritBat, the Ministry of

15 Defence of the United Kingdom has provided most of these documents to us

16 in the way that we would have hoped that the ECMM would have done.

17 What we were directed to do by the ECMM was to go to the

18 Prosecution to ask for those documents since they had already provided

19 access to all of them to the Prosecution. So it wasn't a Rule 66 issue.

20 It's not a reciprocal disclosure issue at all. We're simply asking from

21 the Prosecution what they've been given by the ECMM as directed by the

22 ECMM. It's a very discrete issue. And I do think, and we would submit to

23 the Trial Chamber, and as I think the debate today underscores, in graphic

24 fashion, these are fairly weighty issues. They raise issues relating to

25 the fairness of the trial and the concept of equality of means or arms or


Page 23867

1 whichever way you wish to describe it, but it's equality. What's

2 important is to ensure that some are not more equal than others and that

3 appears to be what the Prosecution is saying. Again, with all due

4 respect, that they are more equal than accused before the Tribunal.

5 Then with respect to the Tribunal of the nature of the remedy,

6 quite correctly, Mr. President, you raise a question regarding the broad

7 remedy that we appear to be seeking, but with all due respect, it's

8 difficult for me to imagine what we --

9 THE INTERPRETER: Could the counsel slow down, please.

10 MR. SAYERS: My apologies to the interpreters.

11 The only point that I would have to make on that is my concluding

12 point, Mr. President, is Rule 70(G), if you take a look at that, it says

13 nothing in subrule C or D about, "...shall affect the Trial Chamber's

14 power under Rule 89(D) to exclude evidence if its probative value is

15 substantially outweighed for the need to a fair trial." And it, in very

16 eloquent words there, I think that Rule really raises the issue that's

17 before the Court today and that's the -- it reflects the same language, I

18 believe, that's used in Rule 89(D). And that's the peculiarity of Rule

19 70(C) also. It seems that there are constraints placed upon a Trial

20 Chamber's ability to order the production of additional evidence from

21 persons or entities that elect to provide materials under Rule 70

22 generally and that -- I don't pretend to be privy to the reasons why that

23 particular Rule was adopted, but it presents an automatic potential for

24 the kind of situation in which we now find ourselves today.

25 Apparently, on an unequal basis, information has been produced to


Page 23868

1 the Prosecution and withheld from the Defence. The question arises: What

2 is the Court to do in that situation? Can you order the production of

3 additional --

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Mr. Sayers, could you explain again why, in your

6 submission, 66(B) is not applicable? Because the question which I am

7 addressing is whether, if there is a gap in your information, your

8 database, whether it is not of your own making.

9 MR. SAYERS: Well, I don't see how it can be of our making, Your

10 Honour, when we've used every means available to us and provided for by

11 the Rules in the absence of making requests for reciprocal disclosure to

12 the Prosecution which we chose not to do but we did choose to ask for the

13 Trial Court's assistance in obtaining documents from the ECMM and the

14 Trial Court gave us that assistance to the extent that it could. And I

15 would suspect that the careful phraseology of the order addressed to the

16 ECMM bore the constraints of Rule 70(C) in mind. And then the Court and

17 the accused find themselves in the position of what happens when the

18 entity to whom a request is made, such as the ECMM in this case, says no.

19 That is the position we find ourselves in, it's really a position

20 of equality position and the Rules address, unfortunately, in broadbrush

21 manner, what the appropriate remedy is and that's what we have suggested.

22 JUDGE ROBINSON: But you have actually not addressed to the

23 Prosecution request pursuant to 66(B).

24 MR. SAYERS: We have not made a request for reciprocal

25 disclosure. That's our right. But we are not constrained by the same


Page 23869

1 Rule 68 obligations that attend to the Prosecution. We are entitled to

2 rest assured and safe, I think, in the knowledge that under Rule 68, any

3 exculpatory materials will be turned over to us but, unfortunately, that

4 has not been the case with respect to some witnesses and some issues, not

5 just for Mr. Kordic but Mr. Cerkez too, and that's why we've made the Rule

6 68 request.

7 These three issues are all interconnected, and they do raise

8 issues that go fundamentally to the right to receive a fair trial.

9 JUDGE ROBINSON: You're saying that independently of 66(B) which

10 is permissive, only permissive so far as the Defence is concerned, the

11 Prosecutor has an obligation to disclose in these circumstances.

12 MR. SAYERS: No, I think that's not our argument with respect,

13 Your Honour. The argument is this: We've asked for the documents from

14 the ECMM. Initially, we were told by the ECMM to go to the Prosecution.

15 The Prosecution said we can't release those documents without the -- even

16 though they are valuable -- without the permission of the ECMM, and the

17 ECMM would not give that position so we find ourselves in that vicious --

18 JUDGE ROBINSON: It's circular.

19 MR. SAYERS: -- circularity, exactly. And that's why we came to

20 the Trial Court and the Trial Court did what it did, and we find ourselves

21 in the position still of having had access, essentially, to no ECMM

22 documents other than the ones that we were able to locate through our own

23 endeavours, the ones that I have referred to, the ones provided to us by

24 Lieutenant Colonel Gerritsen.

25 JUDGE ROBINSON: So ultimately you seek exclusion.


Page 23870

1 MR. SAYERS: That's the remedy we've asked for. That's the remedy

2 envisaged by Rule 70(G), and it's difficult for me to see any other remedy

3 that's within the Court's power. I'm not sure that the Court has the

4 power, necessarily, to direct the disclosure of these documents under Rule

5 70(C) unfortunately. Thank you.

6 JUDGE MAY: We'll consider these matters over the short

7 adjournment. As a result, we will take rather longer than normal. We

8 would normally sit at 2.35. We'll say 3.00. Sit again at 3.00. If we

9 need more time, we'll have to pass a message through.

10 --- Luncheon recess taken at 1.05 p.m.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Page 23871

1 --- On resuming at 3.06 p.m.

2 MR. NICE: Before the Court gives its decision, and in case there

3 was something that was not stated that should have been stated, that

4 might, I don't think it makes any difference, but might be regarded as

5 favourable to the Defence, can I draw to the Court's attention that in the

6 confidential filing made by the Prosecution in relation to ECMM documents

7 of the, I think it's the 10th of March of this year, it was revealed that

8 although the vast majority of the material was under Rule 70 which has

9 been the burden of our argument this morning, there's a proportion that

10 appears not to have been under Rule 70. It's a much smaller volume, and I

11 won't want that distinction to have been -- to have gone unremarked.

12 Thank you.

13 JUDGE MAY: The Court has to deal with four connected Defence

14 motions, all essentially relating to disclosure or lack of it.

15 The first is to exclude the documents, the exhibits, and the

16 testimony relating to witnesses from the ECMM, an unspecified amount of

17 testimony and exhibits; secondly, relates to the transcripts of the

18 witnesses from the Lasva Valley cases. The third relates to a requirement

19 that the Prosecutor should certify that he has been in compliance with

20 Rule 68. The fourth is a motion, long outstanding, in relation to access

21 to Lasva Valley case materials, that is the case -- the materials in the

22 other cases from the Lasva Valley. I say that's long outstanding; it is.

23 We indicated earlier that there was little that we could do about it, and

24 the position is this, that there is nothing this Trial Chamber can do

25 about that motion. It has already been passed to other Trial Chambers;


Page 23872

1 they have given their rulings. There's no power in this Trial Chamber to

2 oblige them or, indeed, in any other way to alter their rulings.

3 Accordingly, that motion is dismissed. It is a matter for other Trial

4 Chambers and not this one. And, of course, they've already -- it's

5 already been dealt with.

6 Now, the other three motions, all from the 19th of July, can be

7 put in this way, that in relation to the European Community Monitoring

8 Mission files, the ECMM files, the Defence point out that the Prosecution

9 have had access to those documents, a very large number of them, and

10 likewise the Prosecution has had access to the transcripts from the other

11 Lasva Valley cases. They are available, both sets of documents are

12 available to the Prosecutor, have been available, but are not available to

13 the Defence, or not all available to the Defence; and so therefore, they

14 argue that under Article 21 of the Statute, they have been denied a full

15 equality of arms, and the right to a fair trial, and they invite the --

16 the Defence invite the Trial Chamber, as the only remedy they say

17 available to them, to exclude that material.

18 The Prosecution point out that there can never be a full

19 equality. It does not, as they put it -- it seems right -- mean absolute

20 symmetry. They also point out -- and this, too, is correct -- that they

21 have carried out, the Prosecution, that is, all their duties under the

22 discovery rules, Rule 66(A), Rule 67(A)(i) and Rule 68. The Defence have

23 never made any request for disclosure under Rule 66(B), and, say the

24 Prosecution, that may be for tactical reasons because to do so would

25 trigger a right to reciprocal disclosure. Be that as it may, it has to be


Page 23873

1 said that no such application has been made by the Defence.

2 The Prosecution then submit that all these matters are really

3 outside their control, that the ECMM while giving them documentation, did

4 so on the condition that they were not passed on without consent, that the

5 refusal or the disinclination by the ECMM to pass on documents to the

6 Defence is no fault, say the Prosecution, of theirs. Likewise, the

7 Prosecutor is not responsible for the decisions of the other Trial

8 Chambers in the Lasva Valley cases, and therefore they say they should not

9 be prejudiced by the disclosure by the exclusion of evidence.

10 The Trial Chamber has come to the conclusion that there is force

11 in the Prosecution arguments that to exclude all the evidence, even if it

12 were a practicable proposition, which is doubtful because it hasn't been

13 specified in the motions and would require a great deal of work to work

14 out precisely what is to be excluded, even if it were practicable, is far

15 too draconian a measure, even if it were an order which the Trial Chamber

16 could make commensurate with the Statute and Rules. The Trial Chamber is

17 satisfied that it would not be right to do that. It wouldn't be in

18 conformity with the Statute and Rules to take this very draconian step.

19 The final request is that the Prosecutor should certify, and

20 following the decision of the Trial Chamber in Krnojelac, that they have

21 conducted, they have conducted the search and complied with Rule 68

22 obligations. Well, that may have been appropriate in that particular

23 case. We don't think it's appropriate in this case. It's a matter we've

24 already dealt with once and refused an application, a similar application.

25 It adds, or would add in this case, nothing to what we have been told by


Page 23874

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French pagination

15

16

17

18

19

20

21

22

23

24

25


Page 23875

1 counsel, that they are carrying out their obligations under Rule 68. And

2 that, of course, is the safeguard which both the Trial Chamber and the

3 accused have in regard to the motions which we have already dealt with,

4 that is, that the disclosure rules are being complied with, and that Rule

5 68 is under review continuously, and, as has happened during the trial,

6 exculpatory material is being disclosed. Accordingly, that motion also is

7 refused.

8 However, the matter does not end there because the Trial Chamber,

9 conscious of the necessity of ensuring a fair trial, and it may be in an

10 abundance of caution in order to ensure that, if possible, that no

11 material is overlooked, is going to pursue such means as are at our

12 disposal with the ECMM and also the member states.

13 That being so, that disposes of those motions. I think the next

14 live matter is -- are the affidavits. We've got your -- Mr. Nice, we've

15 got your response for which we are grateful, the schedule. There are two

16 motions, I should say two affidavits: Ruzica Ceko and Marko Djakovic.

17 MR. NICE: As I explained before the break, I think this morning,

18 although each witness is one we would prefer to cross-examine and as to

19 one certainly the second one, there are matters that we would challenge,

20 we don't raise any particular arguments beyond that as to why they should

21 not be let in by affidavit given the Chamber's approach to affidavit

22 evidence which we have recognised now for some months.

23 [Trial Chamber deliberates]

24 JUDGE MAY: We'll admit the affidavits. The next issue is the

25 Witness DL issue. To remind ourselves, at the end of his


Page 23876

1 cross-examination which was curtailed, there were a number of exhibits

2 outstanding which you had intended, Mr. Nice, to put to him.

3 MR. NICE: Yes, and they are listed at the end of the skeleton

4 argument of the 20th of July. If you have that document, in a way, the

5 document is almost a quicker route to the documents that I wanted to

6 present. In each case, I would submit they are clearly admissible and

7 under paragraph -- if the Court has that document, number 9, paragraph 9,

8 the Chamber had invited the Defence to make a reply in writing. I have

9 seen none so far, but I am happy to deal with it, of course, today.

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 JUDGE MAY: Which one is that?

25 MR. SAYERS: It it's a videotape exhibit, Z1428 and the exhibit


Page 23877

1 doesn't mention Witness DL. It doesn't have any connection with Witness

2 DL. It does concern our client, and it should be introduced through some

3 other witness in our respectful submission.

4 JUDGE MAY: We've got the transcript here. It seems to be a

5 transcript relating to a visit by President Tudjman.

6 MR. SAYERS: Yes.

7 MR. NICE: Your Honour, again, if I can interrupt, Mr. Sayers and

8 I am grateful to him for his assistance which I think, indeed, will, just

9 for the record take care of 1321.3, 1324.2, 1355.2, and 1355.3 and video

10 342.3 along with Exhibit 465.9.

11 Videotape 1428 is relevant for two reasons, and particularly in

12 light of the visit that is shown by President Tudjman. First, one can see

13 a vehicle having its Croatian number plates removed, which is by no means

14 insignificant. And secondly, at the arrival of a person identified in

15 subparagraph E of paragraph 9, he is shown to be on very familiar terms,

16 it may be judged, it's a matter for the Chamber with the defendant,

17 Kordic, despite it having been asserted that they had only had the earlier

18 advantage of a couple of meetings.

19 So in our respectful submission, the video which -- it may be

20 necessary for the Chamber to view to rule on its admissibility is, prima

21 facie, plainly relevant for both those reasons.

22 JUDGE MAY: What connection has it with Witness DL?

23 MR. NICE: Your Honour, it's Witness DL who is there. It's he who

24 is seen. If Your Honour has paragraph P in front of you, it's a visit to

25 Vitez and Witness DL is there. Then we have the vehicle with the Croatian


Page 23878

1 number plates removed or being removed, and then in the next clip of the

2 same event, we have Kordic on very familiar terms and so on. So that's

3 its importance and its relevance. I think what it shows is two

4 helicopters arriving. I think the second one brings this material

5 person. So it won't necessarily be revealed in the text of the transcript

6 which is there for proper completeness. It's simply on the videotape

7 itself as was set out in my little note that you've been looking at.

8 JUDGE MAY: Yes, Mr. Sayers.

9 MR. SAYERS: One other objection that we have, Your Honour, is

10 that the videotape concerns events after the war and beyond the period

11 covered by the amended indictment. I believe it was -- the visit alluded

12 to and shown on the videotape was May of 1994 in Vitez which is two months

13 after the period covered by the amended indictment. But as I have said,

14 the videotape doesn't mention Witness DL at all, and I do not know whether

15 it actually shows him. I have not been informed on that subject.

16 JUDGE MAY: Assuming, for the moment, it does.

17 MR. SAYERS: Assuming that it shows Witness DL, Your Honour, I do

18 not understand the purpose for which it is actually offered. I think

19 that's all I have to say on the -- on that exhibit, Your Honour.

20 [Trial Chamber confers]

21 JUDGE MAY: We will postpone ruling on this until we've seen it,

22 so at an appropriate time, perhaps, in September we can have a look at it.

23 MR. NICE: Certainly.

24 May I impertinently suggest one thing to the Chamber? Because

25 although I suspect the balance of the formal matters to be dealt with may


Page 23879

1 require closed or private session, there have been a couple of other

2 things mentioned today which may be capable of being dealt with in open

3 session, and since this Chamber I know would prefer things to be dealt

4 with openly at a piece, it might be convenient for that to happen.

5 One is what Mr. Kovacic was saying this morning about Trako, and

6 that, of course, is a public session issue, and I'm quite happy to deal

7 with that straight away. The second issue that I hadn't in any sense put

8 on an agenda but that I would simply like clarification on, if Mr. Kovacic

9 is able to help us, relates to an expert witness he's recently served.

10 That's a witness on language. Maybe he can't help me, but if he could

11 help me by identifying to the Court and to me its potential relevance and

12 significance, and I'll the more easily, over the next four weeks, be able

13 to decide whether to admit it, challenge its relevance, or to get an

14 expert at the expense and time that that involves to deal with it. So I

15 would be grateful for any further explanation he can give on the wide or

16 narrow relevance of that.

17 And there's a third entirely administrative matter that both

18 Mr. Kovacic and I were going to mention to the Chamber, and since that's

19 pretty well certainly non-controversial, perhaps I can very briefly start

20 with that.

21 At a much earlier stage, there have been reference, first of all

22 to a visit by the Bench and then to the production of a video. In a sense

23 that's all been put on hold, but I still have it in mind to prepare this

24 August a video showing some of the locations that have become of more

25 clear relevance as the evidence has unfolded. It may well be that


Page 23880

1 Mr. Kovacic and I will be able to cooperate on that so far as sites in

2 Vitez are concerned, because I think the people will be there for both

3 Prosecution and Defence at the same time so that will be convenient. And

4 if that exercise does get done, and if between now and when we go the

5 Chamber has any particular locations of its own -- entirely, of course,

6 without prejudice to any significance -- that it would like to see, then

7 we will of course incorporate those sites in footage of video with

8 whatever shaky and amateur hand we may prepare.

9 JUDGE MAY: Thank you. There are, while you're perhaps on your

10 feet, Mr. Nice, the question of Mr. Husic and Witness AO coming back.

11 MR. NICE: I think I dealt with one a few days ago whose timetable

12 was investigated up and until the end of July and was found not to have a

13 gap. Both of them have been pursued now, and I will report back as soon

14 as we come back in September. In each case I trust that they may be

15 accommodated within the timetable of the Defence case if they're

16 available, although it might be that it would be more convenient for them

17 to follow on the Defence case, all other things being equal.

18 JUDGE MAY: Well, the important thing is that they are called.

19 MR. NICE: Certainly.

20 JUDGE MAY: Perhaps, Mr. Sayers, while we're on the question of

21 witnesses and people being called, there are three outstanding affidavit

22 witnesses in your case. Have you anything further to report on that?

23 MR. SAYERS: I've nothing further to report, Mr. President, but I

24 will tell the Trial Chamber that we intend to make a visit to

25 Bosnia-Herzegovina next -- well, actually, this month, and we should be in


Page 23881

1 a position to update the Trial Chamber on their availability first thing

2 in September.

3 There's one issue that I might raise, if I may. There's been --

4 there have been many references to production of documents in Zagreb by

5 counsel for the Prosecution, and there has been a contention made that all

6 of these documents have been produced equally to the Defence and to the

7 Prosecution. We raised this issue yesterday, in effect, to the

8 Prosecution, and I've discussed it with the Prosecution and told --

9 informed them that I would be raising it with the Trial Chamber.

10 A large number of documents have apparently been produced to the

11 Prosecution by the Office of the President of the republic of Croatia, and

12 it has been stated in newspapers that those documents have been made

13 available to the Defence. In fact, they have not been made available to

14 the Defence. We have requested them from the Office of the President. We

15 sent several pieces of correspondence to the Office of the President

16 making those requests, and the reply is that we should seek all of those

17 documents from the Prosecution.

18 It's almost like a bad dream. We seem to be caught in the ECMM

19 vortex again. But I just wanted to let the Trial Chamber know that we

20 have not received those documents from the Office of the President, those

21 documents have not been disclosed to us, and the only response that we

22 have received to a request for them is to go and ask the Prosecution for

23 them.

24 JUDGE MAY: And have you done that?

25 MR. SAYERS: I've done that.


Page 23882

1 JUDGE ROBINSON: Do you have the broad headings of the documents

2 that have been produced to the Prosecution?

3 MR. SAYERS: No.

4 JUDGE ROBINSON: Then how are you in a position to say that some

5 documents have been produced and not been forwarded to you by the

6 Prosecution?

7 MR. SAYERS: If I may defer to my colleague Mr. Naumovski who has

8 been handling that matter and with the Trial Chamber's permission.

9 JUDGE MAY: Yes.

10 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honours.

11 Well, from some questions and documents which were read here in

12 the courtroom, I understood that those documents could only come from the

13 Office of the President of the republic of Croatia. And with my colleague

14 from the office, Leo Andreis, I sent several letters to the Office of the

15 President, and my colleague Andreis spoke to the advisor for national

16 security of the President, and he confirmed that those suspicions were

17 correct and that they had turned over to the Prosecution certain

18 documents.

19 Now, in line with this, in Croatia, the government of the republic

20 in Croatia has adopted the principle according to which all the documents

21 handed over to one side would also be handed over to the other side, we

22 thought it was our duty to request that those documents be handed over to

23 us.

24 In the first letter that I sent to the Office of the President of

25 the republic of Croatia, I specified which minutes, which records we


Page 23883

1 wanted, and I made it clear that those were the minutes of the meetings

2 held in the office of the former president of the republic of Croatia, and

3 I listed the dates of those meetings and asked that they be handed over to

4 us. However, the answer we received was that all those documents had been

5 given to the Prosecution, and that the Office of the President believed

6 that in the adversarial proceedings, the Prosecutor should be responsible

7 for the distribution of those documents.

8 So the Office of the President of the republic confirmed to us

9 that they had handed over those documents to the Prosecution, as we

10 rightly suspected, and told us to ask the Prosecution to turn those -- to

11 hand those documents over to us. And those are primarily minutes of the

12 meetings and sessions held in the office of the former president of the

13 republic of Croatia, and the second set of documents are the so-called

14 documents coming from the Croatian Intelligence Service, that is, HIS.

15 JUDGE MAY: Thank you.

16 JUDGE BENNOUNA: [Interpretation] I should like to ask,

17 Mr. Kovacic, I have the impression, having heard you today, that your fate

18 is somewhat different from the one accorded Mr. Naumovski regarding the

19 supply of information. Is my impression correct or not? Could you tell

20 us what kind of relationship or the reception that you received from the

21 Office of the President of the Republic of Croatia as opposed to the --

22 said to Mr. Naumovski.

23 MR. KOVACIC: [Interpretation] Unfortunately, Your Honour, the

24 situation there is changing from one day to the other. At some point, and

25 that was before Mr. Kordic's Defence approached them, when we first


Page 23884

1 learned, that was from the press, unfortunately, that some documents had

2 been published, it was then that through our legal assistant, and she was

3 in Zagreb at that time, responded straight away and sent two faxes to the

4 president's office and it was, I think, the next day at any rate, we

5 received the first four or five documents practically without any delay

6 whatsoever.

7 That principle was mentioned then when our legal assistant, during

8 the conversation that our assistant had with the advisor to the president,

9 we were assured then that the same documents would also be given to the

10 other party. That is that all the documents that would be disclosed to

11 the Prosecution by the Office of the President would also be disclosed to

12 the Defence.

13 However, after those initial four or five documents and they have

14 all been adduced here, we have not succeeded in getting a single new

15 document from the Office of the President. My friend, Naumovski, spoke

16 about the second set of documents from the Croatian Intelligence Service,

17 and some of those documents were produced here in this Court too. There

18 again, a complete confusion, a typical, I should say, bureaucratic red

19 tape confusion took place because as we searched around Zagreb, we kept

20 receiving assurances, and we keep receiving assurances that the Defence

21 would get everything that the Prosecution is getting. However, in

22 practice, that is not so.

23 In practice what happened is yet another thing, and that is from

24 the beginning when the Prosecution arrived or the investigators of the

25 Prosecution shortly afterwards, we, that is Defence began to scan the


Page 23885

1 documents that were placed at our disposal in the Croatian Intelligence

2 Service. After a short time, that agency was eliminated, literally,

3 verbatim, physically liquidated overnight; that is, another state agency

4 dismissed all its personnel so that these documents were taken over and

5 turned over to the state archives. That is a different institution.

6 As of then, even though while the documents were still with the

7 Croatian Intelligence Service, there, one could see to the last technical

8 detail the way in which one could get the documents, see the documents,

9 and get copies. And we had ticked off certain documents which, according

10 to that protocol that they had, we were supposed to get but we never got

11 them. Because when everything was moved from the cellars to the state

12 archive, quite simply this whole technical agreement that we've reached

13 fell through. So what is the situation now? And that is, I presume, the

14 only concern of yours.

15 The Prosecutor in Zagreb and we have very reliable information

16 there, I do not think that the Prosecution is trying to conceal the fact

17 because we are the discussing it, the Prosecution has meanwhile received a

18 considerable batch of documents, I don't know how many. We, however,

19 received a significantly smaller number of documents. And evidently, what

20 could salvage the situation, if I say, if I may use that word is to avoid

21 the discovery problem was the decision of the government to supply equal

22 number of documents, the identical documents to both parties but this,

23 however, is out now.

24 So now even with these documents, and they are now being disclosed

25 when we are -- have already gone very far in our case, again, we are now


Page 23886

1 in the Prosecution's hands. It is -- they will decide whether they will

2 disclose these documents or not, and especially documents under Rule 68.

3 During these last few days, I did use some of these documents already. If

4 I may remind you, even the Prosecution helped us with the translation of

5 two of such documents because I did not have them at that time.

6 We are trying to cooperate at least in the translation of these

7 documents if nothing else, because the registry's services simply are not

8 sufficient because there are requests for translation from two sides, and

9 these are hundreds of pages, sometimes, of identical documents.

10 It is however a fact, Your Honours, that we are not getting any

11 more documents and it is a fact also that the Prosecution is still getting

12 them. So the only conclusion I can draw from this is that we are not

13 being treated on an equitable footing. However, I think that I still will

14 leave room for doubt, perhaps time will show how things will unfold in

15 these days to come. This is all. I hope I have answered your question.

16 JUDGE BENNOUNA: [Interpretation] Yes, thank you very much,

17 Mr. Kovacic. The Prosecutor has just said the equality of arms does not

18 mean the equality of access, and on the other hand, the equality of legal

19 remedies to ensure their answers.

20 Now, Mr. Prosecutor, the documents that you are receiving from the

21 Office of the President of Croatia in pursuance of Rule 68, but the only

22 problems that you have is the problems that you received from the ECMM; is

23 that so, and this Rule does not apply to the former set of documents?

24 MR. NICE: I'm not sure about that, but I'm going to ask Mr. Scott

25 to deal with the production of these documents because he's been closely


Page 23887

1 involved with it and the story is fairly complicated. If there is any

2 matters of principle upon which you want my help after that please let me

3 know, but I'll let Mr. Scott deal with the details.

4 MR. SCOTT: May it please the Court. I can agree with

5 Mr. Cerkez's counsel that there is much that is confusing about these

6 issues and they do change sometimes from day-to-day. So on that, we are

7 in agreement.

8 The Court should understand, if it doesn't already, there are two

9 primary locations that have been the source of documents in Zagreb in

10 recent weeks or months. One is the Office of the President, and the other

11 is a collection of documents which has now been placed at the state

12 archive in Zagreb consisting primarily or at least until recently of what

13 was being called the HVO archive. That archive had, at some point, come

14 into the possession of the Croatian Intelligence Service called "HIS" and,

15 for whatever reason, not all the details are not yet known as to how the

16 Croatian Intelligence Service came to have the HVO archive. But be that

17 as it may, that has been one source of the documents.

18 As to that source, Your Honour, I can tell the Court unequivocally

19 up until a point in time that it was the Croatian government's position

20 that whatever was copied for us would be copied and supplied

21 simultaneously without the need for the Prosecutor to do anything to all

22 the Defence counsel. And by that, I mean not only the Kordic Defence

23 counsel or the Cerkez Defence counsel, but to Blaskic Defence counsel and

24 other Defence teams representing defendants before this institution.

25 Now, I know for a fact that that happened at least for a while


Page 23888

1 because we saw that process going forward. There was a time, for

2 instance, in which one of our representatives went to pick up a bundle of

3 copies and there was an exact duplicate set sitting on the same table and

4 when the question was asked, "What are those copies for?" The response

5 from the Croatian officials was, "Those are the Defence copies." So the

6 understanding was that whatever the Prosecution selects, we'll make a copy

7 for the defendants as well and vice versa.

8 We've also been assured that whatever the Defence team selected,

9 the Croatian government would make a copy for the Prosecution. And that

10 has happened at least to some extent because we have received copies of

11 documents selected by for instance by Mr. Nobilo in the Blaskic case. So

12 there is lots of people looking at documents, and at least as to the

13 archive, there was this process by the government which copies were being

14 made, produced to all sides more or less simultaneously.

15 Now it may be, and what I'm hearing now is that the practice may

16 have changed in recent weeks, and we'll certainly look into that, but it's

17 very clear from early on in our negotiations with senior officials of the

18 Croatian government that there would be this reciprocity, if you will, in

19 which copies would be made available to all sides. If that -- if that has

20 stopped happening concerning the archive, then we'll certainly look into

21 that.

22 As to the offices of the president, Your Honour, that has been,

23 again, an on-again off-again project. It's our -- it's my understanding,

24 our understanding, that various Defence counsel have had access to the

25 documents there as well. I know that Cerkez counsel obtained at least


Page 23889

1 some documents because counsel and I have talked about it. Some of the

2 same documents from HIS that the Court has itself seen. So I know that

3 some documents have come into their possession.

4 It's also reported that Mr. Nobilo has had contact with the Office

5 of the President and at least my reports, and they could be incorrect, I

6 certainly allow that they may not be accurate, but at least according to

7 some information made known to us, we had understood that Mr. Naumovski

8 had had access to the Office of the President. Be that as it may, Your

9 Honour, I will tell the Court that as to that location, the information is

10 not so clear. I can -- there is a recent letter that was sent -- there is

11 a recent letter dated the 13th of July which we saw for the first time

12 yesterday from Mr. Bagic who is an advisor to the president of Croatia for

13 national security, Mr. Bagic addressed to Mr. Naumovski's law firm, which

14 purports to indicate some undertaking or commitment on our part that the

15 documents, whatever documents was given to us by the Office of the

16 President would in turn be produced by us.

17 I can tell the Court there's never been any such undertaking. In

18 fact, the status of those documents has been the subject of great

19 uncertainty. There may be some recent developments that will now allow us

20 to not only make those documents available to the Court in terms of

21 exhibits, but also if they haven't been disclosed in some other fashion

22 already to the Defence, then to make these documents available to the

23 Defence. I'm not sure I've been very clear about that but --

24 JUDGE MAY: That's clear.

25 MR. SCOTT: -- that's where we are.


Page 23890

1 JUDGE MAY: As far as the government is concerned, as far as you

2 know, everything has been disclosed, but you are now going to look into

3 that in view of what we were told today.

4 MR. SCOTT: That's right, Your Honour.

5 JUDGE MAY: As far as the Office of the President is concerned,

6 you are looking into the question of disclosure.

7 MR. SCOTT: Yes, Your Honour.

8 JUDGE MAY: Obviously that's a matter which we may have to address

9 when we return, but the sooner it's resolved the better.

10 MR. SCOTT: That's correct, Your Honour.

11 JUDGE MAY: And you have that in mind. Yes.

12 MR. KOVACIC: Your Honours, if I may, my dear colleague Mr. Nice

13 also raised a question of a brief which I filed, I guess, two days before

14 on the expert witness for linguistic issue. It's only one sentence for

15 the answer, so -- however, I will continue in Croatian language. I

16 apologise.

17 [Interpretation] In the amended indictment in paragraph 4, it says

18 "background." There is an allegation there that we wish to refute

19 through these expert findings; namely, it says in that paragraph that --

20 perhaps I should read this in English in the original. In that paragraph

21 it says, inter alia, from the second sentence onwards, [In English], "It's

22 purposes was the establishment of closer ties, closer ties to or a union

23 with Croatia as evidenced by the HZ HB use of Croatian currency, Croatian

24 language, and the granting of Croatian citizenship by Croatia to Bosnian

25 Croats."


Page 23891

1 So I am perhaps a village lawyer, but what I understand from here

2 is that there is conclusion that based on Croatian language, on the fact

3 that Bosnian Croats were talking Croatian language, one can conclude that

4 it was, indeed, a part of international policy.

5 So I'm simply offering a simple material prepared by an expert who

6 will explain what language indeed was in use in these territories. That's

7 all. It's quite simple, and I think I put it in the brief. And for that,

8 I think it is relevant.

9 JUDGE MAY: Very well, thank you.

10 The next matter which you were going to invite us to consider was

11 the evidence of Mr. Trako. Do you want to pursue that now? Or the

12 evidence about Mr. Trako, I should say.

13 MR. KOVACIC: If I may, Your Honour, yes, and I appreciate this

14 opportunity.

15 We will move to exclude, we will move to exclude all the

16 testimonies and evidence related to that incident in the hotel murder of

17 Samir Trako. And I again, I apologise for talking English; I will talk

18 Croatian.

19 [Interpretation] That incident is not mentioned in the

20 indictment. That incident is not described in the indictment anywhere.

21 During the Prosecution case when this event was mentioned, it was

22 mentioned as a killing that was allegedly committed by our client,

23 although it doesn't say so in the indictment itself. However, bone fide

24 we thought that this was an example of the existence of count 1 -- of

25 count 2 from the indictment, and that is persecution. That is why we


Page 23892

1 reacted to that.

2 I should like to remind the Trial Chamber that as soon as this

3 incident was mentioned, we did bring in the report of the investigating

4 judge. We challenged all these facts through the cross-examination of

5 witnesses, and today finally we brought the first witness that we have

6 with regard to these facts.

7 After having heard and read the decision on the Furundzija appeal,

8 we looked into the matter once again, and we feel duty-bound to object to

9 the fact that there was no notification regarding the indictment because

10 we don't really know what to defend ourselves from. As I said, the

11 incident is not mentioned in the indictment. In fact, it was first

12 mentioned in the courtroom.

13 The Prosecutor never tried to explain whether this was, indeed,

14 only an example of persecution, which is, again, hard to assume because in

15 May 1992, it is difficult to speak about persecution. Of course, it is

16 difficult to speak of persecution at other times as well, but I have to

17 believe that it cannot be contested at all for this period.

18 Since we have no notification in terms of such an accusation and

19 the accused was not told what he should defend himself from, our defendant

20 is not aware of any such thing, we therefore move now, we believe that the

21 only remedy may be, for the Trial Chamber to rule on -- in keeping with

22 89(D), the Trial Chamber can have all the evidence with regard to this

23 incident simply struck from the record. We base this on 47(C) and also

24 with the application of Article 18, paragraph 4, of the Statute speaking

25 of the rights that we have just referred to.


Page 23893

1 JUDGE ROBINSON: Now, Mr. Kovacic, it is well settled in the

2 jurisprudence of the tribunal that the Prosecutor doesn't have to include

3 every piece of evidence that he intends to or that she intends to adduce

4 at the trial, and the indictment is merely a concise statement of the

5 facts.

6 MR. KOVACIC: [Interpretation] That is what we did take as our

7 point of departure, and that is what we thought, that this was the case.

8 We accepted that position. However, ultimately we came to the conclusion

9 that this is an event which, if it occurred the way the Prosecution has

10 presented it, in fact, that this is a completely separate criminal

11 offence. It is true that the criminal offence of murder is mentioned in

12 the indictment; however, they are precisely defined in terms of the time

13 period involved, and that has nothing to do with 1992. All of that is

14 from the 16th of April, 1993, onwards.

15 From the entire context of the indictment, from all the facts

16 alleged, we cannot infer that we are being charged with murder from 1992

17 onwards. The worst thing that we are being accused of is persecution.

18 JUDGE ROBINSON: Mr. Kovacic, it strikes me that you may or may

19 not be right, but is this the time to raise that kind of point? At the

20 end of the case you'll have an opportunity to make legal submissions.

21 MR. KOVACIC: [Interpretation] I do apologise for not having said

22 that. I had intended to.

23 The only reason, perhaps it is not right for me to say that now,

24 but there is a practical reason why I'm pointing it out now. Obviously we

25 will have to present some more evidence with regard to this particular


Page 23894

1 incident, obviously more witnesses. We have a certain approach to our

2 defence. We are not going to bring in a tank, so to speak, where we can

3 hit a fly with our hand only.

4 I simply want to know in this way whether the Trial Chamber can

5 accept what I have just said, whether all of this can be struck from the

6 record, the evidence that has been there so far. And when you rule on

7 that, then I will decide whether I am going to bring, two, three, five,

8 ten more witnesses or pieces of evidence.

9 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic, to make things quite

10 clear, could you explain how a murder can be an example of persecution,

11 because you're telling us that in accepting what was going on, that is the

12 evidence adduced by the Prosecutor regarding the killing of Samir Trako,

13 you thought that it was an example of persecution. How can that be

14 possible?

15 MR. KOVACIC: [Interpretation] Your Honour, Your Honours, you do

16 understand that we are lawyers originating from a system of civil law.

17 For us, the indictment has to be spelled out far more precisely than in

18 the common-law system. We read the indictment bona fide and interpreted

19 it accordingly. I must say that from the first time the murder was

20 mentioned, we have been analysing this. Is it only an example for count

21 2, persecution, or is it something else as well?

22 Due to a variety of detail, and I must say after the Kupreskic

23 decision which touches upon this procedurally, we thought that it was high

24 time for us to object, even more so because now we have to define our

25 defence. Obviously for practical and pragmatic reasons that we have to


Page 23895

1 take into account, we have to decide ultimately on the evidence that we

2 shall be presenting.

3 May I say that the situation is similar with another two incidents

4 as well; however, I don't think that I have sufficient elements for

5 putting this request formally. I'm referring to the two shellings of

6 Zenica that my client is not mentioned -- I mean, Zenica is not mentioned

7 in the indictment, and the shelling of Zenica can have nothing to do with

8 my client, therefore; and secondly, the Tuzla convoy. But, please, I am

9 not suggesting that you look into that now as well because I think that

10 that requires a more profound analysis, but I must say the situation is

11 very similar. Or perhaps I can put it differently: The Tuzla convoy and

12 the shelling of Zenica can, with an extensive interpretation,

13 understanding, perhaps be included. I personally disagree with it, but

14 perhaps theoretically it can be part of persecution.

15 However, I do not think that this killing can be part of

16 persecution, first of all, because of the time period that we are

17 referring to. At that time, that cannot be the case.

18 JUDGE MAY: Mr. Kovacic, I mean, you might be right about all

19 this, but this isn't the right time to argue it, is it? As Judge Robinson

20 says, this is a matter for the end of trial. You can then address us on

21 the evidence and also the legal effect of it. At the middle of the trial

22 to ask us to exclude evidence on the grounds that you've called some more

23 evidence is surely to go into the decision which we shall be making at the

24 end.

25 MR. KOVACIC: [Interpretation] Of course, Your Honour, of course.


Page 23896

1 I shall accept this. However, I cannot allow myself to be in that kind of

2 a situation. After the Kupreskic -- I'm sorry, after the Furundzija

3 decision, perhaps we can say that we -- perhaps it can be said that we had

4 to object earlier. And secondly, as you said earlier on, we have to make

5 the final planning for our defence, whether we are going to produce

6 certain evidence, or not.

7 JUDGE MAY: Mr. Kovacic, we've heard your motion. You've put it,

8 but we're against you. We think the time is the end of the trial when all

9 these matters are going to be dealt with.

10 Now, unless there's anything else for open session --

11 MR. NICE: Two very short matters the registrar invites me to

12 mention, so I do. Exhibit 1303.1, again, as one of those I listed in

13 relation to Witness DL, that's one of the exhibits I'd asked to be

14 admitted. I don't believe it's in issue.

15 Secondly, before I forget it, and since we are breaking, the

16 Chamber will recall Exhibit 653 which we've looked at a couple of times on

17 the previous few days. It's the exhibit that speaks of troops positioned

18 in certain villages. Now, that exhibit comes to us as it was produced in

19 Blaskic and as, I think, translated in Blaskic. We're not entirely

20 content with the use of the word "positioned," and it may be that another

21 term should be used, so I simply tell you I'm going to have it looked at

22 because it may not -- though reliance was placed on it in Blaskic, it may

23 not be entirely satisfactory.

24 JUDGE MAY: Very well. Can I deal with one matter, which is this,

25 that the question of a pre-rebuttal conference has been raised. We think


Page 23897

1 it's a good idea, and we will fix it for the 4th of October.

2 [Trial Chambers confers with legal officer]

3 JUDGE MAY: Mr. Nice, there is your application, motion. There's

4 one confidential motion; I don't know if the other one is confidential.

5 MR. NICE: The other one is a matter for my friends opposite, but

6 I forecast they might want it to be confidential.

7 JUDGE MAY: Yes, it may be better to deal with it confidentially.

8 We'll deal with those matters. We'll go into private session to do so.

9 [Private session]

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)


Page 23915

1

2

3

4

5

6

7

8

9

10

11

12

13 page 23898-23915 redacted Private session

14

15

16

17

18

19

20

21 --- Whereupon the hearing adjourned at 4.51 p.m., to

22 be reconvened on Monday, the 4th day of September,

23 2000, at 9.30 a.m.

24

25