1 Monday, 20
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.12 a.m.
5 JUDGE MAY: Mr. Nice, there is a matter I want to deal with first
6 before we turn to the matters before us today.
7 We have received an additional request, it's called, for
8 allocation of adequate time to prepare a final trial brief on the part of
9 the accused Mr. Cerkez.
10 I thought we made the matter quite plain during the argument;
11 however, we have received yet another document. We said and made it quite
12 plain that we were not going to follow those cases in which more than a
13 month had been granted of time, court time, in order for counsel to
14 prepare their cases, cases which they should be preparing throughout the
15 trial, in this case, one that has gone on for more than 18 months. We
16 made it plain we were not going to follow that practice. We're not going
18 We recognise that there have been late disclosure of documents,
19 which has added pressure. Therefore, balancing those matters, we are
20 prepared to add to allow some time. But the point is this: that it is our
21 duty to ensure the trials before this Tribunal are expeditious, and the
22 way to do that is to ensure that submissions and briefs are put in on
24 The order that we make for the timetable, having regard to the
25 advancement of witnesses as its been possible, is that all rebuttal and
1 rejoinder evidence will be completed in the week ending the 8th of
2 December. Written briefs will be submitted by Wednesday, 13th December,
3 4.00 p.m. That will enable the Trial Chamber to have sight of those
4 documents before the arguments on the 14th and 15th.
5 Now, we have received a huge amount of material. We have been
6 considering, in the last half hour, as to what procedure we can follow in
7 order to best assimilate and rule upon it.
8 Having regard to the fact that the transcript witnesses aren't
9 available anyway, that being -- it may be something which can be hived off
10 from the documents. We have in mind to deal with them tomorrow if we
11 permit them to be called and deal with the whole question of transcripts
13 We note that there are three witnesses whom the Prosecution
14 proposed to call. We would propose hearing argument in relation to those
15 witnesses as to whether they should be called and ruling upon that and
16 hearing any of the witnesses who we allow to be called.
17 We then turn to the exhibits. I've noted that there are no less
18 than 266. This will require time for consideration. Having heard the
19 witnesses, we will hear oral submissions. We will then, ourselves, go
20 through the documents and rule upon them. If we require additional
21 argument, we will indicate accordingly.
22 I think at the outset one should say this: that for evidence to be
23 admitted after the end of the Prosecution case, particularly at this late
24 stage in the trial, is an extraordinary proceeding and one which can only
25 be contemplated if evidence comes to light which was not available to the
1 Prosecution before the end of the close of its case, could not by
2 reasonable foresight and diligence be obtained, which is in addition
3 relevant and relevant significantly to the trial, going to the core issues
4 and not the peripheral issues in the case. We have in mind that the core
5 issues are, of course, whether the accused are implicated or not in the
7 So it's against that background that we are going to decide
8 whether to admit any of this evidence and, if so, which. And I would ask
9 this: that we bear in mind two things. We have a duty, of course, to find
10 the truth, if that is possible, but at the same time, we have a duty to
11 ensure that a trial is fair and expeditious, and we have to bear in mind
12 the rights of the accused in that connection. So there is a balancing act
13 which we have to perform in order to decide which, if any, of this
14 evidence we shall admit. In due course, we will formulate the test which
15 we will apply to the exhibits but I make those points at the outset.
16 Now, unless there are any contrary submissions, we will hear first
17 of all the submissions in relation to the three witnesses and then hear
18 the evidence.
19 MR. NICE: No contrary submissions as to procedure. Can I simply
20 bring you up to date? There's been an exchange this morning of written
21 arguments which I think will have found their way to the Court but
22 probably haven't yet found their way to Your Honours directly. I'm not
23 sure, or if so, only just; one from us, and one from the Kordic Defence.
24 Those arguments go to the merits, generally, of admission of the Zagreb
25 documents and we would like, obviously, an opportunity, there's no doubt,
1 as with the Defence, to address the Court in respect of those arguments,
2 but it seems that can certainly be postponed until the discreet issue of
3 calling the witnesses is disposed of.
4 It's obviously all related as Mr. Scott, who is going to have the
5 lion's share concerning these arguments on our behalf, says and we are all
6 entirely in the Court's hands.
7 JUDGE MAY: Well, we must adopt a procedure which is orderly; we
8 cannot just allow a free for all.
9 Now, in relation to the witnesses, you have three:
10 Mr. Tomljanovich, Mr. Prelec, and Mr. Bajwa, you propose to call.
11 MR. NICE: Yes.
12 JUDGE MAY: Well we've had the opportunity of looking at what it's
13 proposed that they should say. It may be helpful if I indicate what a
14 preliminary view is. Mr. Tomljanovich produces or deals with the
15 obtaining of the material in Zagreb. Potentially that's admissible. He
16 also gives his opinions in relation to the agencies of Croatia and
17 Herceg-Bosna, the intelligence agencies. It doesn't seem to me at this
18 stage of the trial that that sort of evidence is going to be admissible.
19 Mr. Prelec, on the other hand, gives rather more detail about the
20 Zagreb material and the obtaining of it. That -- those are matters of
21 fact and, therefore, he is potentially admissible.
22 Mr. Bajwa appears to give a summary of information available to
23 the Office of the Prosecutor relating to the HVO archive. It seems to me
24 that potentially that is not going to be admissible. We don't want or we
25 are not going to be assisted by the opinions of the investigator on those
2 MR. NICE: Your Honour, I would ask Mr. Scott perhaps to respond
3 briefly to those matters.
4 JUDGE MAY: Yes.
5 MR. SCOTT: May it please the Court. What I said to Mr. Nice was
6 that all these issues, everything the Chamber has touched on so far this
7 morning, are all clearly interrelated, and what brings us before the
8 Chamber this morning in terms of the presentation of the so-called Zagreb
9 evidence is all one piece in the sense of how it was obtained, why we are
10 where we are. In order to address that, Your Honours, we would seek to
11 make an overall presentation of our position on that which it does, as I
12 said, relate to the position of the witnesses.
13 I can say in general without going into a lot of detail, and I
14 think at some point it may become necessary in order for the Chamber to be
15 fully advised on these issues which relate to matters in Zagreb and
16 outstanding binding orders and requests for assistance, that there be some
17 closed ex parte consideration based upon the Court's knowledge of other
18 prior history in these matters. But let me say for the moment this: One
19 could argue, we don't necessarily concede this position, the Prosecution,
20 but one could argue that there might be other witnesses, so-called
21 firsthand witnesses, if I can use that terminology, to some of these
22 things different than the three individuals proposed by the Prosecutor to
23 call here.
24 The reality is, Your Honours, that despite tremendous efforts, I
25 submit, on behalf of the Prosecution, to bring this evidence before the
1 Chamber in terms of some of the witnesses, some of the names of whom some
2 of you have heard about in the past few days, the past week. The reality
3 is that none of those people have come forward. Summons sought to be
4 served in Croatia to approach these people were not, in fact, served by
5 the Croatian government. None of these people made themselves available
6 to be interviewed. And I think the Chamber has to be aware of that in
7 terms of them considering the steps and actions available to the
8 Prosecutor to bring as much information as possible to the Chamber and to
9 provide as much assistance as possible to the Chamber.
10 I would urge the Chamber to take note of the fact that this is a
11 Tribunal which takes an inclusive rather than exclusive approach or
12 philosophy towards evidence. We frequently hear that there is no rule
13 against hearsay, simply as an example. The Chamber has heard, rightfully
14 so, a large amount of hearsay evidence from all parties and, frankly, I
15 submit, on issues much more closely connected with the guilt or innocence
16 of the accused than the provenance of documents. There seems to be no
17 reason, we would submit, the Prosecution would submit, there is no reason
18 why if hearsay is admissible, even so-called double hearsay is admissible
19 on issues of more core relevance to the case, there is no good reason or
20 policy why hearsay should be excluded coming from witnesses which simply
21 lay foundations for documents that certainly do not have to be proved
22 beyond a reasonable doubt.
23 A foundation of a document, the authentication of evidence does
24 not have to be proved beyond a reasonable doubt. Simply some indicia,
25 some showing has to be made to the Chamber to assist the Chamber in coming
1 to the conclusion that for purposes of authenticity, the document is what
2 it purports to be.
3 JUDGE ROBINSON: But, Mr. Scott, might I suggest that what you
4 should concentrate on is the appropriate standing order for admitting
5 evidence at this stage of the trial. We know about the inclusivity
6 approach, but at this stage, what is the standard the Prosecution having
7 closed its case?
8 MR. SCOTT: I have to say, Judge Robinson, and to the rest of the
9 Chamber, I would disagree, and I must say I disagree respectfully with the
10 conclusions that were -- or at least the preliminary views that were
11 expressed on that. The Prosecution did not close its case on this very
12 issue and the position that the Chamber --
13 JUDGE MAY: But, Mr. Scott, the trial is virtually over and here
14 you are seeking to produce a raft of new documents. I mean, first of all,
15 you must have some consideration to the amount of documentation in a
16 case. A Prosecution simply cannot swamp a Trial Chamber in documents and
17 continue responsibly. That is one matter you've got to consider.
18 The other is that you've got to consider the balance of the
19 trial. The Defence have closed their case, and the fact that you
20 reserved, as you did, your position on these documents doesn't mean that
21 the Trial Chamber has to forget the position in the trial in which you're
22 now seeking to adduce this new evidence.
23 Judge Robinson, of course, is right, that the stage of the trial
24 is a crucial matter to be considered.
25 MR. SCOTT: Your Honour, we do not dismiss for a moment the
1 difficulties that everyone, all sides, including the Prosecution, has had
2 to deal with with the late availability of this material from Croatia. It
3 is indeed the Prosecutor who has sought this information, this evidence,
4 for years, and was frustrated at every turn, and it was not due to any
5 lack of diligence or lack of effort on the Prosecutor's part that this was
7 So I can assure the Chamber, I can ensure the entire Chamber that
8 the Prosecutor, in some respects, has been just as frustrated and finds
9 itself in a difficult situation as much as the Chamber itself, the
10 Registry, the Defence, and everyone involved in this case.
11 The reality is the material was not previously available. To
12 answer one of the Chamber's questions about could -- the nature of this
13 material or its prior availability in the exercise of due diligence.
14 I say in terms of what's been listed on the schedules that have
15 been provided to the Chamber, none of that material was available prior to
16 March 10th. The material was in the hands of the Zagreb government and it
17 was beyond our reach, all of it. Not some, not one or two, not three or
18 four, not a hundred, everything that we have scheduled was beyond our
19 reach as of the 10th of March of this year.
20 We have done everything possible to bring that material to the
21 Chamber as quickly as possible. It is simply, understanding the Chamber's
22 multiple duties, which we fully understand and respect, it is not the
23 Prosecutor's fault and the Prosecutor's case, and in fact, if I may say
24 so, the search for truth and justice in this case should not be penalised
25 by the actions of third parties when they have proven -- provided
1 documentation. That has been completely beyond our control, and I would
2 be prepared again, should the Chamber give us the opportunity and in
3 closed ex parte session, which we are prepared to do a detailed statement
4 as to every step, even in the past 60 to 90 days, of every request, every
5 exchange to get this material to the Chamber as quickly as possible.
6 Some of it was coming as recently as last week, even though we
7 might call literally every day and say, "Where is it?" We've been asking
8 for months; "Where it is?" We have done everything that we can possibly
9 do to bring this evidence, important evidence, before the Chamber.
10 The witnesses, Your Honours, can assist the Chamber in providing
11 background information going to the provenance of the documents and how
12 they relate to the case. I urge again: This evidence is not offered for
13 the purpose of proving any of these propositions necessarily beyond a
14 reasonable doubt. No single piece of evidence, no single witness. That
15 is not the measure of admissibility. Does a document or does a piece of
16 evidence standing alone so overwhelming that it is proof beyond a
17 reasonable doubt? These witnesses are being proposed to the Chamber
18 simply to assist the Chamber, to provide some information and background
19 about certain issues that relate to these documents and can provide that
20 information to the Chamber. The fact that some of it or much of it would
21 be hearsay, I don't think conclusions, I don't think it's necessary to say
22 opinions, observations based on information collected over a substantial
23 period of time and provide that information to the Chamber so that it can
24 understand and rule on this material with as much information as
1 THE INTERPRETER: Will you slow down, please, Mr. Scott.
2 MR. SCOTT: Mr. Tomljanovich, for instance, just to take that
3 example, on the intelligence communities, none of that is necessarily to
4 be considered to be establishing any of these propositions once and for
5 all with any great certainty, but the Chamber has heard and will see in
6 the documents much discussion about various of the agencies and who these
7 people are. Who is Ivica Lucic? Why is Ivica Lucic communicating with
8 Miroslav Tudjman, the head of the Croatian information service in Zagreb?
9 Who are some of these people? What are the known relationships or the
10 understood relationships about them? How did the Croatian SIS relate to
11 the Herceg-Bosna SIS? This is information that we submit would be helpful
12 to the Chamber. That's -- would be helpful to the Chamber to assess the
13 evidence and these documents.
14 And we bring, in the absence of these people from Croatia coming
15 forward, and we've sought to summons 15 people, not one appeared, the
16 Republic of Croatia did not serve, to our knowledge, one summons. That
17 leaves us in a situation - my apologies to the interpreters. I don't have
18 my headset on so I'm not getting any message. I give my apology - which
19 we're trying, in the absence of that, to provide the Chamber with as much
20 assistance as possible. And we think the presentations could be, if the
21 Chamber wishes, reasonably brief. They've made their statements, they've
22 provided the information to the Chamber, we're happy to provide them for
23 cross-examination. That's our position on that, Your Honour.
24 We have -- well, Your Honour, again, we have taken every step to
25 prove quickly as possible on these matters. The documents themselves,
1 frankly, the vast majority of these documents are HVO documents. They are
2 no different in nature and kind or substance than the hundreds and
3 hundreds if not thousands at this stage that the Chamber has received from
4 all parties. There simply is no difference. And for some different
5 standard to be applied -- for some different standard to be applied to
6 these virtually identical documents now would be, in our submission, not
7 fair, and both sides and all sides again have submitted these documents,
8 even already. The Defences have submitted HVO documents from Zagreb
9 without producing an authenticating witness, without witnesses. This is a
10 vast category of material which all sides, since April 1999, have
11 submitted to the Chamber, and this material, the vast majority of this
12 material is absolutely no different.
13 JUDGE BENNOUNA: [Interpretation] Mr. Scott, in order to be able to
14 gain some time, because we are at a late stage of the trial, you don't
15 need to remind us of everything we know about hearsay evidence, about the
16 provenance of the documents, about the fact that we have had that type of
17 document before, et cetera. You don't need to repeat all that.
18 Where you can help us, where you can be of assistance to the
19 Chamber is by telling us at this stage, i.e., as the President has
20 reminded you, 18 months after the beginning of the trial, what you can
21 tell us at this stage is amongst these 260 documents. Amongst these 260
22 documents, what are the documents that considering all the other documents
23 we have seen, all the evidence we have heard, what are the documents
24 amongst these documents that you deem absolutely essential, absolutely
25 necessary, considering the criteria that have been reminded to you? What
1 are the documents that are new, that are essential, that are relevant?
2 What are the documents that can have an impact on the guilt of the
3 accused? If you can tell us on that particular point, I think you would
4 help us moving ahead, and that's where we want to hear you. We don't want
5 to hear any type of general submissions because really, it's not the time
6 to -- for us to hear that type of thing because we've heard that sort of
7 submissions many, many times before and we have decisions of the Appeals
8 Chamber about that type of question.
9 So as professional Judges, we know all that. But it would be
10 better if you could help us, as Judge Robinson has said, to tell us at
11 this stage of the trial why you believe that such and such documents
12 should be admitted as evidence in order to bring out the truth, because
13 what we are looking for here is to move towards the truth. Thank you.
14 JUDGE MAY: Mr. Scott, what you can do is this: Rather than
15 general submissions as the Judge has said, we will, in due course, want
16 particular submissions about documents. And so if you would like to be
17 thinking and preparing as to which of the documents you particularly rely
18 on, we will hear you in due course. Which, as it were, out of the 260 of
19 the 20 you rely on or something of that sort and you can turn your mind to
20 that while we deal with the rest of the evidence.
21 Is there anything more you want to say about these three
23 MR. SCOTT: Well, Your Honour, if I can just respond to your last
24 point. I mean we will, obviously, take the Court's guidance as we always
25 do, and give that further consideration. I think -- I have to say it's
1 difficult, because when the Chamber obviously gets these documents, you
2 get some, as you say, 260 documents, obviously that looks like a lot and
3 by some measure, 260 documents is a lot.
4 On the other hand, Your Honours, if you will allow me for a
5 moment, please, to say that when you have, in the past six months, seen
6 literally hundreds of thousands of documents, literally, with no
7 exaggeration, hundreds of thousands of documents and you cut and you cut
8 and you select and you select and you get down to 260 documents which is
9 probably something less than one per cent, we have been extremely
10 selective. We have been extremely selective.
11 JUDGE MAY: I have no doubt you have been. I have no doubt it's
12 extremely frustrating having decided that these were the ones on which you
13 were going to rely to be told or to asked on which ones you rely on. Your
14 answer is: I rely on them all.
15 MR. SCOTT: That's true.
16 JUDGE MAY: The question is which are the ones you particularly
17 rely on, that's what we want to know. But we'll hear argument about the
19 MR. SCOTT: Thank you, Your Honour.
20 MR. SAYERS: Mr. President, on behalf of Mr. Kordic, let me just
21 say this. While we were preparing for the cross-examination of these
22 three witnesses at issue this weekend, and as we were considering the
23 arguments to be made in opposing parts of their testimony, we received,
24 you might confidently predict, the usual huge quantity of new documents
25 that we have been receiving on an almost daily basis for the last few
1 months. These documents here were the new documents in addition to the
2 ones that Mr. Kovacic has on his desk which we lacked the manpower and
3 muscle power to bring over today, but I'm glad he has.
4 In addition to these documents, we've received indices.
5 Apparently, the Kordic indices has grown from 13 pages to 25 pages. One
6 final comment on that, Your Honour, the physical magnitude of the
7 documents themselves that you've just seen doesn't really need any further
8 explanation. We merely ask the Court to apply its order of October 4th
9 that required a final Zagreb materials submission, a final one, by October
11 Now, with respect to these three witnesses, we have no
12 objection --
13 JUDGE MAY: We will hear, in due course, which documents were
14 supplied after the 30th.
15 MR. SAYERS: Yes, Your Honour. And that's why I just wanted to
16 make the point and I am departing from it. You've asked about these three
17 witnesses, let me address them in turn.
18 Mr. Bajwa appears to be the clean-up witness. The one who's going
19 to express his belief, essentially, that the documents that he has seen
20 consist of the HVO archive that was referred to in Dr. Prlic's March 25th,
21 1993 decision. Pure opinion, absolutely undiluted speculation and
22 conjecture on his part and we object to that. We don't object to him,
23 obviously, testifying what he's done, what he's seen, the people even to
24 whom he's spoken. That's not opinion testimony. That's within his
25 competence as a fact witness, and if he has any valuable insights to offer
1 in that regard then maybe we should hear them.
2 Turning to Mr. Tomljanovich. He's given not one, but two
3 statements. As the Court knows, he's -- he talks about first of all what
4 he's seen, what he's read, how it was produced. No problem with any of
5 that. Then he goes on to give his views about the various Croatian secret
6 service agencies and espionage agencies with apparently no basis disclosed
7 in the statement that he's provided for any expertise in that regard.
8 There's no indication given to us or the Trial Chamber that he has the
9 slightest expertise to talk about the inner workings of secret service and
10 espionage agencies or indeed whether he's ever spoken to anybody connected
11 with them.
12 We most respectfully object to any opinions of that type; they are
13 not helpful. It's just undiluted expert testimony and he's not really
14 even been identified, I think, formally as an expert even though one could
15 presume that that's the capacity in which he's proffered, and just to be
16 careful, we've filed a Rule 94 bis (B)(ii) notice just to be safe. So we
17 object to the things covered by his second statement, the matters of
18 expert testimony regarding secret service agencies.
19 In so far as Mr. Prelec is concerned, he gives seemingly factual
20 testimony about what he's seen, what he's read, the people to whom he's
21 spoken. We have no problem with that, but we do have a problem with
22 paragraph 15 of his proposed statement where he proposes to tip toe into
23 Your Honour's province and utter opinions regarding the general
24 consistency of all of the documents that he's seen, the kinds of things
25 that are necessary in order to lay the foundation required by the Delalic
1 decision of March 4 of 1998 referred to in our papers and a copy of which
2 we provided to you earlier today.
3 That's not for him to say. That's for you to say. And he is not
4 here to assess the internal content of those documents and whether they're
5 consistent with the evidence you've heard but, of course, he can talk
6 about what he's seen, the people to whom he's spoken and what he's read.
7 Opinions of the type in paragraph 15, however, are not helpful and
8 they are not within his competence and --
9 THE INTERPRETER: Could you slow down, please, Mr. Sayers.
10 MR. SAYERS: My apologies to the interpreters but I've finished my
11 presentation. Thank you very much, Your Honours.
12 MR. KOVACIC: Just for the record, Your Honour, we are joining all
13 the arguments explained by our colleagues from Kordic Defence. However, I
14 would like to add only two or three words. I will not waste the time of
15 this Court and I will continue in Croatian language.
16 [Interpretation] These documents from so-called Zagreb archives
17 are arriving in huge quantities and have been arriving for the past two
18 months. However, one thing is very important. We see from those
19 documents that their disclosure could have started much earlier. Many of
20 these documents could have been accorded foundation through some witnesses
21 who were still in the courtroom at the time, I mean Defence witnesses.
22 Some of the key witnesses who could speak about key documents were
23 in the courtroom at the time when the Prosecution evidently did have those
24 documents but did not produce them. This transpires from the information
25 of proposed Prosecution witnesses, and there is a clear information there
1 that most of the documents from the Vitez Brigade files which the
2 Prosecutors went through in Zagreb arrived in Zagreb much earlier than it
3 is being shown at present.
4 Later disclosure of those documents, that is, is not therefore
5 only the product of objective circumstances but, to a great extent, the
6 result of the Prosecution's tactic. I should like to point out two other
7 things that I believe are of consequence. First, regarding the number
8 itself, and I cannot quote the exact number, but there is quite a large
9 number of documents and it should be pointed out that they were either
10 issued by Cerkez or officers directly subordinate to him at the time
11 covered by the indictment referring to the then turned situation not
12 covering something that happened before that.
13 So what are these documents, daily orders, daily reports which
14 absolutely have no value in terms of a look backward and these are
15 documents which were, perhaps, issued in November or December 1993 or even
16 perhaps documents of the Vitez Brigade dating to January 1994. That is
17 not only that it goes beyond the period of the indictment, but it is at
18 that time when Cerkez was not even the commander. So what is the purpose
19 of those documents? Their purpose is only to create an atmosphere, to
20 create an environment in which the Prosecution can then skillfully use the
21 documents that they need and they technically deferred their production.
22 The purpose was not the truth.
23 The second thing I wish to say is these are documents, and we
24 gradually came to realise that from, I should call it curious information,
25 from various offices in these cases. Some of it is going intimated
1 through different documents, some of this was in the live testimony, but
2 these documents were in the possession of at least three different
3 information services over a period of not less than six years.
4 We could see from some objective signs that intelligence services
5 which had conflicting interests and that they even contained some
6 departments within them with conflicting interests. I believe that in the
7 world of intelligence it is a promise land for the fabrication of
8 documents, and I am confident that there are some documents which were
9 fabricated, and we shall go into that when we reach the rejoinder case.
10 But it is a fact that three intelligence services had these documents that
11 they criss-crossed half of Bosnia and half of Croatia on their way to
12 different places, and we really have no way of establishing which way is
13 authentic and which is not.
14 That is why I think that unless the Defence challenges the
15 authenticity of individual documents, then -- no, I was wrong, excuse me.
16 But as soon as the Defence challenges the authenticity of individual
17 documents, that document loses all its property value because it lacks the
18 foundation and because we cannot see the original and there is no doubt
19 that there is a climate when some documents were used or fabricated in
20 different ways or planted on individual services.
21 I have nothing against documents, but we have never received from
22 the Prosecution a proposal, a proposed list which documents we could agree
23 upon and which we couldn't. We did not do it and there are quite a number
24 of documents which are in dispute.
25 That is all that I wish to say. Thank you.
1 [Trial Chamber confers]
2 JUDGE MAY: We've considered these submissions. We broadly agree
3 with the Defence submissions as far as these matters are concerned. We
4 bear in mind the stage of the trial which we're at, which I've already
5 referred to in argument, that is, after the close of the Defence case.
6 Therefore, there can only be a limited right to call witnesses at that
8 We regard the evidence of Mr. Prelec as admissible because he
9 deals with the recovery of these documents and those are matters of fact
10 on which he's entitled to give evidence.
11 We agree, however, with the submission about paragraph 15. Those
12 are matters for argument by counsel, not by a witness.
13 We will admit Mr. Prelec. In those circumstances, we do not think
14 that Mr. Tomljanovich is necessary. The first part of his evidence is
15 covered in much more detail by Mr. Prelec, and we don't need to have it
16 repeated by Mr. Tomljanovich. The second part are matters of opinion
17 which, at this stage of the trial, are inadmissible.
18 Likewise, Mr. Bajwa, we do not think his evidence to be admissible
19 at this stage. These are summaries of information available to the
20 Prosecutor. They are matters of opinion.
21 We will hear Mr. Prelec at half past eleven. We will adjourn.
22 --- Recess taken at 10.58 a.m.
23 --- On resuming at 11.35 a.m.
24 JUDGE MAY: Yes. Let the witness take the solemn declaration.
25 THE WITNESS: I solemnly declare that I will speak the truth, the
1 whole truth, and nothing but the truth.
2 JUDGE MAY: Would you like to take a seat, Mr. Prelec.
3 WITNESS: MARKO PRELEC
4 JUDGE MAY: Yes, Mr. Scott.
5 MR. SCOTT: Thank you, Mr. President.
6 Examined by Mr. Scott:
7 Q. Mr. Prelec, let me start at the -- if I'll be allowed, just in
8 terms of your background to summarise the statement you prepared some time
9 ago, and I should say that -- do you recall that on approximately -- on
10 the 29th of October this year, 2000, a statement was prepared and bears
11 your signature on page 8? Is that correct?
12 A. Yes, it is.
13 Q. And you were born in Zagreb, Croatia, were you not, in 1966?
14 A. Yes, I was.
15 Q. You came -- your family came to the United States in 1967,
16 accepted American citizenship in 1977. After an undergraduate education
17 at Harvard you completed a doctorate in history at Yale in 1997. Your
18 specialisation in these studies was the modern history of Yugoslavia, is
19 that correct, sir?
20 A. Yes, that's all correct.
21 Q. You thereafter taught at several colleges and universities for two
22 years after receiving your doctorate. You most recently, prior to coming
23 to the OTP, had taught at the United States Naval Academy. In May of 1999
24 you took up your present post at a research office with the OTP at the
25 International Tribunal, is that correct, sir?
1 A. Yes, it is.
2 THE INTERPRETER: Will the counsel and the witness please pause
3 between question and answer.
4 MR. SCOTT: Yes.
5 JUDGE MAY: Did you hear that?
6 MR. SCOTT: Yes, Your Honour.
7 Q. Mr. Prelec, we both speak sometimes quickly, and because we speak
8 the same language, we don't leave a break between the question and
9 answer. So both of us perhaps could be reminded of a short pause for
11 A. Thank you for the reminder.
12 Q. Sir, as an historian, as a trained historian, is it correct to say
13 that you have worked in archival environments, if you will, on a number of
14 occasions, both during and after your education?
15 A. Yes.
16 Q. And as I understand it, sir, and as you have stated in your
17 statement, you have worked, in fact, in archives in Zagreb and Zadar,
18 Croatia; in Vienna, Austria; Ljubljana, Slovenia, and also in Washington,
19 D.C., the United States; is that correct?
20 A. Yes, I've worked in all those places in archives.
21 Q. Let me just ask you briefly, sir. Your position as a research
22 officer at the OTP, what does that involve? I'm sure the Chamber would
23 only appreciate a brief answer, but just what do you do as a research
25 A. The simple answer is I do research in the documentary collections
1 maintained by the Office of the Prosecutor, and I also do research in
2 other documentary collections to which this institution has access. Most
3 recently, those were archives in Zagreb, Croatia. So I look for documents
4 and I attempt to subject them to historical understanding that allows me
5 to piece together a treatment of the institutions of the states of the
6 former Yugoslavia not just with reference to crime, but simply in a
7 non-controversial way with reference to the various institutions that
8 existed there, how they functioned in law and in fact.
9 Q. Would it be fair to say, sir, that in your work as an historian
10 and someone working in archives, does the nature of your work involve
11 looking at more than a single document in isolation or do you attempt to
12 look at a range or body of documents and come to some analysis or certain
13 conclusions about the material that you review?
14 A. I always look at, if I can, documents in the context in which they
15 come to me. If one -- it's very difficult to treat or to understand a
16 document in isolation if one doesn't know where it comes from or their
17 circumstances, but when one has the opportunity to review a large
18 collection, there are things that become commonsensically apparent that
19 would not otherwise be so.
20 Q. Let me direct your attention now, then, please, specifically to
21 the access gained by the Office of the Prosecutor to a collection of
22 documents that has become known as the HVO archive or referred to as the
23 HVO archive in Zagreb or around Zagreb and I direct your attention, for
24 purposes of starting this area, if you will, on the 2nd of May, 2000. Can
25 you confirm to the Chamber that it was on approximately May 2nd of this
1 year that the OTP first gained access to some of the documents making up
2 the HVO archive?
3 A. Yes, I can confirm that.
4 Q. And can you describe to the Chamber just what the procedures and
5 steps -- the procedures that were followed and the steps taken in
6 accessing and reviewing this material in that early period?
7 A. There was a series of negotiations between officers of the Office
8 of the Prosecutor and representatives of the government of Croatia to
9 which I was not entirely privy. I can personally testify to our first
10 actual encounter or our first actual access to the documents in question
11 which took place at a house owned by the government of Croatia in the
12 suburb of Samobor.
13 We were taken to this house by persons we understood to be working
14 in one of the police or, not to be too dramatic, secret police services of
15 the government of Croatia. There, we were shown a crate of approximately
16 20 binders full of documents which had been -- which all concerned the
17 area of Central Bosnia in 1993.
18 Q. Now, at that particular time, did you know or come to know about
19 that time which agency or arm or branch of the Croatian government
20 physically possessed this collection of documents at that time?
21 A. Yes. It was the HIS which was the Croatian Information Service.
22 Q. And can you explain to the Chamber, please, your basis for saying
23 that how do you know that those documents at that time were in possession
24 of HIS?
25 A. Well, it was common knowledge. It was, I suppose, personally
1 confirmed to me at a slightly later date when I had occasion to meet the
2 gentleman who was the director of the HIS and discuss with him ongoing
3 access to the materials in question which, I think, demonstrates that they
4 were, in fact ...
5 Q. And this individual that you've just described, was that Dr. Ozran
6 Zunec who was, during the first six months of this year, approximately,
7 following the establishment of the new government, the director of the
9 A. Yes. I'm not sure exactly how long his tenure was, but it was in
10 the early part of this year and, yes, it was him.
11 Q. So the record on this point is clear, the director, the senior,
12 the number one official of HIS confirmed to you at that time this HVO
13 archive was in the possession and under the control of HIS; is that
15 A. That's correct.
16 MR. SAYERS: Your Honour, I think that the witness should not be
17 led through this.
18 JUDGE MAY: Don't lead, Mr. Scott.
19 MR. SCOTT: Very well, Your Honour.
20 Q. Now, will you go back to the time when you were at this house in
21 Samobor, and what was the process by which the documents would actually be
22 reviewed and, if they were, copies requested?
23 A. Well, we were in a large room with usually two representatives of
24 the government of Croatia. I personally took them to be some sort of
25 security officers, always at least one there with us. And we would simply
1 take the binders of documents and read them in the morning. In the
2 afternoon, another representative of the government would arrive with
3 blank forms, blank numbered forms that he would give us, and we were
4 instructed to fill out these forms with the pertinent information of the
5 documents we wished to have copied. We would do this and submit them to
6 him and the copies would be delivered to us through the Office for
7 Cooperation with the ICTY.
8 Q. And before moving on to the receipt of the copies back, who did
9 you understand or what did you understand the Office for Cooperation to
10 be? What function did it have in the Croatian government if you know, and
11 how was it related to the work that you were doing at that time?
12 A. There is nothing mysterious about this. It's a public organ of
13 the government of Croatia that is responsible for coordinating relations
14 between that government and the ICTY and the ICJ. They respond to binding
15 orders. They arrange visits. They respond to requests for assistance and
16 the like. They've been dealing with this institution for some years.
17 Q. And I mention this only because it may connect with the Chamber's
18 experience with an individual or two that the Chamber has seen here in the
19 courtroom. Is one of the individuals, perhaps the head of that Office for
20 Cooperation, is that a man named Orsat Miljenic?
21 A. Mr. Miljenic is the head of that office. I have met him on
22 several occasions in an official capacity, in that official capacity.
23 Q. It may be worth staying on that point for just a moment longer.
24 Do you understand that in addition to or above the Office for Cooperation
25 there is something called a council which is also involved in overseeing
1 and making decisions, if you will, on cooperation with the ICTY?
2 A. Yes. This is also publicly known. It's a publicly known aspect
3 of Croatian law. I'm not sure when exactly the council to which you refer
4 came into being, but it has existed at all times that I have had dealings
5 with the Office for Cooperation. It consists of a number of high
6 officials. Its president is the Deputy Prime Minister, Mr. Goran Granic,
7 and Mr. Zunec, was, during his tenure, I believe, also a member of that
9 Q. To your knowledge, does that also include the Minister of
11 A. I believe it does.
12 Q. Now, when you would request documents of those reviewed, you would
13 get copies back; is that correct?
14 A. Yes. We would get copies from the office. In this period while
15 we were working in Samobor, we would get copies from the Office for
16 Cooperation. On at least two occasions, the very first and one subsequent
17 one, I personally took delivery from the Office for Cooperation, once from
18 Mr. Miljenic and once from one of his assistants.
19 Q. And let me ask you, during that time period specifically, did you
20 have any understanding that the documents -- copies of the documents
21 requested by the Prosecution, the Office of the Prosecutor, were being
22 also made available to various Defence teams, if you will?
23 A. We were told -- I was told that the arrangement -- I was told this
24 by, among others, Mr. Zunec. The arrangement was every copy that we
25 received would also be given to the Defence and copies requested by the
1 Defence, in those words, would also be given to us. And I can confirm
2 this in at least two respects. On one occasion I waited for several hours
3 in the office, and finally a man came with two boxes of copies. I had
4 been expecting a large delivery, and I thought they were -- both boxes
5 were for me and I wanted both of them, and he said, "No. One of them is
6 for you and the other is an identical set for the Defence. You may have
7 whichever one you wish," and it was, in fact, a complete copy.
8 I subsequently saw documents that were provided to the Office of
9 the Prosecutor that had been selected or were represented as having been
10 selected by various attorneys representing various defendants.
11 Q. All right. Now, on the general question or topic of receiving the
12 copies back, can you tell the Chamber, were steps normally taken or
13 regularly taken to inspect or to verify that the copies received were, in
14 fact, the copies of the documents which had been requested?
15 A. Yes, such steps were taken. On the first delivery, I inspected
16 the copies right there in the Office for Cooperation. As the deliveries
17 grew larger, this became cumbersome and they were generally inspected at a
18 later date.
19 Q. All right.
20 A. But yes. The brief answer to your question is yes.
21 Q. Let's move on.
22 MR. SCOTT: And for counsel and the Chamber, we're on paragraph --
23 roughly paragraph 4.
24 Q. Is it fair to say that this -- again, this early period of access
25 to the HVO documents in Samobor continued for approximately eight working
1 days and then there were some interruptions; is that correct?
2 A. I believe it was seven days. I'm not sure. There were two
3 distinct interruptions. I'm not sure to which you refer, but, yes, there
4 was a period of roughly seven days, after which we were told that the
5 facility we used, the house in Samobor, would be hosting representatives
6 of the Defence. We were given a date, some days off, when we could resume
8 Q. Did you come to know in part, again because of meetings with
9 Mr. Zunec and others, that the reason for this interruption or delay was
10 because various Defence counsel were being provided at that time access to
11 this material?
12 A. Well, this is what he said. It was awkward, because we had been
13 told that we could resume work on a particular date in May. I forget
14 precisely what that date was. When we arrived in Zagreb with a small team
15 to resume work, we were told, immediately after arrival, that no, we would
16 have to wait longer because the Defence was still working. And we met
17 with -- I met with a number of other people, with Mr. Zunec in the
18 premises of the Office for Cooperation. I attempted to persuade him to
19 allow us to have continued access in some other way, perhaps at a
20 different facility or access to a different part of the collection. I
21 offered many compromises, all of which were declined at that time.
22 Q. All right. Now, moving on then. On approximately the 22nd of
23 May, as I understand it, the OTP was again allowed or was allowed to start
24 again the review of this material; is that correct?
25 A. Yes, that's correct.
1 Q. And can you tell the Chamber how long that period, if you will,
2 that period of review lasted?
3 A. It lasted one day.
4 Q. And what was your understanding of why the work came to an end at
5 that time?
6 A. It was actually quite dramatic. I received a call - I believe it
7 was late on the evening of that day - from a [redacted] of the
8 Zagreb field office, informing me that we would not be working the next
9 day because a newspaper in Croatia had published an article reviewing the
10 details of our inspection of the archive, complete with photographs of the
11 house in which we were working, names of HIS agents who had been assisting
12 us. I saw that newspaper the next morning and it did, in fact, have those
13 things in it.
14 So we waited throughout the morning in our hotel. We were told
15 that -- we were accompanied by HIS agents who were seeing who else would
16 come, but it became, subsequently, for this reason, impossible to resume
17 work at that location.
18 Q. Is it fair to say that that or continuing difficulties, if I could
19 put it this way, continuing difficulties with accessing and reviewing
20 these materials resulted in Prosecutor Del Ponte and Deputy Prosecutor
21 Blewitt travelling to Zagreb with others on the 24th [Realtime transcript
22 read in error "4th"] of May with the Prime Minister Racan, the Deputy
23 Prime Minister Goran Granic, and the Minister of Justice Stjepan
24 Ivanisevic to discuss issues and problems with the OTP gaining access and
25 having access to this material?
1 A. I can confirm that. I was in Zagreb at the time as sort of a
2 place holder, and I met Deputy Prosecutor Blewitt at the airport. I did
3 not meet the Prosecutor herself, but I saw her get off the plane and into
4 her limousine. So yes.
5 MR. SCOTT: A correction in the transcript, Your Honour. The
6 place where it says the "4th of May" should be the "24th of May."
7 Q. All right. Did you come to know then, Mr. Prelec, that after this
8 time -- sometime after this meeting, with among others the Prosecutor and
9 the Prime Minister, that an alternative or a solution was found by which
10 this HVO archive would be moved and instead of being reviewed at the -- in
11 parts, perhaps I should say, being reviewed in parts at Samobor, this safe
12 house, that instead the collection would be moved to the Croatian State
13 Archive which is actually located in what might be called downtown or
14 central Zagreb?
15 A. Yes.
16 Q. And did you come to understand that as part of these arrangements,
17 that Defence -- various Defence counsel would also continue to have the
18 same, in fact, exactly the same access to the material as the Office of
19 the Prosecutor did?
20 A. This was said to us immediately and that part of the reason for
21 moving the collection to the Croatian State Archive was because that
22 facility had -- was better able to host both representatives of the Office
23 of the Prosecutor and representatives of the Defence simultaneously.
24 Q. And were there times, in fact, during -- when you were in Zagreb
25 conducting this work that you, yourself, saw and perhaps at times even
1 interacted with various Defence counsel who were at the archive looking at
2 these documents?
3 A. I did see representatives of -- well, I did see Defence attorneys,
4 few of whom I recognised, but some I did recognise. I did not, as far as
5 I recall, interact with them. For most of the time, they were in an
6 adjacent room. However, there were several occasions on which we had to
7 share a room.
8 Q. All right. Now, just in terms of the time frame, for the Chamber
9 to understand the period over which this exercise was primarily carried
10 out, is it fair to say that from the time we are talking about now that
11 most of the work in the archive took place between approximately June and
12 the latter part of September of this year?
13 A. Yes. It continued after that period, but I would say the most
14 intense portion was the summer months you describe, and I was present
15 there working for most of that time.
16 Q. Now, when you first started work, and this even goes back to the
17 time when you were still at the house in Samobor, can you tell the
18 Chamber, please, did you have any indices or inventory or list of
19 documents available to assist you in reviewing or choosing the material to
20 be reviewed?
21 A. I don't recall any indices at the house in Samobor, but either
22 immediately or very soon after beginning work at the Croatian State
23 Archive in June, indices were made available to us in the room we worked
24 in. They were initially incomplete. We were told by archival staff -- I
25 was told by archival staff that they were actually producing them as we
1 were working, and they would periodically give me and others updated
2 catalogues or indices. These were basically lists of binders, some just
3 with titles, some with short descriptions.
4 Q. At that particular time, and I realise that the collection, the
5 size of the collection changed over time, and we will address that with
6 the Chamber in the course of your testimony but, again, directing your
7 attention primarily to the June time period, June/July, perhaps, what did
8 you understand the total volume, approximately, of the volume of material
9 that was being stored as part of the archive at that time?
10 A. Initially, several people told me that it was on the order of
11 2.000 binders. I -- one of the first days I was in the Croatian State
12 Archive, I spoke with the director of that institution, Mr. Josip
13 Kulenovic, and I asked him if I could see the actual collection, and he
14 agreed to take me there. It was in the basement in a large room and it
15 was, indeed, quite large. It was -- I did not count each individual
16 binder but it seemed to be that much or more.
17 Q. All right. And just so the record is clear, when you say
18 "binder", you're talking something like a notebook or something like I'm
19 holding up here?
20 A. Precisely.
21 Q. So at that particular time, at least 2.000 of these binders; is
22 that correct?
23 A. Yes.
24 Q. Can you just describe to the Chamber, since the Chamber has not
25 had the opportunity to see this collection itself, just describe to the
1 Chamber what this material looked like, especially on the occasion or
2 occasions when you were actually able to see the entire collection. What
3 did it look like? What was the condition of it? How was it arranged?
4 Just give the Chamber, please, an idea of what this collection was like.
5 A. Well, I only saw the entire collection once. It was a long row of
6 compact shelves, in other words, shelves that had to -- you had to work a
7 little mechanism to create an aisle between them. Most of it appeared to
8 be binders sort of arranged, you know, from one row to the next. There
9 were also some materials that were in stacks of loose or not loose paper
10 but stacks of paper bound with a ribbon or something. There were also
11 boxes of material.
12 There was also one of the trunks that the HIS staff had used to
13 convey material to Samobor. That was still there. We got back to that
14 trunk, the one we had been working on in the last day. We got back to
15 that sometime later. But the majority of at least what I saw consisted of
17 Q. And in terms of the contents of the binders, the documents
18 themselves, what kind of documents did you see? And just to make my
19 question a bit more clearer, such things as faxes, was there computer
20 printouts? What kind of material did you see?
21 A. There was a large variety. There were faxes. I didn't like
22 these, because many of them had faded. They were printed on thermal
23 paper. Some of them were very difficult to read. Others were slightly
24 better preserved. There were original documents or what appeared to be
25 original documents. And by that I mean they were on coloured letterhead
1 with a pen signature. There were photocopies of the same. There were
2 things that had printed, or appeared to have been printed on a computer,
3 various kinds of computers. There were handwritten documents, loose
4 pages, notebooks, and diaries. There were restaurant receipts and bills.
5 Thematically, the bulk of what I saw consisted of two kinds of
6 things: orders, military orders, and military reports. Orders being
7 submitted to subordinates, and orders being issued generally to superiors
8 although sometimes they were informational documents that were sent as
9 notice to subordinate units.
10 Q. Did some of the material, and I'm not saying all of it by any
11 means, but did some of the material appear to have been arranged in some
12 order in terms of there was some logical connection within a binder or
13 within some part of the collection?
14 A. In principle it was all arranged, almost all. So, for example,
15 one might find a binder that would be marked "Main Staff of the HVO",
16 "outgoing mail", just citing, as an example, January through March of a
17 certain year. And generally, most of the time, they were arranged in
18 chronological order, although sometimes for no reason they would go
19 reverse chronological order. There were a very small number that were
20 effectively randomly arranged but, yes, they were all thematically somehow
22 Q. As a further example, for instance, would you see binders that
23 were marked on the spine "Vitez Brigade"?
24 A. Yes.
25 Q. And were there other brigades, names of other brigades again that
1 were mentioned on the binders?
2 A. Actually if I could correct my previous answer, there is a
3 technicality, but I remarked Viteska Brigade in the ZP Vitez. I'm sorry,
4 could you repeat the question?
5 Q. Certainly. And did you see a similar binder for other brigades?
6 We talked about Viteska Brigade, but did you see for other -- identified
7 as related to other brigades?
8 A. Yes. Stjepan Tomasevic, Nikola Subic-Zrinjski. There may have
9 been others. There were -- it was a great number of brigades that I saw
10 in the catalogues. I'm trying to restrict my answer to ones that I looked
11 at personally.
12 Q. All right.
13 MR. SCOTT: Your Honours, in terms of paragraph 9, I think if I
14 might be allowed, based on what the witness has said so far, just simply
15 confirms that copying the ongoing request and copy procedure, if you
17 JUDGE MAY: Yes.
18 MR. SCOTT:
19 Q. Is it fair to say, Mr. Prelec, that the basic process continued to
20 be the same and that is that documents would be reviewed for a certain
21 period of time, selections would be made and the selections would be
22 communicated to the archive staff, and then copies would come back to the
23 OTP at various times?
24 A. Yes. It became somewhat more efficient. We were allowed to
25 produce our order forms on computer and to make note of what we had been
1 reading, but basically the system was the same. The only, I suppose,
2 significant difference would be that the copies would be handed over to us
3 in the archive by the archival staff as opposed to previously when they
4 had been handed over by the Office for Cooperation. And this allowed us
5 to check them for completeness which we generally did, and to request
6 additional copies if the archive had, in some cases, failed to provide a
7 requested document. It happened seldom, but it did happen.
8 Q. And are you generally familiar with the fact that at various
9 points in time, then, the copied documents would be transmitted back to
10 the Office of the Prosecutor here in The Hague.
11 A. Yes.
12 Q. Now, let me address one point that's been raised, and I suppose
13 now is as good a time as any. Could you tell the Chamber, please,
14 starting from the beginning in Samobor, was there always the practice of
15 placing a stamp on the documents, somewhere on the face of the document
16 saying something, obviously in Croatian, about it being the Zagreb or
17 archive collection?
18 A. Well, none of the documents that we reviewed in Samobor or at
19 least none of those that -- none of the copies provided to us by the
20 Office for Cooperation, based on our review in Samobor, had a stamp
21 because it had nothing to do with the Croatian State Archive. I was
22 surprised and pleased when the archive began using this stamp. It seemed
23 to lend a degree of officiality to the process, and they used it most of
24 the time. There were a few occasions when, through what I suspect is an
25 inadvertent omission, they had failed to use that.
1 There were also a few occasions or, rather, I should say at least
2 one occasion when I asked for immediate copies of documents I felt to be
3 especially urgent, and on that occasion they were made in the little Xerox
4 machine in the director's office. I don't recall whether or not those had
5 the stamp, but I could easily imagine that they might not have.
6 Q. All right. But it's fair to say, sir, that the practice of using
7 a stamp is something that developed over time and while, in fact, there
8 came to be a time when it was used most of the time, it was still not all
9 the time?
10 A. Yes. I would stand by my previous answer. Yes, it was used the
11 majority of the time; at the archive though, only there.
12 Q. All right. Now, I'm going to direct your attention to August.
13 Did you come to know that in about August that additional documents began
14 to be placed at the state archive?
15 A. Yes. We were -- I was notified by again the archival staff that
16 was working in the room that I and my team were using that they had been
17 in receipt of material from the Ministry of Defence of the Republic of
18 Croatia and that they were incorporating this material into their
19 catalogues. They showed me one of the new updated catalogues they had
20 received and showed me how to distinguish new material from old. There
21 had been some concern that they would simply fold it in thematically, but
22 they made clear that no, this material would be preserved separately so
23 that -- well, I'm probably getting into too much detail.
24 Q. No. I think the point was worth making. To distinguish it from
25 the material that had been previously reviewed; is that correct?
1 A. Yes. My particular concern was if they had put it in with -- you
2 know, in an unmarked way, then it would be necessary to duplicate the work
3 that I and others had already done now looking for newly added material.
4 So we requested them to segregate it in some way, at least in different
5 binders, and they readily agreed to this.
6 Q. All right. Now, I want to direct your attention, without leading
7 you too much except to direct you to this topic. Did there come a time
8 around August when this new material was added to the archive, when you
9 came to certain conclusions or made certain observations about the
10 relationship between new material, if I can use that term, and some of the
11 material you had seen before?
12 A. Yes. This was probably the most exciting thing that happened to
13 me there. I just, as a trial, I suppose, a trial run, requested access to
14 one of the new boxes that had arrived from the Ministry of Defence. I say
15 as a trial because it was simply marked "ZP Vitez," various things,
16 various units. And when it arrived, and it arrived immediately, as they
17 generally did, I opened it and saw that this consisted of about 20 paper
18 folders, which I flipped through, and I noticed that these folders were
19 marked with the same markings or what seemed to me at the time, and I
20 later confirmed this, the same markings as some of the Central Bosnian
21 binders we had reviewed right at the very beginning in Samobor. Some of
22 these were quite distinctive. They were codes, that were meaningless to
23 me, of seven or eight numbers, and they were indeed identical.
24 Q. Yes. Go ahead.
25 A. Okay. I then began to read through these, and I realised very
1 quickly that the material was not the same as what I had reviewed
2 earlier. I'm not claiming my memory is that perfect, but the small number
3 of documents that was in each of these binders - they were quite small -
4 was very striking, and I'm certain I would have recalled. Many of them
5 had to do, for example, with the events on and around the 16th of April of
6 1993, and these had been very few and far between in the Samobor
8 So I can't say that there was absolutely no overlap, but I'm
9 certain that a large number of those materials had not been in the binders
10 that at least I had reviewed.
11 Q. Were you able to tell by physically looking at these documents --
12 did they appear to you to have been documents that at one time had been
13 part of the same collection?
14 A. There was nothing physical about them that would distinguish them
15 from the materials that had been in the other binders or, indeed, any of
16 the binders in the archive.
17 My conjecture was that they had been separated out at one point,
18 that originally they had been where they had been created. So, for
19 example, documents of the Zrinjski Brigade had been with the Zrinjski
20 Brigade, and some of them, especially embarrassing ones, had been --
21 MR. SAYERS: Objection to the conjecture being offered by the
22 witness in this regard, Your Honour. This verges on speculation. I have
23 sat down and been fairly tolerant before making the objection, but I think
24 that he should be able to testify to what he saw, what he read, people
25 that he spoke to, rather than giving us conjectures and speculations about
1 whether materials were separated out by some unknown person at some
2 unknown point in time. And also, he can't even tell us who put the
3 original binders together, let alone whether these documents were part of
4 those original binders.
5 So I think that this is verging on speculation and conjecture.
6 Actually not verging into it. It's well into that territory, and I object
7 to it.
8 JUDGE MAY: What the witness can do is give evidence of what he
9 himself saw as far as the documents were concerned, what he had seen
10 beforehand, and what these new documents were. Beyond that, I think there
11 must be force in Mr. Sayers' submission.
12 MR. SCOTT: Yes, Your Honour.
13 Q. Two points before moving on to the next paragraph. Just so the
14 record is clear, and I'm sure the Chamber will know, but when you made
15 reference a moment ago to the 16th of April, 1993, would it be fair to say
16 that some of these particular documents that you began to see and the
17 reason they caught your attention, among other things, was that they had
18 to do with the events in Ahmici?
19 A. Several of the documents in that very box did have to do with
21 Q. And can you tell the Chamber, if you know, before we move on, is
22 the -- another intelligence service called the Security Information
23 Service or SIS, is that part of the Republic of Croatia Ministry of
25 A. Well, yes. This is, again, publicly known in Croatia. It's not a
2 Q. Now, I want to direct you then, moving forward, to a particular
3 document that you came across. And I'll just say for the record, and it's
4 not a secret, that it's now been marked as Exhibit Z692.2.
5 Do you recall coming across the document on the -- dated the 16th
6 of April, 1993, information sent by Colonel Tihomir Blaskic to Mario
8 A. I recall seeing a document that bore those names as -- well, the
9 name of Colonel Blaskic was at the bottom in the signatory position, and
10 the name of Mr. Cerkez was at the top in the addressee position. I held
11 it in my hand. On the back, it - and I will doubt I will ever forget this
12 - there were handwritten notes in pencil, very brief notes, listing four
13 Central Bosnian villages, including the village of Ahmici, and in each
14 one, there were a few words describing what was happening there of the
15 nature progressing or running into resistance or things of that nature.
16 As I recall the document, the text of the document had to do with
17 some type of inquiry about what had been happening in those villages. And
18 actually, I later found a report, and my memory fails as to precisely
19 what, but basically retyping the content of those penciled notes in a more
20 typical or conventional format.
21 Q. All right.
22 A. This is one of the ones I requested for immediate copying in the
23 director's office.
24 Q. Now, on that occasion, and could some questions come up in the
25 course of the proceedings about the original of that document, and again
1 so the record is clear, you saw the original with the penciled notes; is
2 that correct?
3 A. That's correct. And I also checked the copy as it came off the
5 Q. Now, I want to direct your attention forward, please, to the HVO
6 archive more generally. Can you relate to the Court at this time what
7 information you had and, to your knowledge, the people you were working
8 with at the time, about the existence, and that is the historical
9 existence, of an HVO archive, and can you just summarise that information
10 to the Chamber, please?
11 MR. SAYERS: Mr. President, let me just make one objection, and
12 that is to the second sentence of paragraph 12 of this summary, in light
13 of the Court's prior rulings excluding the testimony of the witness
14 referred to there.
15 MR. SCOTT: Your Honour, I will ask to be heard on that.
16 JUDGE MAY: Yes, well, if you lay the foundation for it.
17 MR. SCOTT:
18 Q. In the course of your work with these materials and having an
19 interest in the HVO archives, sir, did you ever have occasion to review
20 the testimony of General Blaskic. When I say the testimony, his testimony
21 here in The Hague or summaries of that testimony where he discussed his
22 access to the HVO archive in late 1995?
23 A. I consulted the LiveNote computer programme version of General
24 Blaskic's testimony. I was actually looking for something else that he
25 discussed immediately after mentioning the archive, but he did or at least
1 the text of the transcript indicated that he had said that he had
2 reviewed --
3 JUDGE MAY: Well, I think this is where we get into controversial
4 matter. Now, Mr. Scott, you want to address us. How are we going to be
5 assisted by this information anyway?
6 MR. SCOTT: I think the assistance is, Your Honour, that it was
7 General Blaskic's testimony in his own case and this is not being -- this
8 is not an effort to bring in wholesale his literally days and weeks of
9 testimony on central issues to the case, but simply as it relates to the
10 provenance of HVO documents and his own knowledge of having been to the
11 archive in late 1995 in Siroki Brijeg and reviewing a number of documents
12 there, in fact, including some of his own documents. And that's the only
13 purpose for which it's offered at this point.
14 JUDGE MAY: No, Mr. Scott, we are against you. This is
15 effectively bringing Mr. Blaskic's evidence in this case, and we're not
16 going to admit it.
17 MR. SCOTT: Very well.
18 Q. Did you, in part of your work in Zagreb with the archive
19 collection, come across information within the archive itself which gave
20 you insights, if you will, provided you information about the history of
21 that collection?
22 A. Well, there were numerous or I shouldn't say numerous, there were
23 several things that I found in the archive that bore on the question of
24 HVO documentation and its management. In some ways, the most interesting
25 one was a binder consisting of a large number of photographs of what
1 appeared to be boxes of binders, other binders and each one of these was
2 labelled "Siroki Brijeg, July", in Croatian, "July 1996." And I recall
3 wondering whether this was, in fact, the very archive I was looking at.
4 Many of the binders were photographed in a way that did not allow one to
5 see their spine, but at least one or two, and I didn't make a real
6 photo-by-photo inspection. At least one or two were binders whose spines
7 I recognised from the archive. There were other things that I found.
8 Q. Let me stop you there for a moment, please. I apologise for
9 interrupting, but before you move on, the particular material where you
10 found the 150 photographs, can you just tell the Chamber in what -- was
11 there some identification on that binder or on that collection where you
12 found the photographs?
13 A. Well, yes. Perhaps I should explain that the Croatian State
14 Archive divided this entire collection into about 20 subcategories and
15 this was in the subcategory devoted to the Security and Information
16 Service of the HVO. That consisted of roughly, as I recall, just over 500
17 binders. It was in that collection. I don't know if that's what you were
19 Q. Yes, that's fine. Now, apart from seeing particular binders or
20 the spines of binders, did you see anything in the photographs that
21 indicated a location and time?
22 A. Well, on the photos themselves, no. They were glued or attached
23 in some way to sheets of paper all of which said Siroki Brijeg and then it
24 said "FEAL" and I did not know, and still do not know what that means,
25 "July 1996". But the photos themselves were just photos.
1 Q. Did you -- excuse me a moment. Related to this question, did you
2 come across a document, an SIS document dated about January of 1997 saying
3 anything about this document, and if you recall that, can you explain that
4 to the Chamber, please?
5 A. Yes. This was also very interesting. I found in a binder I had
6 ordered by mistake, I had transposed a number. The collection is numbered
7 so in ordering one would say you know, "I want SIS binder number 200 and
8 something." And I went through this binder briefly and I found a security
9 report dated -- at some point in January 1997 from a man named as I
10 recall, Zvonko Sesar, describing SFOR or IFOR activity in his area and
11 specifically mentioning the concern that SFOR or IFOR might seize the
12 archive, the HVO archive, for the purposes or for the use of some
13 international institution, did not specify which one, and then --
14 MR. SAYERS: Mr. President, I believe the best evidence of what
15 this document says is the document itself, and I believe I'm not incorrect
16 in saying that this has not been provided to us.
17 MR. SCOTT: Your Honour, I am about to hand out a packet of
18 documents that relate to the balance of this witness' testimony. If I
19 could have the usher's assistance, please.
20 MR. SAYERS: Let me withdraw the objection. My assistant tells me
21 it was provided, Mr. President.
22 MR. SCOTT: Mr. Usher, I believe it's the last in the bundle, if
23 you could put on the ELMO Exhibit 2709.1. Start briefly with the first
24 page and then we'll move on.
25 Mr. Nice reminds me, if it assists in the Chamber in the review
1 that it's been doing of the documents, this is also in the so-called
2 Cerkez bundle of exhibits or miscellaneous, my mistake, miscellaneous
3 bundle of exhibits.
4 Q. If you have that, sir, is this -- looking at this document which
5 is 2709.1, does this appear to be the document that you were telling us
6 about a few moments ago?
7 A. May I examine the document?
8 JUDGE MAY: Yes.
9 MR. SCOTT: Certainly.
10 A. Yes, it does. It's possible that I had conflated two documents,
11 but this one I do recognise, in my earlier answer, but this one I do
12 recognise as seeing in the archive.
13 Q. If the usher could place the third overall page of the document
14 and just focus for a moment on the middle of that page. It's the portion
15 that says, "In order to protect the war archive material of the HVO
16 units --"
17 JUDGE MAY: Look, Mr. Scott, what is the purpose of this? This is
18 a document in 1997.
19 MR. SCOTT: Yes, Your Honour.
20 JUDGE MAY: We are trying events in 1993. We are swamped, as I
21 have said, with documentation yet you've produced more. Now, the fact
22 that somebody wanted to keep these documents away from SFOR may or may not
23 be the case. How does it assist proving the case against these two
24 accused? You're not suggesting that they were involved in this, I take
1 MR. SCOTT: The suggestion is, Your Honour, the reason we were
2 trying to assist the Chamber was that this would help to explain how these
3 documents came from Bosnia to be located in Zagreb. But with the Court's
4 comments, we'll move on.
5 JUDGE MAY: It's not disputed, as far I can see, that these
6 documents were not available to you until earlier this year. That being
7 so, it seems to me there is no issue on the point as to how you got them,
8 whether people were withholding them. All that sort of issue which, of
9 course, goes to your attempts to get the material, none of that is, it
10 seems to me, pertinent to the issue of whether or not we should admit the
11 material. That issue has to be determined now since, as I understand,
12 availability is not in dispute, that has to be determined on relevance and
13 fairness to the trial.
14 MR. SCOTT: Very well, Your Honour. I will move on.
15 JUDGE MAY: We have just considered the point. If there is some
16 relevance in this that arises from cross-examination then, of course, you
17 can have the opportunity of going into it. But for the moment, I'm -- I
18 don't think we are assisted.
19 MR. SCOTT: Very well, Your Honour.
20 Q. Now, did you see -- let me just ask you one question. I don't
21 know whether it falls within the Court's range of concerns or not, but
22 moving to paragraph 13, if I can hopefully maybe cover it with one
23 question. Did you see, among the archives, the documents that you were
24 reviewing, evidence that in fact other persons had worked with these
25 documents in connection with cases and investigations before the Tribunal,
1 before this Tribunal?
2 A. Yes, I did. The bulk of the material concerning the use of the
3 archive by persons in one way or another -- well, they were simply
4 referred to as "defence" that I saw personally had to do with interviews
5 that had been arranged and also information on various Prosecution
6 witnesses. But there was some reference to documents and access to them
7 by those same people.
8 MR. SAYERS: Your Honour, may I just inquire what the relevance of
9 that particular question is if ...
10 JUDGE MAY: That's a matter for us.
11 MR. SAYERS: The only point that I was making, Your Honour, was:
12 Is the suggestion that this Defence team had access to those materials?
13 JUDGE MAY: That's a different point.
14 Mr. Prelec, can you help us as to any indication that there might
15 have been on the documents or any information connected with them as to
16 which Defence team had had access to the documents? Anything that you saw
17 rather than anything you may have heard or rumour or anything of that
19 A. I can answer the question, Your Honour, in regard to documents
20 that I saw. There were references that I recall to a Mr. Nobilo. The
21 bulk that I saw were there and there were also references to one of the
22 attorneys involved here but in connection to another defendant that he had
23 represented. I don't know if you want me to go into more detail.
24 MR. SCOTT: Unless the Chamber wants to, Your Honour, I'm happy to
25 move on.
1 JUDGE MAY: I think I take the point. Defence counsel in
2 connection with another case.
3 A. That's precisely correct, Your Honour.
4 JUDGE MAY: Well, anybody who wants to ask any questions about
5 that can do so.
6 MR. SCOTT:
7 Q. I want to direct your attention now to specifically a
8 particular -- again, a particular exhibit that you came across, and can
9 you just tell the Chamber, in your own words, an inquiry that you made
10 concerning a particular Blaskic order? If I can introduce the matter that
11 way. Without leading you further, can you just tell the Chamber about
13 A. Well, some time ago, I was asked by one of the -- well, by
14 Mr. Nice to examine a document. This was a -- something presented as a --
15 or as a preparatory combat order. It was -- I was told it had been
16 presented in another case and also in this case. It had a date and a
17 time, that date being the 15th of April. The time, I believe, unless I'm
18 conflating, 10.00 a.m.
19 I did a search of the materials that we had found in the archive,
20 and I found an identical order which, however, had something that most all
21 of such orders had, a serial number, which appeared quite interesting
22 since all of the orders and reports that I had seen by -- bearing the name
23 of General Blaskic or Colonel Blaskic at the time, his practice of
24 numbering, they were consecutive. In other words, beginning with 1 in a
25 given month and simply go.
1 This particular one, the number was surrounded by numbers from a
2 different date, that date being what I took initially to be the 23rd of
3 April. I subsequently located another document, logbook, listing or
4 purporting to list communications coming out of the Central Bosnia
5 Operative Zone headquarters, and the document or, rather, the order
6 bearing that number in question 01-4-508 - I've looked at it many times
7 and it stuck in my mind - appeared under the 23rd of April with the same
8 subject line, addressees. I forget whether there were other criteria or
9 other descriptive terms, but it did appear in that log under the 23rd.
10 I subsequently found yet another version. This had been
11 addressed -- the preparatory order in question had been addressed to a
12 large number of recipients, as I recall, the brigades in the Operative
13 Zone. So my thought was, well, a good place to look for it would be the
14 incoming mail files of the different brigades and it did turn up in
15 several of these.
16 One included with it an order by a brigade commander of, as I
17 recall, the Zrinjski Brigade, dated the 23rd of April and retyping at
18 least the beginning of that particular report for issuance to his
20 Q. All right. Now, before moving on, it may seem like a small point,
21 but some lines ago or minutes ago now you talked about the date of this
22 document. Just so the record is clear, when you say the 15th of April,
23 you're talking about 1993; is that correct?
24 A. Yes, 1993. The "15" was penned in or written in by hand over what
25 was otherwise essentially an either typed or printed document.
1 Q. And is there anything more that you can say about that comparison
2 or the conclusion you reached about -- based on your analysis of these
4 JUDGE MAY: The conclusion is not for the witness. But what we
5 could have, Mr. Scott, is the exhibit number for the record.
6 MR. SCOTT: Yes, Your Honour. I'll ask -- provide that to you
7 momentarily. I'm sorry. Are you talking about the order or the log that
8 he's referring to or about, Your Honour?
9 JUDGE MAY: We can deal, first of all, with the order.
10 MR. SCOTT: We'll provide it to you momentarily, Your Honour.
11 JUDGE MAY: Well, according to the statement, it's Exhibit D3601,
12 tab 102.
13 MR. SCOTT: I believe that's right.
14 JUDGE MAY: Perhaps you could check that to make sure we've got it
15 right. As for the log, has that been produced?
16 MR. SCOTT: Yes, Your Honour. It's in the bundle of documents,
17 and I was about to ask the witness two questions about that. Not in the
18 bundle of documents because it's a thick document. It's separately
20 Q. But, Mr. Prelec, can you help the Chamber in terms of the
21 operating log that you used to compare the dates of these documents? To
22 your knowledge, based on your involvement in these matters, that is one of
23 the documents that's been collected and provided is to the Chamber as part
24 of this exercise, is that fair to say?
25 A. I have no idea of who it's been provided to. I really couldn't
1 answer that.
2 Q. Fair enough. You're aware that in the last number of days that's
3 one of the documents that's been collected?
4 MR. SCOTT: And I think the Chamber will see that you have it,
5 Your Honours.
6 A. I do seem to recall confirming that it had been submitted.
7 "Disclosed," I think, the term was, but I don't know where.
8 MR. SCOTT:
9 Q. Very well. Let me ask you before moving on since we're on the
10 topic of logbooks, in the course of your experience with this archival
11 material or working with it, did you come across something that at least
12 has been commonly referred to as the Blaskic diary or war diary?
13 A. Yes.
14 MR. SAYERS: Just one objection, Your Honour. I don't believe
15 we've ever heard that document being referred to in this case, so it can't
16 be commonly referred to as anything, and I don't believe I've seen it
18 MR. SCOTT: All right. I'll rephrase it, Your Honour. It is so
19 commonly referred by us but I take counsel's point.
20 Q. Did you come across an additional -- apart from the operational
21 log you were testifying about a moment ago, sir, did you come across an
22 additional journal or logbook type of material, a voluminous journal type
23 of material as part of your work?
24 A. Well, I could provide some background on this. Yes, I found
25 something that had a distinct title which I now don't recall exactly what
1 that was, but since within the Office of the Prosecutor there had been a
2 lot of discussion about -- and also not just within the office, in the
3 Croatian media, a discussion about the so-called Blaskic diary, I asked
4 Mr. Kulenovic in the archive to look for it. He said, he, you know, at
5 that particular time would do so.
6 But ultimately, yes, I did find a notebook which consisted of
7 notes by the duty officer or purported to consist of notes by the duty
8 officer in the Central Bosnia Operative Zone. There was actually a series
9 of these books. The one in question covered the early part of 1993; some
10 parts in greater detail. The section which is one of the only ones I've
11 actually read, the 16th of April, is in great detail, minute by minute.
12 Other days are -- some days are simply skipped entirely or presented much
13 more briefly.
14 Q. Very well.
15 MR. SCOTT: If I could have the usher's assistance.
16 Q. I can hand you what's been marked as Exhibit Z610, 610.1.
17 MR. SCOTT: Hand that to Mr. Prelec, please.
18 JUDGE MAY: That is the so-called war diary?
19 MR. SCOTT: Yes, Your Honour.
20 JUDGE MAY: And it's one of the documents that's been supplied to
21 us but upon which we're going to have to rule --
22 MR. SCOTT: Yes, that's correct.
23 JUDGE MAY: -- as part of the Zagreb materials aside from the
25 MR. SCOTT: Correct, Your Honour.
1 JUDGE MAY: The witness can certainly look at it but of course
2 can't produce it.
3 MR. SCOTT: Understood.
4 Q. My only question is: Is that -- do you recognise that as the
5 document that you've been talking -- describing to the Chamber in the last
6 five minutes, sir?
7 A. Yes.
8 Q. And where did you find -- where do you recall first seeing or
9 coming across that document, you or those working with you?
10 A. I found it myself in -- I forget the precise number of the box,
11 but it was in the part of the HVO archive labelled as "ZP Vitez"
12 collection. There were five or six boxes, each containing several
13 notebooks or books or records of this type, and it was in one of those.
14 Q. And --
15 MR. SCOTT: Mr. Usher, if I could have your assistance again,
17 Q. I'm going to hand you what's been marked Exhibit Z351.2. If you'd
18 just look at that for a moment. Let's just pause for the Chamber,
20 [Trial Chamber confers]
21 MR. SAYERS: Sorry to interrupt, Mr. President, but I can't find
22 this document on the many indices that we've been provided. Could the
23 Prosecution just tell us what it is?
24 MR. SCOTT: Yes. It's the operating log. That's our position.
25 Q. If I can ask you, Mr. Prelec, looking at that document, in
1 comparing these orders that you were talking a few minutes ago, you
2 referred to another log, an operational log. Can you tell us whether the
3 document that's been placed before you now is that log?
4 A. Yes, it is. It was, I think, in a different one of those boxes I
5 had just referred to, four or five boxes, and it was accompanied by other
6 logs for other date ranges.
7 Q. All right.
8 MR. SCOTT: I'll try to move - Your Honours, I appreciate the
9 Court's patience - and try to finish this before, if I can.
10 Q. Before changing topics a bit at the end of the statement here, can
11 I ask you then -- I asked you earlier about the size of the collection.
12 Is it fair to say that the size of the collection grew as the summer and
13 fall progressed?
14 A. I and -- I was told, yes, that it did grow. The last estimate
15 that I received from the Croatian State Archive was expressed in linear
16 length, which is an archival measurement indicating basically length on a
17 shelf, and that was 4 linear kilometres worth of material.
18 Q. Very well. Let me now ask you to look at --
19 MR. SCOTT: If the usher could help me again. Actually, it's the
20 same bundle. I don't know if you still have the bundle or documents or
21 not that we distributed earlier. If the witness could have those
22 momentarily, please. It may be helpful -- Mr. Usher, if you could put
23 each of these -- it may assist the Chamber, Your Honours, in reviewing
24 these documents later, just to see what they look like visually. So just
25 momentarily, if you could first put Exhibit 2834 on the ELMO.
1 MR. SAYERS: Your Honour, this appears to be an anonymous
2 document, and it appears to be undated. Could we know the provenance of
3 it and the putative date?
4 MR. SCOTT: I'm sorry, counsel. 2834.
5 MR. SAYERS: Z2834.1?
6 MR. SCOTT: We can start with that one if you like.
7 MR. SAYERS: I'm sorry. Objection withdrawn, Your Honour.
8 MR. SCOTT: 2834. Your Honour, this is a decision on the release
9 of archival material to the Croatian State Archive. Again, I'm doing this
10 primarily to identify visually for the Chamber, Your Honour, and then I'll
11 ask the count -- I'll simply ask the witness to identify the manner which
12 these documents were produced.
13 Q. Z2834.1 --
14 MR. SAYERS: This is the document to which we objected, Your
16 MR. SCOTT: Your Honour, it is titled for the record
17 "Documentation on the war in BiH", and I can tell the Chamber -- well,
18 this was produced by the Office for Cooperation to the OTP in response to
19 a request for assistance which we're free to -- we can certainly go into
20 with the Chamber separately. It was specifically -- again, Your Honour,
21 it was a request from the OTP for various reports about documents and this
22 is one of the documents produced by the Republic of Croatia in response to
23 that. The exhibit 2834.2.
24 JUDGE ROBINSON: Sorry, Mr. Scott. Where does this document
25 purport to come from? There is no indication on it.
1 MR. SCOTT: I can tell the Court that, if need be, I can produce
2 information about the transmission of it to the Zagreb office of the ICTY
3 by the Croatia Office for Cooperation. And if need be, I can also point
4 the Chamber to the request to which it responds.
5 JUDGE ROBINSON: But what you are seeking to put in evidence here
6 has no indication whatsoever as to its origin.
7 MR. SCOTT: This is exactly as we received it, Your Honour. I
8 would be happy to address it separately outside this witness if the
9 Chamber -- if it assists the Chamber.
10 JUDGE MAY: Again, is it -- I mean it's a history of what's
11 happened about the production of this material, most of which we've heard
12 about already. Given the doubt about where it comes from or the lack of
13 evidence, it seems to me that it's not going to assist us.
14 MR. SCOTT: All right. Well, Your Honour, this is some of that
15 evidence. It isn't a lack of evidence. This tells -- provides the
16 Chamber, these documents provides the Chamber produced by the State of
17 Croatia in specific response to an Article 29 request from this Tribunal
18 to provide information on these documents was presented for those purposes
19 and to, in fact, ask some of these questions.
20 JUDGE MAY: Yes. But now what we are having to determine is the
21 admissibility of these documents. I will instruct Defence counsel that if
22 there is any issue as to the availability of the documents, they must put
23 the matter to this witness so that he can deal with it.
24 MR. SCOTT: Very well, Your Honour.
25 JUDGE MAY: If there is no question to availability or there are
1 no questions asked about it, then we shall assume that these -- the
2 documents were not available and they have been made available
3 subsequently. Meanwhile, I don't think we are assisted by this history.
4 MR. SCOTT: Very well, Your Honour. If I can just finish it then
5 so that the witness doesn't have to be asked again.
6 Q. These four documents, 2834, 2834.1, 2834.2, and 2834.3, to your
7 knowledge, sir, and I'm asking: Do you have a knowledge of these
8 documents coming into the possession of the Office of the Prosecutor from
9 the State of Croatia and its agencies, if you will?
10 A. Yes. The first three to which counsel referred I saw in my office
11 and was told that they had been submitted by the Office for Cooperation.
12 Document 2834.3 appears to be part of something that was given to me and I
13 believe also Mr. Scott in the premises of the Croatian State Archive.
14 Q. All right. Let me just direct your attention to this. The
15 Chamber will see or has seen by now on the schedules of so-called Zagreb
16 documents, there's the three: Kordic, Cerkez, and miscellaneous. In the
17 interest of time, I won't even take the time to hand this out unless the
18 Chamber wishes me to, but with represent to you, Mr. Prelec, that on that
19 document, among other things is indicated as a source, that some of these
20 documents came from something called the Croatian Government OFC, Office
21 for Cooperation. And just so the Chamber is aware, how did the protection
22 of those documents differ from the documents which are simply marked "HVO
24 A. Well, the ones that are marked HVO archive are documents that were
25 inspected, for the most part, inspected by either myself or one of my
1 colleagues and copied at the Croatian State Archive or earlier in
2 Samobor. They also include documents that were provided to us by the
3 Office for Cooperation in -- but in one specific case, namely copies of
4 documents selected by various defence teams also on the basis of work in
5 the archive.
6 The documents marked "OFC" are documents submitted in response to
7 binding orders of this Chamber or another Chamber or requests for
8 assistance to the Republic of Croatia, various orders and requests. Some
9 of those appeared to be -- well, I shouldn't speculate.
10 Q. All right. That's, I think, sufficient, subject to the Chamber's
12 A. I could, I suppose, put it this way: Some documents that I have
13 seen from that OFC category also appeared and were found by me in the HVO
15 Q. All right.
16 MR. SCOTT: Your Honour, we're at 1.00 as everyone can see on the
17 clock. I'm in the Court's hands. I can probably finish in a couple of
18 minutes whether you'd like me to finish immediately following the ...
19 JUDGE MAY: Yes.
20 MR. SCOTT: Thank you.
21 Q. Now, unless the Chamber has questions about that, I'm going to
22 change to a separate category of documents very briefly.
23 MR. SCOTT: Let me just consult with Mr. Nice momentarily,
25 [Prosecution counsel confer]
1 MR. SCOTT: Your Honour, I think the next series of questions
2 probably need to be in private session. We don't have to go into closed,
3 but given the nature of this material -- the material, let me just tell
4 the Chamber, that ultimately the material itself is not -- will not be
5 protected but the -- some of the questions and the way in which it was
7 JUDGE MAY: We can go into private session.
8 [Private session]
13 Page 27256 redacted – in private session.
13 Page 27257 redacted – in private session.
13 Page 27258 redacted – in private session.
3 [Open session]
4 MR. SCOTT:
5 Q. Now, Mr. Prelec, finally then, apart from the manner in which some
6 of these materials were presented -- we're now back into public session --
7 I just want to ask you: Is Exhibit Z2833 a summary of transcripts
8 received from the Office of the President of the Republic of Croatia?
9 MR. SAYERS: Objection to that, Your Honour. We've not received
10 English language translations of most of these putative presidential
11 transcripts. They consist of literally thousands of pages.
12 JUDGE MAY: We are going to deal with the transcripts tomorrow at
13 the earliest. We are going to deal with the other exhibits first.
14 MR. SCOTT: Understood, Your Honour, but this witness was prepared
15 in identifying and preparing this summary. That's the reason I've asked
16 him now.
17 JUDGE MAY: We've got to adjourn now in any event.
18 MR. SCOTT: We are concluded, Your Honour.
19 JUDGE MAY: Mr. Prelec, will you be back, please, in an hour and a
20 half. We'll make it quarter to 3.00. Don't speak to anybody, please,
21 about your evidence until it's over.
22 --- Luncheon recess taken at 1.12 p.m.
1 --- On resuming at 2.48 p.m.
2 JUDGE MAY: Yes, Mr. Sayers.
3 MR. SAYERS: Thank you, Mr. President.
4 Cross-examined by Mr. Sayers:
5 Q. Mr. Prelec, did you write the statement dated October the 29th,
6 2000, yourself?
7 A. Yes, I did.
8 Q. And you checked everything carefully before you actually wrote the
9 statement, I take it, all of the facts?
10 A. I composed it myself. I sent it to Prosecution counsel. There
11 were some suggested abbreviations and revisions. I checked it over to see
12 if it accorded with my recollection and I'm confident it's correct, but I
13 cannot claim to have gone back and checked each individual assertion.
14 Q. But you read carefully the two specific documents that are
15 referred to in the statement, the one that is described in paragraph 14,
16 the Blaskic order of April the 15th, and the one in paragraph 11, the
17 request for information sent by Colonel Blaskic to Mr. Cerkez on April the
19 A. That's correct. I examined them carefully sometime prior to
20 composing the statement, and I re-examined the former document after
21 composing the statement.
22 Q. All right. Now, you've told us that you are an historian by
23 training and avocation, that you've been a teacher for several years, and
24 for the last year and a half you've been an employee of the Prosecution,
25 working as a research officer. Is that a fair summary of the state of
2 A. Yes, it is.
3 Q. All right. Now, in both capacities, you've had the opportunity to
4 read original documents, right?
5 A. Yes.
6 Q. And with your academic training, you're taught to bring a fairly
7 skeptical approach to documents, a cool, objective approach, testing the
8 contents of those documents to ensure that they're internally consistent
9 and externally consistent with information? Would you agree with that?
10 A. It's a fairly broad statement. I'm not sure I would put it in
11 precisely the same way. The historical profession does involve dealing
12 with documents and assessing them critically. Perhaps I should simply put
13 it at that.
14 Q. That's fair enough. But you are taught in your profession, I
15 think, as you say, to assess documents critically and not merely to accept
16 what they say on face value, right?
17 A. That's correct.
18 Q. To quote a composer from our country, George Gershwin, "The things
19 you are to liable read in the Bible, it ain't necessarily so." Would you
20 agree with that in terms of documents that you come across in your
21 profession, sir?
22 A. Well, again if I could phrase it in a way that I'm somewhat more
23 comfortable with, I don't think there are any historians that would assert
24 that everything found in every document is necessarily true.
25 Q. And that's certainly true, you would concede, sir, in the case of
1 documents whose authors we don't know, whose sources are not recited, and
2 which contain conclusion and conjectures that are not based upon any
3 identifiable documents? You would agree with that, wouldn't you?
4 A. Well, once again, I'm somewhat uncomfortable discussing things at
5 this level of generality, but I think one could draw a distinction between
6 a document intended to produce a certain conclusion and a document that
7 reports for other purposes certain facts. And, moreover, one thing that
8 we are taught to do is to work with -- within imperfection and learn what
9 we can from documentation that may not be wholly perfectly reliable
10 because such things are -- one looks for such things often in vain.
11 Q. I agree. But you would concede, would you not, that if you come
12 across an anonymous document and it contains what turns out to be very
13 serious factual inaccuracies, just outright misstatements of facts, you
14 would tend to treat that document, with your analytical skills as a
15 historian, not particularly seriously; would that be fair to say?
16 A. It would depend on the context. I think one would certainly be
17 mistaken in accepting such a document at face value, but if it addressed
18 the subject on which one had interest, one would, I think, be fully
19 justified in attempting to confirm or refute the assertions made in such a
20 document that that document alone would be inadequate to prove. That's
21 the way I would -- and I have addressed such things.
22 Q. All right. Instead of revolving in the area of generality. Let's
23 see if we can talk about some concrete matters, Mr. Prelec.
24 MR. SAYERS: If I can just ask the usher to put this document on
25 the ELMO, this was previously marked as an exhibit D344/1, Tab 8.
1 But it's just in the Croatian, Your Honours, and I just use this
2 as a exemplar to make a point.
3 Could you move it up to the signature line, please.
4 Q. Now, here we have a document that appears to be signed by Colonel
5 Blaskic. It has an official Central Bosnia Operative Zone or Travnik
6 stamp, and official stamp. It's got on the bottom left-hand corner what
7 appears to be a packet radio receipt stamp.
8 If you just move to the top of the document, Mr. Usher.
9 The document appears to have a correct number up at the top and
10 although it's not an especially felicitous copy, it appears to be on
11 Hrvatska Vijece Obrane Herceg-Bosna letterhead, and then it has on the top
12 right-hand corner a stamp that you've identified as the Zagreb archival
13 stamp; correct?
14 A. Yes. The only slightly peculiar thing is it seems to have been
15 recopied from a -- possibly slightly reduced, but your description matches
16 the appearance of the document as I see it.
17 Q. Yes. And the only point I'm making is as you know with your
18 background in Yugoslav history, the country has a rather long history of a
19 bureaucratic tradition and documents like this bearing proper signatures,
20 seals, and numbers are documents that you, as a historian, would tend to
21 treat as authentic.
22 A. Yes. If I could introduce one qualification. There's also the
23 factor of where the document is found. It's one thing to pick it up on
24 the street. It's another -- the context is important, but I would concur
25 with your statement. I would tend to value such things.
1 Q. Yes. And my understanding from your testimony, Mr. Prelec, is
2 that all documents that were produced to you, your colleagues, and your
3 office had these archival stamps on the documents such as the one that we
4 see here on the top right-hand corner of the document that's currently on
5 the ELMO?
6 A. That actually wasn't --
7 JUDGE MAY: Not all the documents.
8 MR. SAYERS: With the exception of the ad hoc copies.
9 JUDGE MAY: And the Samobor documents.
10 MR. SAYERS: That's true. But the Samobor documents were produced
11 in May of this year, Your Honour.
12 Q. My question was: All of the documents that were produced to you
13 after June of this year following the Samobor episode, those documents
14 were produced with the archival stamps on them with a few exceptions as
15 you've described?
16 A. The great majority, yes.
17 Q. Now, you say that you had 500 SIS binders or you saw 500 Security
18 and Information Service binders. Were these Croatian -- Republic of
19 Croatia SIS binders or Bosnia-Herzegovina SIS binders?
20 A. I didn't actually physically see all 500 that I assume were in
21 that room. When I say 500, there was like a catalogue listing 500. And
22 to answer your question, they were the SIS of Herceg-Bosna.
23 Q. You also described a book or a document that's been marked as
24 Exhibit Z610.1, and according to the spine of the document delivered to
25 us, this is a book of observations of the officer on duty in the SB.
1 MR. SAYERS: I wonder if the usher could give you a copy of
2 Exhibit 610.1.
3 JUDGE MAY: Have you finished with the other exhibit, Mr. Sayers?
4 MR. SAYERS: Yes, Your Honour, I have. Thank you.
5 JUDGE MAY: Now, this is the logbook or however it's described?
6 MR. SAYERS: Yes. There is only one thing that I would like to
7 draw to the Court's attention in considering this document, Your Honour,
8 if I may.
9 JUDGE MAY: Perhaps the witness could have it. In due course, we
10 are going to have to consider the admissibility.
11 MR. SAYERS: Precisely, Your Honour. I hope this question will
12 help you in that inquiry.
13 Q. If you would just turn to pages 22 and 23 of this document, sir,
14 which purportedly record events at the end of January of 1993 between
15 January 29th, 1993 and January 31st, 1993.
16 A. Excuse me, the copy that I've been handed doesn't have page
17 numbers. Could you repeat the date, please?
18 Q. Yes. January 29th to January 31st.
19 A. Is this the correct page?
20 Q. All right. Now, there's a page, page number 10, I believe, on the
21 top of the Croatian version. Anyway, do you see that?
22 A. No, I'm sorry.
23 Q. Well, why don't we --
24 A. Perhaps the usher could assist me. Oh, it's the next page. Thank
1 MR. SAYERS: Actually, could we have that on the ELMO, please,
2 Mr. Usher? Thank you.
3 Q. Now, for this entry in January 1993 -- you speak Croatian, don't
4 you, Mr. Prelec?
5 A. I do.
6 Q. Good. Could you just read the bold entry right in the middle of
7 the page, please?
8 A. In Croatian?
9 Q. Could you --
10 A. Or translate?
11 Q. If you can translate it.
12 A. Yes. "War diary from 15 04 1993.
13 Q. And how does it come that that entry is right in the middle of a
14 page dealing with events in January 1993, do you know?
15 A. I have no idea.
16 Q. Have you made any inquiries along those lines?
17 A. No. And, frankly, I wouldn't know where to start. It appears to
18 have been written over something else.
19 Q. And you don't know who wrote it over something else or when, do
21 A. No, that's correct.
22 Q. Thank you. I'm finished with that document.
23 It would be fair to say that you don't actually know who wrote the
24 entries into this document, do you? Right?
25 A. Partly correct. They are written in what appear to me several
1 different hands, and there are some names scattered throughout and
2 including, I believe, at the end, of persons who are familiar to me, but
3 at this point, I could not tell you who wrote the individual entries.
4 Q. The fact of the matter is that you've not spoken to anybody who
5 has personal knowledge of that document and can tell you what it is and
6 when it was written?
7 A. That's correct.
8 Q. Very well. Now, the Prosecution has had access to so-called
9 Zagreb documents, I believe, or at least some, 20 boxes or so, 20 binders,
10 since May the 2nd this year, right?
11 A. That was when our access began, as I described it much more fully
12 in direct examination.
13 Q. Yes. And there is no question that following the move of these
14 documents to the Croatian State Archive, access to the Prosecution to
15 these documents has been granted on a preferential basis, is there?
16 A. I'm not sure how I could say that.
17 Q. Well, I'm just reading from the third page of --
18 A. In fact, I would say --
19 Q. -- Z2834.1, this anonymous document that the Prosecution has made
20 reference to, and it says: "The Defence of all indicted Central Bosnia
21 Croats examined about 30 binders. Less than 500 pages of documents were
22 copied and given to the Defence teams, even though more were requested.
23 The reason for this imbalance is that the ICTY Prosecution requested and
24 received priority in examining documents."
25 Is that an accurate statement of fact, Mr. Prelec?
1 A. I really can't address the degree to which various Defence teams
2 had access beyond what I testified to earlier today because I have no
3 knowledge of that beyond, again, having seen individual members present at
4 the archive and having been told in very general terms by Mr. Zunec.
5 Q. Do you have any reason to believe that the imbalance recited in
6 this document is incorrect?
7 A. No.
8 Q. All right. The document also goes on to recite on the first page,
9 under the "Delivery of Material" section, that materials arrived at the
10 Croatian Information Service in two deliveries, one in July of 1996, when
11 about 200 crates of material were delivered, and the second in April of
12 1999 when a truckload of material was delivered and stored in a hallway.
13 Now, can you throw any light on what documents were delivered to
14 the Croatian Information Service in July of 1996, sir?
15 A. No. I would assume that --
16 Q. There is no need to assume.
17 A. No.
18 Q. You know or you don't?
19 A. No.
20 Q. And the same is true of the documents assertedly delivered, this
21 truckload of documents in April of 1999; right?
22 A. I'm sorry. Could you repeat the question.
23 Q. Yes. You don't know what documents were delivered to the Croatian
24 Information Service, or HIS, in a truck in April of 1999, do you?
25 A. Specifically, no.
1 Q. And these documents, according to this record anyway, were
2 delivered. They arrived in a state of disarray, without any kind of
3 register, and then exchange receipt was not made in either case.
4 Now, you say that you saw a list of documents or some sort of an
5 archival index that assisted you in selecting particular documents of
6 interest to you, right?
7 A. Yes, that's correct.
8 Q. And could you tell us who prepared that index and when?
9 A. Well, the one that I used was prepared or I was told it was
10 prepared by the staff of the archive, the Croatian State Archive,
11 subsequent to the arrival of the documents though, they did have some
12 fairly rudimentary indices that had been prepared earlier.
13 Q. By whom?
14 A. My understanding is Mr. Dvor Marijin.
15 Q. You have no reason to believe though that the facts recited in
16 this document, Z2834.1, to the effect that these documents arrived in a
17 state of disarray without any kind of register, is incorrect, right?
18 A. No. I have no reason to believe that.
19 Q. All right. Now --
20 THE INTERPRETER: Could you please make a break between the answer
21 and the question?
22 MR. SAYERS:
23 Q. -- have been of assistance to you. They've tried to help you in
24 every way turning around requests for copying in a very expeditious way.
25 I think you said that in your direct examination, correct?
1 A. I did refer to several instances. I would not be correct in
2 making that as a general statement. There was enormous variability in
3 these things.
4 JUDGE MAY: Mr. Sayers, you're being asked to have a break between
5 question and answer, and, of course, between answer and question.
6 MR. SAYERS: Mr. President, there are some times when I can't just
7 help myself, but I will do my best to exercise some self-restraint here.
8 Q. Sir, it would be fair to say, would it not, that you and your team
9 saw these documents for the first time this year?
10 A. Well, there were some -- it depends on how you mean "document."
11 There were copies of same of the documents that had been obtained in other
12 means, several that I can think of. There was, I understand, a seizure
13 operation in Travnik.
14 Q. Yes, but I'm talking about the archival documents that you
15 examined in May and June and thereafter. The point is, those particular
16 documents were produced to you in the order in which they were produced
17 for the first time this year?
18 A. That's correct.
19 Q. All right. And you really don't have the slightest idea of how
20 many people have had access to the component parts of these documents
21 during the last six and a half years, do you?
22 A. Well, for some periods of time, the document to which you referred
23 earlier had some comments that no one had access, but it doesn't cover the
24 entire time period. So I suppose the answer would be no.
25 Q. Right. You can't tell whether documents have actually been added
1 to the archive or subtracted from it, can you?
2 A. No.
3 Q. You can't tell, in fact, sir, that this is indeed the so-called
4 HVO archive, can you?
5 A. I'm certain it is. I don't know in what degree of detail you'd
6 like me to pursue that.
7 Q. Do you know whether the Security and Information Service in
8 Croatia and in Bosnia-Herzegovina had access to these files before they
9 were produced to you during the six and a half years before you saw them?
10 A. The Security -- the SIS of Croatia and Bosnia-Herzegovina, well,
11 since the archive itself did make reference to that service, at least that
12 service in Bosnia-Herzegovina, having those documents and there was
13 correspondence between them and the sister service in Croatia, I could
14 indicate that insofar as those documents are correct, that they did have
15 access, at least at some periods of time. But personally, no.
16 Q. All right. And you, have you seen documents that would indicate
17 that the SIS, the Bosnian Croat SIS component of this archive was actually
18 moved around to Bosnia-Herzegovina by the people in charge of that agency
19 in Mostar, Ivica Lucic being one of them?
20 A. There were references -- at this point, the only reference that I
21 recall is to a removal from Bosnia-Herzegovina in what appeared to be the
22 summer of 1997, and there was a document indicating an imminent planned
23 move in May, but also the document that you referred to earlier indicated
24 arrival of some documents in 1996.
25 Q. You're not aware, for example, of Mr. Lucic breaking up the SIS
1 archive and moving it to various locations in the country outside of
2 Mostar assertedly to keep it out of the hands of a man by the name of
3 Mladen Naletelic also, I believe, known as Tuta?
4 A. No. I really don't know anything about that and generally know
5 relatively little about the activities of Mr. Lucic.
6 Q. And, sir, you can't say that the so-called Service for Protection
7 of Constitutional Order, the SZUP, the Ministry of the Interior, MUP, and
8 the operatives of the Croatian Information Service, you can't tell whether
9 they had actually been provided access to all of the documents that were
10 given to you earlier this year in the intervening six and a half years
11 since apparently some of them, anyway, were generated?
12 A. I couldn't speak to the first two instances you mentioned;
13 however, I would simply recall my earlier testimony as to custody of the
14 documents by the Croatian Information Service.
15 Q. Now, have you ever seen any logbooks that show who has in fact had
16 access to these documents?
17 A. No.
18 Q. All right. Now, we were shown a recently-produced document; it's
19 been marked as Z2834.2, one of the documents that the Prosecution's
20 referred to. Did you know that this so-called archival material was not
21 transferred directly to Zagreb, it was stored in a facility, a military
22 facility in Split called Lora?
23 A. Yes. I've seen multiple references to at least some of the
24 material having been stored in the facility to which you refer, the port,
25 the military port of Lora. My assumption has been that at least one,
1 probably two shipments were stored there.
2 Q. All right. You've read the letter I've dated November 9th, 2000
3 from Major Cindy Radic sent to the Office for Cooperation with the ICTY, I
4 take it?
5 A. I have read that letter.
6 MR. SAYERS: I wonder if we could just put this on the ELMO.
7 Thank you. Start with page one in the English.
8 Q. This document states that a large amount of HVO archival material
9 is located in the military complex Lora. Do you know, sir, what kinds of
10 archival material are located in this facility?
11 A. No. Excuse me, could you refer me once again to where in the --
12 Q. Yes. It's the first paragraph right in the middle. It says, "A
13 large amount of HVO archival material is located in the military complex
15 A. My impression is that I could consult the Croatian language. It
16 seems to indicate that this was a past event since it refers immediately
17 thereafter to a decision in March. We did have discussions with various
18 representatives of government of Croatia that mentioned material in Lora
19 in addition to the material in the custody of the Ministry of Defence as
20 represented as two different issues.
21 Q. Yes. But you've never been down to Lora to take a look at what it
22 is. The custodians of those documents actually have in their possession;
23 is that fair to say?
24 A. No. I tried to persuade the OTP to send me down there in the
25 summertime, but they, for reasons unknown to me, declined.
1 Q. The letter goes on to say, "The material was stored in eight
2 offices without any systematic arrangement and was in absolute disorder."
3 You've got no reason to disagree with that characterisation of the way
4 these records were kept; right?
5 A. I really couldn't comment. I have no firsthand or other hand
6 knowledge of conditions in Lora.
7 Q. And in fact the author goes on to say that operatives in the Split
8 department stated that in the time from the original storing of this
9 materials, nobody accessed it and this was indicated by the state in which
10 it was found completely disarrayed.
11 A. If you would allow me to amend my previous answer. At a meeting
12 with an assistant Minister of Defence of the Republic of Croatia, I and
13 several others were shown another set of photographs prepared, he said, by
14 the military police of various documents held in various places in
15 Croatia. Some of these were prefaced by photographs indicating Split as
16 the location so ...
17 Q. So your understanding is that there was documents all over the
19 A. At several location. They did not appear, and this is in response
20 to your earlier question, and this is the reason for the correction, they
21 appeared to have been stored in cabinets, what appeared to be metallic
22 cabinets, again in binders. Disorder, I think, would perhaps be too
23 strong a term although there's no way to tell from the photos.
24 Q. Let's take a look at the second page, second paragraph. The
25 author of this document, after stating on page one that there was no list
1 of any material found just as in the first document we looked at, states
2 that the idea of coming up with a list cropped up but it wasn't feasible
3 because of the short time frame, the disorder of the material, and the
4 very poor physical state of the material caused by poor storage, being
5 exposed to high temperatures, humidity, and rodents.
6 A. Mice, yes.
7 Q. Now, you've got no reason to believe that that description of the
8 storage conditions is not completely accurate, do you, sir?
9 A. I can't go beyond my previous answer as to what I assume is a
10 subset of storage conditions which I saw photographically. The documents
11 that -- no, I can't.
12 Q. All right. And once again, you cannot tell us who has had access
13 to those documents during the time that they have been residing in Lora?
14 A. No, I cannot.
15 Q. Or anywhere else these documents are located. Wherever those
16 locations are, the same is true. You do not know who has had access to
17 those documents or for how long?
18 A. Those are all military facilities. In my earlier reference, they
19 weren't at a random, but no.
20 Q. All right. Now, the next document that you were asked to identify
21 for us was a letter supposedly written by Dr. Josip Kulenovic and he
22 describes the state of affairs on page two. He being, I believe, the
23 director of the state archives?
24 A. That's correct.
25 Q. He tells us that, "The material was located in a hallway of the
1 archival storage. Nobody knew what to say about the type or amount of
2 material involved. A large portion of the material was found in a state
3 of disarray with," he says, "the exception being that part of the material
4 of the command of the Vitez formation area and individual subordinate
6 You've no reason to disagree with that characterisation of the
7 manner in which this material was kept, right?
8 A. Well, I'm somewhat hampered. I have seen that letter but I have
9 not read it as opposed to the others. But from what you read now, I
10 suppose it's not a surprise that the Vitez material was in some shape by
11 the time he received it, since prior to that it had been accessed by us
12 and the Defence.
13 Q. And I'll come back to that. But on page six of this letter,
14 Mr. Kulenovic, the state archivist, goes on to say that the military
15 police documents were thrown about without chronological or thematic
16 order. You've got no reason to believe that that's not the case, do you?
17 A. Well, as it turns out, the very first binders I saw when I went
18 with Dr. Kulenovic to inspect the archive were military police, and they
19 seemed to be in order, but I really can't help you even if I could, I
21 Q. Yes. And you don't know whether it was Mr. Kulenovic himself who
22 had imposed order out of chaos and actually put those documents into the
23 order and state in which they were produced to you, do you sir?
24 A. I would have no reason to believe he had, but again I can't
25 provide positive information on that.
1 THE INTERPRETER: Will the counsel and witness please make a break
2 between question and answer.
3 JUDGE MAY: You are asked to break after your questions and after
4 the answers.
5 MR. SAYERS:
6 Q. Now, these materials from the Department of Defence, the HZ HB and
7 HR HB Department of Defence or Ministry of Defence were stuffed into
8 binders without thematic order according to Mr. Kulenovic.
9 A. Once again, I have not read this but I can say that something that
10 appears to be similar to or identical to the material to which you refer
11 was shown to me briefly in a meeting by Mr. Kulenovic as material he had
12 received upon receipt of the HVO archive and to which I referred earlier
13 in my statement that there was some rudimentary description that had been
14 prepared prior to the catalogues prepared by the archive.
15 The reason I bring this up is if that's the case, then it would be
16 misleading to refer to this as a statement of Mr. Kulenovic's; it would
17 rather be a communication by Mr. Kulenovic of someone else's statement,
18 presumably Mr. Marijin's. But without further examination, and at least a
19 reading of this, I couldn't, again, say to what degree it's an accurate
20 description of what was received.
21 Q. Yes. But when the HIS materials were transferred over to the
22 Zagreb archive, it was Mr. Kulenovic who received those materials actually
23 and not you, correct?
24 A. Well, he was the head of the institution. I don't know who
25 actually received them. I doubt it was him but, yes, it was his
1 institution and not me.
2 Q. And it was only after the institution, the archives had received
3 these materials, processed them, organised them, and so forth that they
4 were produced to you; right?
5 A. As I stated earlier, the organisation process had only just begun
6 when we began working with the documents and it continued in parallel. So
7 my understanding was that not very much had been done by the time we
9 Q. Have you ever seen any HZ HB or any HR HB regulations dealing with
10 how documents were supposedly admitted to any HVO archives? How they were
11 dealt with?
12 A. There were references. There were binders that I saw listed in
13 the catalogue that referred to handover of archival materials from one
14 custodian to another, but the pressure -- the time pressure I was under
15 was enormous, and I thought the likelihood of finding relevant material
16 there was small. There were a large number of these binders.
17 So to precisely answer your question, I did see reference to such
18 a thing, but I did not see the thing itself.
19 Q. Now, do you know how many locations in which the records of the
20 HZ HB and HR HB were originally kept, official records of either of those
22 A. Do you mean -- could you be more specific, please? The central
23 government or what particular organ?
24 Q. Let's just take, for example, the Department of Defence of the
25 HZ HB. Where did the Department of Defence actually keep its records,
1 Mr. Prelec? Can you tell us?
2 A. No. My assumption would be initially they would keep them in
3 their offices and then they would be transferred to another location that
4 I'm not aware of.
5 Q. That's an assumption and you just don't know, do you?
6 A. That's correct.
7 Q. And the same is true for the Department of Defence of the Croatian
8 Republic of Herceg-Bosna?
9 A. That would be easy to find out since it would be a matter of
10 legislation, but I don't know offhand.
11 Q. Have you yourself ever spoken to anybody, any official of the
12 Croatian Information Service about these documents other than Mr. Ozren
13 Zunec earlier this year?
14 A. Yes. Yes, I have.
15 Q. And who?
16 A. I can't tell you his name. It was very peculiar. I had dealings
17 with this gentleman on several occasions, and he steadfastly refused to
18 reveal his name, even when a colleague of mine went up and introduced
19 himself. So I simply don't know his name.
20 Q. Have you ever met anyone from a body known as the SIS centar?
21 A. No, I have not.
22 Q. And you don't know where the SIS centar documents, if they ever
23 existed, were kept, right?
24 A. Well, my understanding is there were multiple SIS centars, but
25 with that qualification, I have no personal knowledge of where they were
2 Q. Uh-huh.
3 A. If we're referring to the same thing. I assume we are.
4 Q. Yes. You simply don't know where those documents were located if
5 they ever existed, do you?
6 A. Well, I'm not sure what you mean by "if they ever existed," but --
7 since I did see them, but beyond that, do I know where they were located?
8 Beyond what I said in my direct examination, no.
9 Q. All right. You have never met with a man by the name of Miso
10 Mijic or Dragan Voloder, I take it.
11 A. No, not to my knowledge.
12 Q. All right. Let's take a quick look at the Viteska Brigade issues,
13 if my colleague will forgive me for pre-empting him for a bit.
14 MR. SAYERS: One document I'd like to have marked as an exhibit is
15 the transmittal memorandum from Orsat Miljenic to the ICTY in May of this
17 JUDGE MAY: Any objection to this document being produced?
18 MR. SCOTT: No, Your Honour.
19 JUDGE MAY: Exhibit number, please.
20 THE REGISTRAR: Document will be numbered D346/1.
21 MR. SAYERS:
22 Q. You've seen this document before, I take it, Mr. Prelec.
23 A. I believe so, yes.
24 Q. All right. And this is dated six months ago, sir. It describes
25 15 categories of documents, and 11 of those categories deal with the
1 Viteska Brigade, correct?
2 A. That appears to be the case. I'll take your word for it.
3 Q. Well, you say that you saw all sorts of binders with "Viteska
4 Brigade" listed on the spines, and you asked for copies of those documents
5 and they were given to you six months ago, weren't they?
6 A. Well, yes, these particular documents, on the order forms,
7 reflected -- this is where it says the PPIZD1 and then numbers, yes.
8 Those documents would have been provided and I believe were provided along
9 with this form in late May.
10 Q. Six months ago.
11 A. Approximately six months ago.
12 Q. All right. Now, one part of your statement I'd like to cover with
13 you is paragraph 11. Let me just read it to you. Do you have your
14 statement with you, sir?
15 A. I do.
16 Q. All right. And it's the second sentence that I'm interested in.
17 You say one document in particular caught your attention, which was a
18 request for information sent by Colonel Tihomir Blaskic to Mario Cerkez on
19 16 of April, 1993, recently marked as Exhibit Z692.2. "The document
20 requested information about the Viteska Brigade's progress in four Central
21 Bosnian villages, including Ahmici and Donja Veceriska."
22 MR. SAYERS: I wonder if I could just ask the usher to put this
23 document on the ELMO. This is Exhibit Z692.2.
24 Q. Now this document doesn't mention Ahmici or Donja Veceriska, does
25 it, Mr. Prelec, anywhere except on the back in handwriting?
1 A. That's correct.
2 Q. So, in fact, Colonel Blaskic was not asking Mr. Cerkez about the
3 Viteska Brigade's progress in four Central Bosnian villages, including
4 Ahmici and Donja Veceriska, was he, sir?
5 A. I could not agree with you. He is asking for a report on the
6 current situation "in your zone of responsibility."
7 Q. Yes.
8 A. Which you have stated in more specific terms, as did I in point 11
9 of my statement.
10 Q. Well, I'm just using the words that you used in your statement,
11 sir, and I don't mean to quibble with you or argue, but the document says,
12 "Zone of responsibility," and it doesn't say "four Central Bosnian
13 villages including Ahmici and Donja Veceriska," does it?
14 JUDGE MAY: Well, I don't think we're helped by this. This is a
15 matter of argument. You can address this to us in due course.
16 MR. SAYERS: Yes, Your Honour.
17 Q. The second point of interest on this document, sir, that you
18 highlighted and said you'd never forget, is in pencil on the back side of
19 this document. There were some notes written, right?
20 A. Yes, that's correct.
21 Q. All right. And when were those notes written?
22 A. How could I possibly know that?
23 Q. Right. And you don't know who wrote them either, do you?
24 A. No. I believe I made that clear in my direct testimony.
25 Q. The second document that you referred to is Exhibit D306/1
1 tab 102, which was an exhibit in the Blaskic case.
2 MR. SAYERS: I wonder if we could have this put on the ELMO,
3 please. The Croatian version, please.
4 Q. And if we could just take a look at the top of the document, the
5 date of it, which has been asserted to be the 15th of April, 1993. Let me
6 just suggest to you, Mr. Prelec, that someone has crudely altered the date
7 of this document in handwriting, and you can see it. It leaps out at
8 you. Wouldn't you agree with that?
9 A. The date has been altered in hand, yes.
10 Q. And that's sort of an example then of a document that bears one
11 state or one asserted species of information that ain't necessarily so;
13 A. I was waiting for the French translation to conclude. The -- if
14 you refer to the "15," yes, correct.
15 JUDGE ROBINSON: Mr. Sayers, is there anything else in the
16 document which you say has been altered apart from the date?
17 MR. SAYERS: I have no reason, Your Honour, to dispute what the --
18 what the witness says and that is that this document actually appears in a
19 different register in a different date. The reason that we included this
20 in our exhibits was not necessarily to attest to the accuracy of the date
21 but merely to show, if this really needed to be shown, the hundreds and
22 hundreds of orders that the commander of the Central Bosnia Operative
23 Zone, Colonel Blaskic, issued, this being one of them. But I have
24 absolutely no reason to dispute the testimony of the witness. And we can
25 see it for ourselves that this date appears to have been deliberately
1 altered by someone or altered.
2 JUDGE ROBINSON: Thank you.
3 MR. SAYERS: Thank you.
4 Q. Let me turn to the final topic about which you testified,
5 Mr. Prelec, the transcripts of conversations that assertedly occurred in
6 the office of the President of the Republic of Croatia over a period of
7 years that have been produced apparently in abundance to your office
8 earlier this year.
9 We know that from your testimony, you said in the LiveNote on page
10 60 today, that you saw a tape that was dated 1991 and that this tape had
11 been kept apparently because it was felt to be historically important.
12 Did I understand you correctly?
13 A. That was my assumption. The precise date on the tape was late
14 March 1991, and it was a recording where it appeared to be -- the date
15 corresponded to the date of a meeting of most or all of the Yugoslav
16 republic presidents. They were having a series of these meetings. It
17 initially caught my eye because it was a tape, and I had been looking for
18 material on the Karadjordjevo meeting.
19 Q. I don't mean to interrupt you, sir, but pressure of time is upon
20 us, and the only question was this tape that you saw was from 1991, yes?
21 A. Yes.
22 Q. And had a transcript been made of this tape that was subsequently
23 provided to you?
24 A. We were provided a transcript of the meeting that I assumed that
25 tape to have recorded.
1 Q. So as early as 1991, the office of the president was making
2 decisions that tapes should actually be retained if they were felt to have
3 an historical importance?
4 A. I can't comment on that. I have no information to -- that would
5 allow me to make such a conclusion.
6 Q. All right. The transcripts that have been provided by the -- or
7 to you by the Prosecution to us, I think that you said you did not, except
8 with one recent concession, have listened to any of the original tapes
10 A. No. I've listened to no recordings.
11 Q. And your understanding -- and your understanding is that the tapes
12 themselves have been reused? Is that what you are given to believe?
13 A. This is what I was told.
14 Q. So there is no way to check the accuracy of the transcripts
15 themselves, is there, by now?
16 A. Well, it's impossible to check them against the tape. It would be
17 possible to examine other or to explore other avenues establishing their
18 accuracy, to explore the process by which the transcripts were made.
19 Q. But there's just no way right now to be sure that these are
20 accurate transcriptions of what the tapes assertedly contained, is there,
22 A. Again, I don't see what you're asking beyond what I've said. One
23 cannot check them against the original since the original does not exist,
24 against the tape, rather.
25 MR. SAYERS: Thank you. No further questions, Mr. President.
1 JUDGE MAY: Mr. Kovacic.
2 Cross-examined by Mr. Kovacic:
3 Q. [Interpretation] Hello, Mr. Prelec. My name is Bozidar Kovacic
4 and together with my colleague, Mr. Mikulicic, I'm a Defence counsel for
5 the accused Mario Cerkez. I will ask my questions in Croatian and so I
6 would please ask you to observe the requisite pause between the question
7 and answer.
8 My colleague already asked some questions that I was going to ask,
9 but I do have further questions. You mentioned in your curriculum vitae
10 that you had an opportunity to work in the archive in Vienna, in
11 Washington, D.C., and in other places. Could you please, in two sentences
12 tell us, I suppose, that the documents that you have examined in the state
13 archive in Zagreb with respect -- as compared to the documents that you
14 have seen previously in your work in Vienna or D.C.? I suppose that these
15 documents differ quite a lot from what you were used to based on your
16 previous experiences.
17 A. I would have to say that the material I reviewed in Zagreb which
18 was some of the most exciting and rewarding material I had the chance to
19 review in my professional career was largely similar to material I had
20 reviewed in other archives except that I knew far more of its origin and
21 could be far more confident in it than is normally the case in historical
22 research. There were differences since the material I looked at in
23 Washington, for example, related to the early 1970s. In Vienna, the 1900s
24 handwritten in German. So -- but it would not strike, it did not strike
25 me as peculiar from an archival point of view.
1 Q. Documents that you were given in Zagreb, the state archive itself,
2 you said that the archive started working on the documents basically at
3 the same time when you started working. And as the time progressed, this
4 was expanded in the sense of creating reference lists; is that correct?
5 A. They had begun slightly before we began and had done some work,
6 but my impression is that most of their work took place, as you say, while
7 we were working there as well.
8 Q. In the archive in Zagreb, when you were given a certain document,
9 certain binder from the archive, any binder, you were, perhaps, the first
10 one or the second or the fifth one to ever see this document. Perhaps
11 some of the Defence counsels had access or somebody from this Tribunal had
12 access to this document, but other than that, there were no other
13 researchers who had access to these documents; isn't that correct? It was
14 only the people from this Tribunal, the Defence counsels and the
15 Prosecutors; is that right?
16 A. I'm not sure I understand the question.
17 THE INTERPRETER: Mr. Kovacic, will you please speak into the
19 MR. KOVACIC: [Interpretation]
20 Q. While you worked in the archives in Zagreb, have you ever seen any
21 other historians, researchers, or other people who had access to this
22 material? Have you, based on -- you told us a lot about the archive, its
23 organisation. Were you able to conclude, based on what you have known,
24 that other researchers prior to you had access to these documents?
25 A. Well, occasionally we would mark the documents with a yellow
1 adhesive paper, and on several occasions, I found pieces like this in a
2 binder that none of my colleagues recognised. I can't say where they come
3 from, possibly the Defence, possibly someone else.
4 Q. But at any rate, bearing in mind everything that you were able to
5 find out about when the documents arrived physically in the archive and
6 when you, as well as other people from this Tribunal started examining
7 these documents, do you believe that there was a significant number of
8 other people who came to archive before you and examined these documents
9 prior to yourself?
10 A. Insofar as your question relates to the archive, the Croatian
11 State Archive, my impression is that no other persons, aside from the OTP
12 and the Defence and members of the government of Croatia had access to
13 that collection.
14 Q. When you would take -- when you would take a specific document in
15 an archive in D.C., would you say that you were among the first 20 people
16 to ever hold that document in your hands, if I can paraphrase my
17 question? Is it likely that any document that you laid your hands on in
18 Vienna or anywhere else was prior to you seen by a great number of other
19 researchers or other people who had access to it?
20 JUDGE MAY: I don't follow the question. What is the point?
21 MR. KOVACIC: [Interpretation] I wanted to lay a foundation to the
22 disarray in the archive, and the witness stated in his first question that
23 he saw no difference between an archive in Zagreb and Washington. I
24 wanted to say that the documents in D.C. had been examined because
25 hundreds of thousands of researchers have seen these documents before
1 that, and there was literature or research paperwork to confirm this
2 whereas in Zagreb, these documents had arrived into archive a week before
3 they had been seen for the first time. So there has been no evaluation of
4 this raw material, and this is one of the points that I am trying to
6 JUDGE MAY: Mr. Prelec, you've heard what counsel has said. Can
7 you assist us by preparing the material you saw in Zagreb with material
8 you've seen elsewhere?
9 A. Yes, Your Honours. Normally, one does not -- historian does not
10 look at archival material that has been looked at by large numbers of
11 other people; one looks for new material. It's the essence of discovery.
12 So I am certain that in some cases, I did, in my professional career, look
13 at material that had been seen by others, but not by very large numbers of
14 others. Had that been the case, I would not have looked at it. Beyond
15 that, the experience was quite similar as a ...
16 JUDGE MAY: I think possibly the point that counsel was seeking
17 was the state of the archive. How did the state of the materials
19 A. They were not outside the norm of archival collections. Some
20 collections are much better organised. In Washington, I worked in
21 presidential papers and those were fairly rigorously maintained, but many
22 of the other materials I had looked at, for example, in Ljubljana, I
23 examined some court papers from the early years of this century that were
24 in a significantly greater state of disarray than the HVO materials.
25 This is why I say it's well within the range of order that a
1 historian or that I as a historian have encountered.
2 MR. KOVACIC: Thank you for helping, Your Honour.
3 Q. [Interpretation] The documents pertaining to Viteska Brigade,
4 would you please confirm for me some issues. I'm not sure that it is all
5 clear. My first question is the following: Is it true that the documents
6 of Viteska Brigade were found in various sets among those binders that you
7 mentioned or were you given all of these documents together at the same
8 place from A to Z?
9 A. They were found in various places, many in the collection of the
10 brigade itself, but several other places as well.
11 Q. They were also among the set that has not been classified; is that
13 A. Well, they were in the boxes that I referred to earlier that had
14 come from the Ministry of Defence and those were simply labelled, "Vitez
15 Operational Zone, Various Units." I didn't consult any completely
16 unclassified material. We were -- it would be pointless. The quantity
17 was too large.
18 Q. This very collection that came from the Ministry of Defence of the
19 Republic of Croatia and which contained various documents of the
20 operational zone, the documents that you referred as being a set of
21 documents pertaining to the middle of April of 1993?
22 A. Yes.
23 Q. Is it correct that among this collection, among this pile, folders
24 that came from the Ministry of Defence, you were able to determine that
25 this came from SIS, the information agency? Did you inquire in which part
1 of the Ministry of Defence these documents were kept, who released them
2 into the archive? Are you stating this was not obvious from any of the
3 material that you saw?
4 A. Nothing that I can recall at this time. It's possible that there
5 are references in the correspondence cited by your colleague Mr. Sayers.
6 I did read that correspondence but fairly quickly and so cannot
7 categorically describe its contents, but I know of no other indication.
8 Q. To be completely sure of this, do you agree that these documents,
9 in fact, came from the Ministry of Defence? This is definite, isn't it
10 correct? This came from the Ministry of Defence of the Republic of
12 A. [Previous translation continues] ... and yes.
13 Q. At my suggestion that these documents came from SIS as one of the
14 agencies within the Ministry of Defence, if I may say so, you are still
15 stating that you know nothing of this?
16 A. No. The person to whom I referred to earlier, assistant minister
17 of defence, with whom I discussed these or not necessarily these, some
18 such documents, was the assistant minister for security, but I do not know
19 enough about the internal organisation of the ministry to be of more
20 assistance to you on this matter.
21 Q. While you were in Zagreb at that time, did you follow what
22 Nacional covered regarding these newly found documents?
23 A. I read some of them, yes, but not all. It was a busy time.
24 Q. I suggest to you, although I personally do not like to use
25 newspapers as a source for the information, especially not in trial
1 proceedings, that at least three times Nacional carried that SIS, as part
2 of the Ministry of Defence, first transferred its documents first to HIS
3 and then to the archives. Do you not recall that this was mentioned?
4 A. I don't recall specifically such an article. It would not
5 surprise me if that had been the case, but even if I could have recalled
6 such an article, I would not have based an answer to your question on it.
7 Q. Let me just pose another question relating to this. During the
8 work of your team in Zagreb, you were able to find out that certain
9 documents -- I'm not now referring to these documents in the folders that
10 we described in detail. However, you did find out that certain documents
11 of the HVO from Bosnia were able to find their way to SIS in Zagreb, is
12 that right?
13 A. Yes, you're correct. There was correspondence between the SIS of
14 Herceg-Bosna and the SIS of Croatia.
15 Q. Thank you. You also mentioned a conversation with Dr. Zunec. Did
16 Dr. Zunec, personally, ever at any time mention when exactly did these HVO
17 documents come into the hands of SIS or his agency? Has he ever
18 personally spoken to you about it?
19 A. I don't think so. I see how he could have known.
20 Q. Why do you think so? Isn't it normal to expect that the director
21 of HIS would know when such a large amount of documents entered his
22 agency? Do you think that a director of such a large agency would not
23 know of that?
24 A. He had not been a director for very long and certainly not at the
25 time they arrived.
1 Q. But it is undisputable that he was the director of the
2 intelligence agency. We agree on that, don't we?
3 JUDGE MAY: I don't think we're being assisted by this
4 Mr. Kovacic. The witness has given the answers to what he knows. The
5 rest must be pure speculation.
6 MR. KOVACIC: [Interpretation]
7 Q. Has anyone else, while you were working in Samobor in May for the
8 first time - so you were working with HIS - did any of the officials of
9 HIS tell you personally when those documents entered their agency?
10 A. I don't recall, no. I recall no such information.
11 Q. Did you ever see a document on -- confirming the receipt of these
13 A. No.
14 Q. So I assume that you don't know when and how these documents
15 reached HIS in Zagreb?
16 A. Well, you've covered several discrete ways I could know, but I do
17 have the information that has been referred to earlier, the anonymous
18 letter cited by Mr. Sayers and the material I saw myself in the archive
19 that allow a partial reconstruction, not a complete reconstruction but
20 within certain limits, how that came to happen.
21 Q. Is it true that you are sure of all this, that the documents were,
22 in fact, in the possession of one of Croatian intelligence agencies known
23 as HIS? Let us not delay this.
24 A. I am sure.
25 Q. Can you exclude the possibility that other intelligence agencies,
1 while the documents were at HIS, could have had an access to these
3 A. No, I could not exclude that.
4 Q. And finally, you do not know when and how these documents were --
5 reached HIS?
6 JUDGE MAY: The witness has dealt with that. Yes.
7 MR. KOVACIC: Your Honours, I'm sorry. I didn't ask for the
8 schedule today in order to try and plan. Should we work after 4.00 or
10 JUDGE MAY: Well, we started quarter to. The hour and a half will
11 be up in five minutes. How much longer do you want, Mr. Kovacic?
12 MR. KOVACIC: Well, I anticipate about perhaps 20 minutes and some
13 documents, and that is taking the time through those 20 minutes. There's
14 the problem.
15 JUDGE MAY: We will adjourn now until tomorrow morning.
16 Mr. Prelec, will you be back tomorrow please to conclude your
18 Mr. Kovacic, we must conclude it within 20 minutes because the
19 witness has been giving evidence for a long time.
20 MR. KOVACIC: I certainly will be finished in that time.
21 JUDGE MAY: Yes, Mr. Naumovski.
22 MR. NAUMOVSKI: [Interpretation] Your Honours, I apologise. We
23 have the names for the two witnesses tomorrow. The only thing we know is
24 that they're coming from the office of the President of Croatia, but we
25 have not received the outline of their statements or anything similar, so
1 I wanted to just bring this to your notice.
2 JUDGE MAY: It may be some time before we hear those witnesses, if
3 we hear them at all, because we're going to move next to deal with the
4 exhibits, but of course the summaries as soon as possible.
5 MR. NICE: Your Honour, yes. We'll do whatever we can. It think
6 the witnesses have arrived today, and I'll do whatever I can as soon as I
8 JUDGE MAY: Thank you. Very well. Tomorrow morning.
9 --- Whereupon the hearing adjourned at 4.12 p.m.,
10 to be reconvened on Tuesday, the 21st day of
11 November, 2000, at 9.30 a.m.