Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27485

1 Thursday, 23 November 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.37 a.m.

5 JUDGE MAY: Yes, Mr. Sayers.

6 MR. SAYERS: Thank you, Mr. President. We have submitted a brief

7 pleading to the Court today to summarise our position regarding late

8 disclosure of these transcripts. I had the opportunity yesterday to go

9 back and research the record and it appears to be the case that the

10 Prosecution's had these transcripts for at least six months and has

11 actually used them in the cross-examination of our witnesses.

12 In addition, we've previously told the Trial Chamber that we had

13 attempted to acquire copies of these transcripts that had already been

14 provided to the Prosecution. We've made requests to the office of the

15 president in June of last year and those requests were declined. We were

16 told instead to try to get these documents from the Prosecution itself.

17 We made a request in August and that was ignored. And so that's the --

18 that's the position with respect to lateness.

19 JUDGE ROBINSON: Are you speaking about all the transcripts when

20 you say the Prosecution had them for at least six months?

21 MR. SAYERS: I can't, in all good conscience represent to the

22 Trial Chamber that the Prosecution's had them all. I don't know which

23 ones we've had and which ones we've not had. But two of the transcripts,

24 actually three of the transcripts that the Prosecution are seeking to have

25 admitted, as we have stated in our papers, clearly form the basis of

Page 27486

1 cross-examination last June and last July of our witnesses DA and DK and

2 that's just inescapable.

3 I do recall an exchange with the -- between the Presiding Judge

4 and the Prosecution when, during the cross-examination of Witness DA, and

5 recited on page three, I think, of our pages, page two, -- yes, page two,

6 where the Prosecution was actually reading from one of these transcripts

7 during the cross-examination of one of our witnesses and the Presiding

8 Judge said, "What are you reading from?" And the Prosecution said, "Well,

9 I can't tell you but I might tell you ex parte."

10 We would suggest to the Court that that revealing exchange speaks

11 volumes with respect to the claim that these are new documents. And that

12 was an exchange that occurred on the record on June 9th, 2000, Your

13 Honours. But turn to go where we left off yesterday which I think was

14 number 8, transcript number 8 on our list, September 15th, 1993.

15 Sorry -- yes, September 15, 1993, this appears to be cumulative and

16 irrelevant and there are all sorts of hearsay and opinions uttered by the

17 declarants not really going to any of the central issues in this case and

18 certainly not going to the central issue of the culpability velle non of

19 Mr. Kordic.

20 With respect to the ninth transcript, October 22nd, 1993, same

21 thing. Same arguments and I won't repeat them Your Honours except to say

22 that I think Rule 89(D) considerations most definitely come into play here

23 at this late stage of the game given the contentions exchanged between the

24 participants in that meeting.

25 With respect to number 10, the November 5th, 1993 transcript of a

Page 27487

1 meeting that occurred at the Vila Dalmacija in Split, we have no record of

2 having that transcript disclosed to us. I believe we cannot determine

3 whether the entire Croatian version has been disclosed to us but which did

4 not receive any English translation at least that was the case as of the

5 date that our pleading was filed, November 15th. And if you'll permit me,

6 I'll just inquire whether we've actually received a copy of the English

7 translation between November 15th and today.

8 [Defence counsel confer]

9 MR. SAYERS: Regrettably, we simply cannot determine from the

10 documents that have been provided to us whether an English translation has

11 been disclosed. I don't recall one, but our records don't disclose the

12 disclosure of one.

13 With respect to number 11, transcript dated November the 6th,

14 1993, this transcript has been disclosed but it doesn't mention Kordic in

15 any way, and we would simply suggest to the Court that it is of extremely

16 peripheral relevance, if at all. It certainly doesn't go to the question

17 of Mr. Kordic's criminal culpability or lack thereof.

18 Exhibit number 12 -- sorry, entry number 12, the transcript dated

19 November the 23rd, 1993. In addition to the objections that are stated in

20 our pleadings, it seems to be almost completely irrelevant to the core

21 issues in this case as the Court has previously articulated the test to

22 be. And the same is true of the November the 28th, 1993 transcript, entry

23 number 13 on our summary.

24 Going over to entry number 22 on our summary, the February 13th,

25 1994 transcript. We have only had small excerpts of this translation

Page 27488

1 produced -- English translation produced to us. As I said yesterday, I

2 have not had the time to go over this full document with my

3 Croatian-speaking colleagues, but it does appear to be of extremely

4 dubious relevance based upon the representations made on pages 19 and

5 20 of Exhibit Z2833. And also -- actually, this is the transcript that

6 was used during the cross-examination of Witness DA back in June of this

7 year, June the 6th, I think. So this one, clearly, is not new.

8 Item number 23 on our summary is March the 22nd, 1994. We don't

9 have a copy of this transcript in Croatian or in English. So I'm not in a

10 position to address whether it's in any way relevant to the case.

11 And finally - I think it's finally - entry number 25, June the

12 11th, 1994. It's difficult for me to conceive what possible relevance

13 this transcript has. It's beyond the period covered by the amended

14 indictment. It doesn't relate in any way whatsoever to criminal

15 culpability or the core issues in the case. And we've only received a

16 partial translation in English of this document, so I don't know what the

17 entire document deals with. But according to the summary, we would

18 suggest to the Court that you can read the summary and exclude it on the

19 basis of that. It's just tangential, cumulative, and it doesn't go to the

20 central issues in this case.

21 Let me just conclude the argument with this observation,

22 Mr. President: The Court's previously told the Prosecution on several

23 occasions that it really should adopt a robust attitude towards this

24 Prosecution. This isn't simply an exercise of dumping every conceivable

25 piece of paper that deals with a subject or mentions a subject into the

Page 27489

1 record. It has got to have some relevance, especially at this stage to

2 the game, to the central issues in the case.

3 And I end where I started out. It appears that we seem to have

4 lost the view of the wood for the trees, and we really need to get down to

5 brass tacks here with documents that really relate to the central issues

6 rather than cluttering the record with a vast array of peripheral and

7 irrelevant material which is completely cumulative to the points that have

8 already been made over and over again. Thank you.

9 JUDGE MAY: I'll hand something to the legal officer, please.

10 Yes, Mr. Mikulicic.

11 MR. MIKULICIC: [Interpretation] Thank you, Your Honours. First,

12 on behalf of the Defence of Mr. Cerkez, I entirely agree with my colleague

13 Mr. Sayers as far as the analysis of the content of this transcript is

14 concerned for which the Prosecution wants to introduce as evidence.

15 I think that the key issue is what my colleague Mr. Sayers said,

16 which is that we think that we have lost the wood -- the view of the wood

17 for the trees. We are now discussing the content of these transcripts and

18 trying to evaluate their relevance without having done previously

19 something that I consider to be a precondition to discuss the content of

20 these transcripts, and the precondition is to establish the authenticity

21 of these transcripts. These are the documents which the Prosecution

22 requests to be admitted into the evidence and thus the burden of proving

23 authenticity of these documents rests with the Prosecution.

24 What have they offered us? The Prosecution brought in two

25 witnesses - one of them was an audio recorder and the other one was a

Page 27490

1 typist - in order to prove that during the relevant time, in Tudjman's

2 office there were meetings held which were recorded and, thereafter,

3 transcribed into the form of a transcript. Nobody disputes this fact.

4 What we do contest, however, is whether the documents that have

5 been offered to us, whether they are authentic and whether they really

6 represent the conversations that took place in Tudjman's office, and the

7 Prosecution has not offered any evidence to support this. There are no

8 tapes that could help us verify the authenticity, to compare the

9 transcript with the audio record. There are no videotapes that could

10 serve to establish this very fact as well. There are no computer records,

11 computer disk records. And finally, there is no testimony of those who

12 were present at the meetings and who could verify the authenticity of

13 these documents as to the contents.

14 So our conclusion is that the authenticity of these transcripts

15 has not been proven, and we further claim that they are not authentic.

16 Now, this whole conversation reminds me of a situation in which

17 somebody finds a hundred dollar bill on the street and then thinks about

18 other things that could be bought with a hundred dollars and makes all

19 kinds of plans, at the same time disregarding the fact that the hundred

20 dollar bill is a forgery and cannot be used to purchase anything.

21 So what we claim is the following: That these transcripts are

22 simply pieces of paper with certain text on them, and the credibility,

23 authenticity of these documents has not been proven by the Prosecution.

24 As one of the arguments of the doubtful authenticity of these

25 documents is further substantiated by the fact that after there were

Page 27491

1 various write-ups in Croatian media, there was a proceeding initiated in

2 Croatian parliament, there was a committee that was designed to verify the

3 privatisation process of a large company, and these transcripts were

4 offered as evidence in those proceedings. But for the very reasons that I

5 have mentioned, the parliamentary committee refused to use these

6 transcripts as valid evidence, especially since some of the participants

7 of those meetings disputed the contents of these transcripts as they were

8 shown.

9 JUDGE MAY: Mr. Mikulicic, the fact that some other body refuses

10 to accept the documents as authentic is not relevant to our proceedings.

11 We have to deal here with the evidence in front of us, and apart from

12 assertions by the Defence, there's no evidence or no material on which you

13 can rely to suggest that they aren't authentic or perhaps you would point

14 to it.

15 MR. MIKULICIC: [Interpretation] Your Honours, I appreciate your

16 comment, and with all due respect, I want to say that I did not bring out

17 this example by the Croatian parliamentary committee as a precedent

18 because this would be disrespectful to this Tribunal. However, I do wish

19 to underline that it is not up to the Defence to prove that this

20 transcript is not authentic or credible but is up to the Prosecution to

21 prove that they are. So the Defence is claiming that they are not

22 credible and to further this, we have offered further evidence. On the

23 other hand, Prosecution is claiming that they are credible; however, they

24 have not offered any evidence to support this and this is what we want to

25 bring to your attention.

Page 27492

1 I do not wish to trouble you any further, but I would like to

2 state in my conclusion that these transcripts cannot pass your standards

3 for admitting the documents because these transcripts are such that the

4 Rule 89(D) needs to be applied to them since their probative value is

5 questionable, at least to me. And on the other hand, their admission

6 would cause significant detriment to the accused and this is why we think

7 that Rule 89(D) needs to be applied in this case and these transcripts

8 need to be excluded. Thank you.

9 JUDGE MAY: Thank you.

10 Ms. Somers, as far as I am concerned, you need concentrate on

11 these matters only, and those are the disclosure matters. The suggestion,

12 first of all, that the material was not disclosed until -- at least some

13 of it was not disclosed until after the 30th of October. The second point

14 which is made is that the Prosecution have had the transcripts for six

15 months and not disclosed them. And thirdly, the point that many of the

16 pages are missing in the sense that selections have been made and the

17 whole transcripts have not been disclosed. If you'd like to address us on

18 those matters, you can. As far as the other matters are concerned, they

19 have been fully addressed already.

20 MS. SOMERS: Thank you, Your Honour.

21 JUDGE MAY: I'm sorry, the other point is that they have been

22 handed over in mainly B/C/S, as I understand it, and not in English.

23 MS. SOMERS: Yes, Your Honours. If I may request the Court's

24 indulgence, I will address the points that the Court has asked for. I may

25 ask for supplemental information from Mr. Scott simply because we've had a

Page 27493

1 division of labour. I believe for just a few moments it may be necessary

2 to ask for private session because there are will be some references made

3 that will be --

4 JUDGE MAY: Yes.

5 MS. SOMERS: Thank you.

6 [Private session]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 27494

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [Open session]

13 MS. SOMERS: Your Honours, the -- referring to the point made by

14 the Defence that on the documents that were turned over on the 13th of

15 November which physically came in after the October 30th deadline, the

16 Office of the Prosecutor only received those documents on the 13th of

17 November. As I had indicated, Mr. Scott may best be able to tell you the

18 difficulties in obtaining them, and that may end up with a quick return to

19 closed session. However, as soon as we got them that very day, they were

20 turned over in the B/C/S format, immediate translation was requested,

21 and -- if they've been provided, then as soon as we get the translations

22 they are immediately turned over. There is no delay on our part.

23 However, the content of these documents, as I understand, was, in fact,

24 made available to the Defence, so there is no prejudice. And this is how

25 the process has worked consistently.

Page 27495

1 As the Court probably understands, we are very much at the mercy

2 of many factors that are well outside our control. Some are somewhat

3 diplomatic and some are simply of persistence, bureaucratic. However, the

4 requests were made upon identification and with repeated insistence on

5 turning over, and ultimately they came, albeit not within the time frame

6 that we had certainly hoped for.

7 If there are no other issues other than the points there, if there

8 is anything specific about the disclosure aspect that I may ask my

9 colleague Mr. Scott to address, I would be grateful for the Court to let

10 me know.

11 JUDGE MAY: No. We'll accept what you say, Ms. Somers. There is

12 nothing more to be added.

13 MS. SOMERS: Thank you, Your Honour.

14 JUDGE MAY: The other point is the question of selection of

15 material and not all transcript being handed over.

16 MS. SOMERS: Yes, of course. In terms of -- the entirety of the

17 translation, is this what the Court is referring to?

18 JUDGE MAY: This is the submission that has been made by

19 Mr. Sayers.

20 MS. SOMERS: This is this morning's. I --

21 JUDGE MAY: No. It was made yesterday --

22 MS. SOMERS: I'm sorry. Okay.

23 JUDGE MAY: -- according to my note. What he says is - let me

24 just summarise what I have noted - that there are thousands of pages in

25 the original. The Prosecution have selected parts of the transcript and

Page 27496

1 the Defence have not had all the original in English. This is what I

2 understand the submission to be.

3 MS. SOMERS: In terms of the translation of selected parts, that

4 was a decision that was made based on the limitation of resources within

5 the translation services. It is true that there are indeed thousands of

6 pages. The B/C/S originals have at all times -- I should say that they've

7 been turned over. We had to make a reasonable selection of those points

8 which go to either core arguments or form the basis for which we are

9 seeking the admission.

10 The process was not unique I think to this exercise. I believe

11 earlier on in some -- early in this proceeding, with other witnesses, we

12 had discussed with the Chamber and with counsels opposite the need for

13 partial translation of relevant materials where it went on and on. We

14 found under the circumstances, Your Honours, this was the only realistic

15 way to do this.

16 Indeed, if there are other portions of the transcript -- in other

17 words, the entire B/C/S transcript certainly is available. If there are

18 portions that are raised into question and that are specifically brought

19 to our attention, we can, within the confines of whatever interpreter

20 services or translation services can do, attempt to embellish, but it is,

21 honestly, unrealistic given the literally thousands of pages.

22 Sadly, this is beyond our ability. We thought this was the most

23 reasonable approach. If the Court has some guidance for us or if the

24 Court has some concern, I would very much appreciate being able to relay

25 this to Mr. Nice.

Page 27497

1 [Trial Chamber confers]

2 JUDGE MAY: Thank you for those explanations.

3 MS. SOMERS: Certainly.

4 JUDGE MAY: I don't think there's anything which we need to ask

5 you about, Ms. Somers.

6 MS. SOMERS: May I address the Court one second?

7 JUDGE MAY: Yes.

8 MS. SOMERS: Yesterday, and Mr. Tomljanovich has pointed out that

9 there was a translation or there was a document that I believe we had

10 indicated should have gone from the original document that the Court was

11 looking at, and I think it probably bears a date on the very first one of

12 22nd of March. It is the ERN, which is the most critical of identifying

13 marks, is -- are on the B/C/S it was R0157586 through 7651 and on the

14 excerpted pages it is R0157605 through 7614.

15 It is my belief that we may have had at all times incorrectly the

16 date. It may be March 14th in the original B/C/S. It appears on the --

17 it appears as number 23 on the most current edition of this table. I'm

18 sorry, on the earlier decision. And on the most current one it appears as

19 number 22 and it is marked as Z1394.1.

20 I just wanted to bring to the Court's attention and counsel

21 opposite's attention that may be that we have simply mistranscribed the

22 date on the original document, but it is before Your Honours for

23 consideration as part of the admission. Thank you very much.

24 JUDGE MAY: Thank you. We'll go on next to the Cerkez documents.

25 While that's being done, Ms. Somers, can I raise something with

Page 27498

1 the Prosecution. I still do not have from the Kordic documents the

2 original of 1356.4. Now, it may well be that it's been handed in and may

3 well be that it's somewhere in transmission, but I would like a copy of it

4 by the break, please.

5 MS. SOMERS: Yes, Your Honour.

6 JUDGE MAY: Who is going to deal with the Cerkez documents?

7 MS. SOMERS: It will be Mr. Lopez-Terres, and it may be

8 beneficial --

9 THE INTERPRETER: Microphone for the Prosecution, please.

10 JUDGE MAY: Mr. Lopez-Terres, you've, hopefully, sent in a list of

11 documents that you particularly rely on, 28. We've got in front of us a

12 nine-page schedule. I think probably from the two we can see what it is

13 that you particularly want us to consider.

14 Now that we have it in front of us, is there anything about any of

15 these documents or about the documents generally about which you would

16 like to address us?

17 MR. LOPEZ-TERRES: [Interpretation] As you have said,

18 Mr. President, we have gone through the list again. In that list you had

19 more than 100 documents, 111 documents, to be precise, and we have

20 reviewed this list very carefully using the criteria defined by the

21 Chamber two days ago, and we would now have come up with a new list that

22 counts 28 documents in total. Out of these 28 documents, you will note

23 that item number 5, number Z660.2, this is a document that had also been

24 listed in the list of miscellaneous documents, a list that we will talk

25 about later on, I suppose.

Page 27499

1 The comments, the observations about the document on the original

2 schedule of 111 documents, well, these summaries, we stick to them. We

3 believe that the 28 documents that make up the final list that we would

4 wish you to admit in the evidence about the accused Cerkez or the brigade

5 he was commanding, we believe that these documents are necessary to

6 understand the case. They bring a new light to the case. They are not

7 cumulative. And these documents made it possible to understand what was

8 the framework in which Cerkez had a role to play as regards to certain

9 facts. It gives some information about the structure of the brigade he

10 was commanding. It was not the brigade that has absolutely nothing, the

11 brigade made up of peasants, without any equipment, as has been said many

12 times. So these documents shed new light and therefore we believe that we

13 were perfectly justified that we are submitting these 28 documents for

14 them to be admitted.

15 JUDGE MAY: Help us with the principle on which you were working.

16 I know you were trying to follow our guidance but when you applied it to

17 these documents, why did you particularly select these?

18 MR. LOPEZ-TERRES: [Interpretation] When we identified these

19 specific documents we took account of several criteria. First, the

20 fact -- the functions of the accused Cerkez in the municipality of Vitez

21 and in the municipality of Novi Travnik where he was the deputy commander

22 of the Stjepan Tomasevic Brigade. He was also the acting commander of

23 that brigade in January and in February after the departure of the actual

24 commander, Borivoje Malbasic.

25 We have also selected documents that give additional information

Page 27500

1 about the organisation of the Vitez Brigade, an organisation that was much

2 more sophisticated than has been told to us by the Defence. This Brigade

3 had an actual structure, had a commanding structure, had professional

4 units. We have figures here about the brigade. I am referring you to

5 569.1. We see that right from the 22nd of March, you have 240 soldiers of

6 the brigade that have been deployed. We have info here about where they

7 have been deployed and as you can see, and contrary to what the Defence

8 told us, this Brigade was not deployed mainly on the Serbian front. Only

9 60 soldiers have been sent to the Serbian front. You will also see in

10 this document that 30 soldiers of this brigade are deployed in Busovaca.

11 The Defence has always told us that Mr. Cerkez or his brigade had never

12 had anything to do with Busovaca.

13 Mr. Cerkez is charged in the indictment for facts that took place

14 in the municipality of Busovaca as well. So this is the logic we have

15 adopted for selecting this document, the direct participation of the

16 accused in the establishment of a number of reports especially reports

17 drawn up on the 16th of April, 1993, where it gives information about the

18 progression of his forces in the various municipalities covered by the

19 indictment. We spoke about Ahmici, Gacice, Donja Veceriska. These

20 documents were either drawn up by the accused himself or representatives

21 of his brigade, his officers were drawing up operational reports, combat

22 reports, all these documents are very telling about the involvement of the

23 brigade.

24 We have also selected a number of documents that demonstrate that

25 this was an offensive operation, an attack on the part of Vitez Brigade

Page 27501

1 that was launched on the 16th of April. We have here documents of the --

2 of Colonel Blaskic where he asked for positions to be maintained on lines

3 that -- on front lines that have been won over. So here, we have nothing

4 to do with defence operations.

5 JUDGE MAY: Just a moment. Let me interrupt you. It may be

6 helpful if you would point us to those documents you've referred to about

7 the 16th of April.

8 MR. LOPEZ-TERRES: [Interpretation] There are many reports dated

9 the 16th of April that we have selected. We have selected them because

10 they show that the brigade was involved and it shows its area of

11 responsibility, and we have chosen these reports because some of them

12 indicate the hour, the time of day when they were submitted because it's

13 not always the case for other documents.

14 And since a number of reports have been submitted on that

15 particular day and it's a sequence, a chronological sequence of reports,

16 we thought that it was important to have some idea about the time of day

17 when the reports were produced. So it's important for some reports while

18 you don't have the time of day, it's important to refer to the previous

19 report and the next report to have some idea where a particular report is

20 situated in the sequence.

21 As for the reports for the 16th of April, I would refer you 663.4

22 in paragraph 2, it is stated that, "The command of Vitez Brigade has

23 become an objective of the counter attack of the Bosnian forces." This is

24 significant --

25 JUDGE ROBINSON: Mr. Lopez-Terres, is it 663 or 673.4?

Page 27502

1 MR. LOPEZ-TERRES: [Interpretation] 673.4, paragraph 2. In

2 paragraph 2, the responsible officer of the Vitez Brigade admits that the

3 command of the brigade has become a target. And that's very interesting

4 because at the same time, Muslim civilians are detained in the HQ. So

5 it's very interesting that these people are used as human shields to

6 protect the command of the brigade and the use of human shields is part

7 and parcel of the indictment, and we believe this document is an admission

8 by the brigade of the use made of detainees as human shields.

9 Another document of the 16th of April, 673.6, document Z673.6. In

10 paragraph 4 of that document, Mr. Cerkez signs the document, is the

11 signatory of the document, says that, "It can be concluded that the

12 development of military operations has not gone according to plan." So

13 here, they make specific reference to a plan and we believe that this is

14 important and needs to be underlined.

15 Following document Z673.7, report dated 16th of April, 10.00 in

16 the morning. This report is very interesting because it is the

17 confirmation by the accused, by Mario Cerkez. It's the confirmation that

18 handwriting mentions notes that the Defence has mentioned very often, for

19 example, the one we found on 692.2 where we are told that this is not

20 authentic. Well, these type of handwritten notes are confirmed by the

21 accused in this particular report where it uses information that -- where

22 it had been handwritten on the back of the report requested by Colonel

23 Blaskic.

24 So as I said earlier, here we have nothing to do with defensive

25 operation. We are told that the forces are moved towards Vrhovine and

Page 27503

1 other places. We have been informed that a truce is being offered. And

2 these are words that you can find almost word for word on Exhibit 692.2.

3 And here the accused confirms the state of the military operations.

4 I said earlier on that Colonel Blaskic uses a very offensive

5 rhetoric language. It's very clear in Z673.9 document, 16th of April, in

6 the morning. We are told that they need to fortify the positions,

7 paragraph 5, maintain the combat readiness of the forces on the lines that

8 have been won over. This is not a defensive type of rhetoric. This is

9 part -- it's not the type of situation as described by the Defence.

10 We also have from Colonel Blaskic another document dated 17th of

11 April at 4.00 in the morning, Z693.1. In paragraph 7, Colonel Blaskic

12 uses again the instructions given on the 16th of April in the morning,

13 i.e., take over Donja Veceriska, take the fire station, Kruscica, set up

14 blockades, et cetera. So we have exactly the same type of wording as in

15 the order of the previous day. And in paragraph 8, once again, it is

16 stated, "We have fulfilled 80 per cent of our objectives to date." So

17 it's not the language used by somebody who is on the defensive faced with

18 a major offensive from the other side, from the Bosnian army. So these

19 were only a few indications that I wanted to give you, that I wanted to

20 give the Chamber about the 16th of April.

21 About another day, the 19th of April, Z726.3, Z726.3 seems to be

22 particularly important especially in the last part, second page in the

23 English version. A document dated 19th of April, it comes from the Vitez

24 Brigade and it -- the 19th of April was the day of the bombing of Zenica

25 that is disputed by the HVO. Here we can read, "If attacks intensify from

Page 27504

1 Zenica, we propose the attack of the artillery, both from light and heavy

2 artillery." On that day, the 19th of April, the state of mind of the HVO

3 is very telling because that's the day when Zenica was shelled.

4 We believe that this document is very important. We believe it is

5 essential to establish the link between what happened on the 18th of April

6 in Zenica around 1.00 p.m. or noon when the town was shelled, and the

7 indirect admission by the operational officer of the Vitez Brigade of the

8 state of mind of them on that day, the use of artillery to prevent the

9 counter-offensive from Zenica.

10 On 20th of April, same thing, 664.1 [sic], an officer of the Vitez

11 Brigade, 1.30, once again, and using the same formula you heard about

12 other villages, here we are at Gacice, again the municipality of Vitez.

13 And the village of Gacice was done 70 per cent, and towards the end of the

14 day it will probably be under the control. And you also have similar

15 reports about other villages falling within the area of responsibility of

16 the Vitez Brigade.

17 So these are some of the illustrations covering particularly that

18 period of time between the 16th and the 20th of April.

19 JUDGE MAY: Just a moment. What was the number, Mr. Lopez-Terres,

20 of the last one which -- last exhibit which you've said referred to

21 Gacice?

22 MR. LOPEZ-TERRES: [Interpretation] Gacice, it is Z764.1 yes, this

23 is a mistake it says "647." It is 764.1.

24 During that period of time, which was the most active period in

25 the Vitez area, it is also curious -- it is also interesting to record the

Page 27505

1 order of Mario Cerkez on the 22nd of April. The brigade commander bids

2 the -- there is the order concerning Z68 -- 781.1 and which is the order

3 which forbids his subordinates to wear black shirts. And this is because

4 they're trying to attribute the responsibility for the crimes which

5 occurred in Vitez to the units which were wearing black uniforms, and

6 these units apparently were not under the command of Mr. Cerkez.

7 On the 22nd of April, Mr. Cerkez, while the fighting goes on, he

8 forbids the men to wear black uniforms in order to indicate that there

9 were only special units that wore those uniforms and in order to show that

10 the -- trying to show that the brigade was not implicated, because there

11 were several witnesses who spoke about men wearing black uniforms.

12 Other categories of documents, Mr. President, Honourable Judges,

13 we thought that it was important to show, by way of different examples,

14 that the units of the Vitez Brigade worked in close cooperation and full

15 coordination with special purpose units which were described as the units

16 implicated in the crimes, specifically the regional police, the Vitezovi

17 forces. These units, and it repeatedly turns out, worked under the

18 control, under the authority of the accused Cerkez or his subordinates.

19 An example, Mr. Cerkez, on the 26th of April, 1993, which is

20 Z824.1, shows that Mr. Anto Bertovic, whom you saw here, who was one of

21 the battalion commanders on the 26th of April, shows that there were units

22 of the regional police and HOS which were at Krcevine and which were under

23 the authority of the battalion commander of the Vitez Brigade, the

24 subordination of authority in the area of responsibility of the brigade of

25 the accused Cerkez.

Page 27506

1 We also have other examples of the same kind and which are among

2 the documents which we selected. There is Z1188.1, 1188.1, where it is

3 intimated on behalf of Mr. Cerkez and his command that the units of the

4 3rd Battalion of the regional police are requesting from -- are requesting

5 from the brigade -- requested by the brigade and the civilian police are

6 attached to the battalion as a reinforcement. These units, therefore,

7 worked again under the authority of the accused Cerkez. And this is an

8 even more telling proof in the report of the fighting on Z1196.2, 1196.2,

9 which is the report on the fighting, which is again a report made by one

10 of the subordinates on behalf of the accused Cerkez and which says, "We

11 wish to use the forces of several battalions with the assistance of some

12 members of the Vitezovi force for -- and the military police and also some

13 of the forces from Nova Bila." There were the already notorious forces in

14 Nova Bila that were already mentioned, and those were the units under

15 ill-famed Mr. Zuti. And Mr. Cerkez, as the commander of the brigade,

16 therefore, had under his command in some of the operations which are

17 mentioned in this document units which were from outside the brigade

18 itself but were under his command.

19 Another category of documents which we also selected concerns

20 disciplinary matters, that is, how the brigade commander, the Vitez

21 Brigade commander, how did he address disciplinary problems. And we have

22 some documents to show that discipline was not really a concern in the

23 brigade. There are some documents which show lack of organisation in --

24 and it happened several times during the period under consideration.

25 These documents, to our mind, attest to the scarce concern of discipline

Page 27507

1 in the brigade.

2 You have already heard the testimonies which you heard, and the

3 Defence tried to show that disciplinary measures were applied regularly

4 against soldiers, but they do not seem that they were systematic in the

5 Vitez Brigade. Quite the reverse; there seems to have existed a certain

6 extent of disorder.

7 The last documents, if I may and then I will conclude with what

8 concerns the accused Cerkez -- I did not go through all the documents. Of

9 course, once again I wish to repeat that we believe that all the documents

10 that we selected following this latest analysis should be admitted by the

11 Chamber, but I shall now mention two categories of documents which do go

12 beyond the time frame concerning the accused Cerkez. Nevertheless, we

13 believe they offer explanations and clarification of the whole case. That

14 is a report which comes from SIS, this famous intelligence and security

15 organisation. This is a report which is Z1316.8 [sic], 136.8 [sic] and

16 this is the report of the 23rd of November, 1993.

17 This report is about the situation in the different units in

18 Central Bosnia. I should like to specify that in the original document,

19 as you will see, has the letterhead of the HVO, that is, that SIS was a

20 unit which operated within the HVO. It was not an autonomous unit, a unit

21 which was outside the HVO. It made an integral part of the HVO, and that

22 explains the letterhead in documents Z1315.8 and shows that the armed

23 forces of the -- of Herceg-Bosna. It shows that there was a unit for

24 intelligence and security.

25 This report is interesting because in its final part, it makes a

Page 27508

1 special reference and indicates a special relationship which existed

2 between the accused Mr. Cerkez; Mr. Darko Kraljevic commander of Vitezovi;

3 and Mr. Zeljko Andric, who is better known as Zuti and who also commanded

4 a special purpose unit. And it notes that between the 18th and 23rd of

5 October, Mr. Cerkez regularly visited Zuti or, rather, Mr. Andric, who had

6 been wounded and who was recovering in Croatia in the house of Darko

7 Kraljevic.

8 So they were very close relations between the commanders of

9 units. There are photographs and, therefore, it is easy to refute the

10 allegation of the Defence according to which the accused had nothing to do

11 with Mr. Kraljevic or with Zuti.

12 And one can see that behind Mr. Cerkez there are other local

13 public figures who are visiting Zuti. They were all visiting one

14 another. They were on close terms. And there is Mr. Anto Valenta who

15 visits him; Mr. Marijan Skopljak who also visits him, that is, head of the

16 defence office in Vitez; Mr. Vlado Cosic, who is the assistant in the

17 regional police.

18 And the last document, the last document to which I want to draw

19 your attention which is also beyond the time frame covered by the

20 indictment insofar as the accused Cerkez is concerned but which reveals or

21 confirms, if it is necessary to him once again, the link which existed

22 between military and political authorities in Vitez, and this is

23 Z1333.6 [sic], 1335.5, and which is a report of the second session which

24 the HDZ party held in Vitez and which invited Mr. Cerkez, the brigade

25 commander, to attend, who then explained to the party the military

Page 27509

1 situation in the Lasva Valley, the situation of his brigade, and who also

2 explains the how the relations between the military authorities and the

3 political authorities or, rather, the municipal authority of the HDZ in

4 Vitez, how these relations were always very close and friendly.

5 JUDGE MAY: Thank you. Mr. Kovacic, are you dealing with these

6 documents?

7 MR. KOVACIC: Yes, Your Honour, I will. [Interpretation] To begin

8 with, just for the record, I do not accept the interpretations of

9 documents as read by my learned friend. It seems to me that some of the

10 interpretations, it seems that we've been watching some other film so

11 far. And it seems to me, that is rather absurd when after all this

12 evidence now at this point in the case, the Prosecution claims that Zuti,

13 Vitezovi, and everybody was under Cerkez's command. I think it is an

14 absurd claim. However, I prepared my evidence on the basis of --

15 JUDGE MAY: I don't think that claim is being made or if it is,

16 then I have misunderstood it. I think the claim which is being made is

17 there was a close connection between Zuti and your client.

18 MR. KOVACIC: [Interpretation] It appears to me that it was at

19 least twice mentioned that they were under the command, perhaps not Zuti

20 but the regional ones and the Vitezovi. But I thought that our task today

21 was, at least that is how I understood it, and I apologise, not to deliver

22 our closing arguments or interpret conclusions that somebody might draw

23 from these documents, but try to see the first place if -- whether the

24 documents fit into the criteria that were laid down by you. Yes, perhaps

25 one needs to add a word or two here and there for illustration and that is

Page 27510

1 in this period that I should go through the document.

2 The first document which was shown is 365.2. Now, my objections

3 are as follows: To begin with, he was not on the index of the

4 Prosecution's material of the 30th of October by which time they had to

5 disclose these documents and these documents were disclosed only on the

6 18th of November which was after the deadline.

7 Secondly, the document bears no archival stamp on his origin, and

8 I wish to remind you that Witness Prelec said here before this Chamber

9 that such documents without stamp mostly come from Samobor. And that is

10 that if this document is a Zagreb document at all, then it must have

11 arrived as early as May. So the Prosecutor could have disclosed it

12 earlier. That is not a new material as you established in the first

13 paragraph of your test.

14 The document itself is repetitive and it shows that at some point,

15 Cerkez figures as Malbasic's deputy when Malbasic is away, that he is not

16 in the command and he, therefore, designates his deputy. But the Defence

17 has already tendered a number of documents which it clearly indicated was

18 never questionable all the positions of Cerkez for the whole period of the

19 indictment. And we said it here, we saw documents and we heard live

20 testimony. So if the Court believes that it is a genuine document, I will

21 not object to it, but I think that it falls short of all the criteria

22 which were set down.

23 The next document is 490.1. We, again, think that it is

24 repetitive on the basis of the same reasoning regarding Cerkez's

25 positions. The Defence recognise all his positions even during the

Page 27511

1 pre-trial brief and there is -- so that this document just unnecessarily

2 encumbers the volume of all the evidence, and it is true that Cerkez does

3 have this particular position which is here inferred and used to make all

4 sorts of interpretations.

5 Document 544.4. It, again, was not on the Prosecutor's index of

6 the 30th of October. It was disclosed with a list of the 18th of

7 November. It does not bear the archival stamp, and according to Witness

8 Prelec, we can assume that it was obtained as early as May, according to

9 an exhibit, I believe it was 321, it is repetitive. And again, because it

10 refers to Cerkez's position, and we've heard quite a great deal about it.

11 And as for the format of the document, it does not have the brigade stamp

12 and we really do not know if it is a genuine document or not.

13 The next document, 569.1, once again, was not on the Prosecution's

14 index of the 30th of October. It was only disclosed on the 18th of

15 November, does not have the archival stamp, that is why I believe this is

16 not a document, and that they had it in May. It is largely repetitive.

17 There is no new information in it or at least not any information which

18 would be of relevance for the indictment, does not have the brigade

19 stamp. Besides, it is cumulative and not particularly relevant. That is

20 99 per cent of the information in it can be gleaned from other documents

21 and what, perhaps, cannot be gleaned are not relevant for the indictment.

22 The next document is 660.2. Again, a document without the

23 archival stamp. That is why we do not think it is new. It is largely

24 repetitive. For instance, there are already a large number of exhibits to

25 show that on the 15th of April, the HVO ordered a higher degree of

Page 27512

1 preparedness in view of the proceeding events and about which there is a

2 lot of evidence that is the abduction of officers of the Stjepan Tomasevic

3 Brigade and Totic's, Zivko Totic's abduction. And we already saw

4 documents in this regard warning of security. Now, all of a sudden, we

5 have adduced the document of Sliskovic who is the security commander at

6 that time and who is sending around a circular to raise the degree of

7 alertness. I have nothing against those documents but it does not meet

8 the criteria laid down because it is ...

9 THE INTERPRETER: The microphone of the counsel is switched off.

10 MR. KOVACIC: [Interpretation] The third document is 673.4. And if

11 we agree that it was found -- even if we agree that it was found in Zagreb

12 because it has the archival stamp, it is not a new document, obviously.

13 And my colleague spoke -- referred to it at great length. He believes

14 it's an important document. I don't see why. However, the document was

15 introduced in Blaskic case, D273 and, therefore, the Prosecution must have

16 had it if they worked with due diligence, even during the Blaskic case,

17 and we could get it yet at the time of disclosure and this is a very

18 serious -- very grave violation of the disclosure rule. I think the

19 admission of this document should be denied because it is quite obvious

20 that it should have been adduced then.

21 The next document is 673.7. Once again, a questionable document

22 as to its authenticity. It does not have the brigade stamp, the signature

23 at the bottom which should be Cerkez's is quite different when a layman

24 looks at it from his other signature. And if one looks at the format at

25 least to the typewriter which is used, it looks different.

Page 27513

1 It is one of the documents that we learned was in the possession

2 of three intelligence services for at least six years and that is what

3 makes it questionable. And in this sense, I do not think it fits into the

4 criteria under Rule 89(D) because there were several Defence witnesses at

5 the time when the Prosecution had this document. Perhaps the last

6 witnesses who were here whom we could have asked about this document whom

7 were perhaps aware of it, but we missed that chance and I think it would

8 be highly prejudicial to the accused and in the case of that document, we

9 really believe that Rule 89(D) ought to be applied.

10 The next document is 673.9. It was also disclosed to the Defence

11 on the 18th of November, that is after the deadline. The shortcomings are

12 that it does not have a stamp, and it is a Blaskic document. And if I

13 remember well, we did not see except for two or three of the huge number

14 of Blaskic documents, we hardly saw any orders coming from his office

15 which were not stamped. I think this is the second offered document of

16 that kind, very, very limited number.

17 Next document is 693.1. 693.1. This document also was not listed

18 on the Prosecutor's index of October 30th, 2000. It lacks the stamp of

19 the Zagreb archive which means that it was either found in Samobor or its

20 origin is unknown. If it was found in Samobor, it means it is not a new

21 document and, in addition to that, there is a great probability that it

22 was introduced as Defence evidence in Blaskic which, unfortunately, we

23 cannot verify because, as you know, we do not have an access to documents

24 under seal.

25 JUDGE MAY: Pause there. The evidence should not be misstated.

Page 27514

1 Mr. Prelec's evidence was that, of course, the Samobor documents did not

2 have the archival stamp. Now, the fact that documents were disclosed at

3 Samobor does not mean they can't be part of the documents which are

4 disclosed today. The witness also said that not all documents from the

5 archive had the archival stamp. Some were copied in the office and didn't

6 have a stamp. So the evidence should not be misstated. Yes.

7 MR. KOVACIC: [Interpretation] Yes, naturally. But it does open

8 new possibilities. What I'm trying to say is that there is a chance that

9 these documents were in Samobor and we were confirmed this by Prelec at

10 least as far as the Vitez Brigade documents, that most of them were in

11 Samobor. Then we do know for a fact that Prosecution has these documents

12 or at least we can conclude this, perhaps not with 100 per cent

13 probability, but they've had these documents since May. And I was given

14 these documents after the deadline that was established by the Trial

15 Chamber, and some of them I was given on November 18th.

16 My colleague noted that I skipped a document numbered 673.6. I

17 have only one objection to this document. It does not bear a stamp.

18 And 694.4, but this is the document that I was just going to speak

19 about. So 694.4 was not listed on the Prosecution's index of October

20 30th. It also lacks the Zagreb archive stamp. It does not have the

21 brigade stamp, is not signed, and differs in its form significantly.

22 I would also like to bring to your attention a technical issue

23 here, perhaps to be of assistance to the Chamber. You probably had an

24 opportunity before to see documents of this nature, of this form, not only

25 from the Viteska Brigade but others as well where in the background there

Page 27515

1 is another text visible.

2 At that time in Bosnia, they used quite an archaic, outdated

3 system where they would use a paper for -- they would use a certain kind

4 of paper in addition to carbon copies that could be used with carbon

5 copies, and it was a very thin transparent kind of paper so that when the

6 text was printed, you would obtain sort of two texts in addition to two

7 documents unless one page was covered on the copier with another.

8 We ran into these kind of documents several times, but I would

9 just like to bring to your attention -- to point out that it is quite

10 dangerous to use these kinds of documents. I myself did not dare use --

11 JUDGE ROBINSON: Mr. Kovacic, when did you actually receive this

12 document? You said it wasn't in the Prosecutor's index on the 30th of

13 October.

14 MR. KOVACIC: [Interpretation] Your Honours, I lost track of the

15 record. I cannot tell you with certainty. I think I was given this

16 document either on November 18th or November 3rd, but do not quote me on

17 this. It was not on the index of October 30th. We received it later, but

18 I cannot tell you with certainty when.

19 Next document, 724.4, I think is almost entirely irrelevant. It

20 simply is a case of enlarging the file. This refers to the Blaskic

21 indictment, obviously, with respect to his relationship with the UN, and I

22 believe this to be completely irrelevant.

23 Next document, 726.3, Z726.3. This document does not bear

24 archival stamp. I refer here to Prelec testimony. And this indicates

25 that the origin of this document is uncertain. We don't know if it comes

Page 27516

1 from Samobor or elsewhere. This document was also not included in the

2 October 30th list. Again I cannot tell you with certainty when it was

3 delivered to us, but it was definitely after October 30th.

4 As far as the document itself is concerned, it lacks the brigade

5 stamp, has not been signed, and it is also cumulative because a large

6 number of admitted evidence so far indicated that there were -- that there

7 was combat in the areas that are mentioned in this document here. I don't

8 see that this document brings in any additional information, any

9 additional region which has not been mentioned previously.

10 Another document, 764.1. The document itself bears an unknown

11 signature which we were not able to identify, although we do know the

12 signatures of officers on duty. It lacks the stamp of the brigade.

13 JUDGE MAY: Mr. Kovacic, we're going to adjourn now. We would be

14 assisted by the Prosecution at the end of this submission dealing with two

15 matters. First of all, to ensure that these documents weren't exhibited

16 in Blaskic as alleged. If you would check that, please, over the

17 adjournment. And also deal with the allegation, suggestion, that

18 documents weren't on the 30th of October list and were, therefore,

19 delivered late. That's the other point. You can deal with that at the

20 end.

21 We'll adjourn now, rather shorter than usual because we want to

22 finish in good time before 1.00, and, therefore, we'll take a 20-minute

23 break.

24 --- Recess taken at 11.00 a.m.

25 --- On resuming at 11.25 a.m.

Page 27517

1 JUDGE MAY: Yes, Mr. Kovacic.

2 MR. KOVACIC: Thank you, Your Honour.

3 [Interpretation] And to conclude with document 764.1, the last

4 thing we have to say about it is that we think that it is repetitive for

5 practically all of its contents and, therefore, cumulative too. And since

6 my learned friend especially referred to the event of the village in

7 Gacice saying that it's been done 70 per cent, I should like to remind you

8 that two other exhibits were adduced, that is, two reports of the Vitezovi

9 unit, and these reports say that they were in Gacice. So if that is

10 relevant, the brigade's report on the situation, then it could be

11 interesting, but we know who did what in Gacice and we have evidence to

12 that effect. So this is cumulative and it is not -- and does not have

13 much probative value, that is, in that sense it is not particularly

14 relevant.

15 Let me just go back, if I may, to document 694.4. During the

16 break, I found that this document was disclosed to the Defence on the 4th

17 of September, that is after the deadline of the 30th of October -- no,

18 excuse me, I was wrong, before. So this document was disclosed but it was

19 not -- it did not figure in the index but it was disclosed.

20 And just one more thing about the document that I was talking

21 about previously, 764.1. I think that this document could also be viewed

22 in the light of the criteria that you indicated under Rule 89(D) that is

23 especially the facts here, what the -- regarding the time when the

24 Prosecution seems to have had it in their possession. Had that document

25 been disclosed in time, witnesses of the Defence could have testified

Page 27518

1 about it because at that time, they were testifying before the Court and

2 they could have told us something about that. As it is, the chance was

3 missed and, again, this is yet another document which, for the past six

4 years or so, was held by at least three intelligence services.

5 The next document is 781.1, and that is the document which, again,

6 merited special attention of the Prosecution. That is the order, Cerkez's

7 order of the 22nd of April 1993 whereby he prohibits the wearing of black

8 uniforms. All I have to say is that this was already discussed here, that

9 it is therefore cumulative, and especially that in the introductory

10 sentence, Cerkez refers to the order of his superior, that is the

11 commander of the Operative Zone, refers to its number and the date and

12 that order is in the files. Blaskic, as the highest-ranking commander,

13 sends a circular letter to all brigade commands and forbids black or any

14 other uniforms and Cerkez merely forwards that order as his subordinate.

15 I do not see what one can conclude from that and what's the

16 conspiracy that the Prosecution speaks about, that the commander is trying

17 to introduce to make some order then he is accused of scheming and when he

18 does not make order, then he is accused of not making any order.

19 The next document is 781.1 [as interpreted]. Again, does not have

20 the archival stamp. In its appearance, it is different from other

21 documents coming out from the brigade command or rather we have not yet

22 seen documents formatted as such. As to its contents, it's repetitive and

23 the introduction shows that it refers to a circular letter. I also think

24 that 89(D) is applicable here because it could have been disclosed earlier

25 and shown to a witness.

Page 27519

1 The next document is Z781.2 and here there is something which I

2 wish to single out. This document disclosed to the Defence on the 2nd of

3 October with another document referring to Rule 68. The second document

4 was ERN-1001426 in the language of the original and in English it was

5 L0017322. This document that is 781.2 does not have a stamp or a

6 signature, and I think it comes under criteria envisaged by Rule 89(D). I

7 should also like to suggest if the Chamber decides to admit it, then I

8 should like to suggest that it be put together in one set under the

9 mentioned ERN number because only those two documents together as one

10 whole explain why is Cerkez issuing instruction because this is not an

11 order. Why does he decide that some person should immediately be

12 released. That is obvious only from that first document 01001426 which

13 was disclosed to us.

14 This document shows that Cerkez is writing a letter to his

15 superior on the 22nd of April, 1993, and among other things, he says, "We

16 deem it would be humane to release those persons and report to the

17 International Red Cross and the ECMM in writing because they would

18 perceive that as a humane gesture." And concludes that, "If you think

19 that we should act differently, we shall conduct consultations to this

20 effect."

21 And after that, the next day, Cerkez decides that persons detained

22 who are in the building of the command, that is in the cinema, that some

23 individuals, several categories which are itemised here be released

24 immediately. So that is only if we have both these documents do we get an

25 answer to the question because it transpires from the second document

Page 27520

1 which seems to be tendering itself. It shows that Cerkez ordered the

2 release. The first document from which I just read a fragment, it appears

3 that he is suggesting it to his superior because obviously it is not known

4 who is responsible for those persons. So one can conclude that he

5 received an answer in the meantime and that he is carrying out.

6 But I think, and this is a very good example for Rule 89(D) that

7 this is an important document even when these two documents are joined, it

8 is an important document and the harm which it would cause would exceed

9 the benefit because there are very many other documents testifying to the

10 release of detainees. So that is as far as that document is concerned.

11 The next document is 804.1, another document without the archival

12 stamp so that its origin is questionable. And the Croatian document, that

13 is, a copy of the original, is barely legible. One can read only a word

14 here and a word there. I don't know on the basis of what the translation

15 was done. And what is even more important, its contents are almost

16 irrelevant or I could say completely irrelevant, or at any rate, it is not

17 particularly relevant.

18 The next document is 824.1. Again lacks the Zagreb stamp, the

19 stamp of the Zagreb archive so that its origin is questionable. It was

20 not on the Prosecution's index of the 30th of October, 2000, but I don't

21 know when I got it. Its contents are irrelevant or at least not

22 particularly relevant, and for the most part it is repetitive because it

23 is a report notifying the Operative Zone about three locations in Vitez

24 where some members of the regional police are HOS and some reconnaissance

25 teams are positioned, and we have heard countless testimonies already that

Page 27521

1 the Vitez Brigade held the front lines in principle and in special units

2 intervened when those front lines would fall. And we have a statistical

3 overview of the situation showing such-and-such units intervened here.

4 The next document is 891.2. The Zagreb stamp is missing again and

5 its origin is unknown. It is possible, I say it is possible, I cannot say

6 that, that it could be deriving from the Blaskic case or, rather, was

7 produced in the Blaskic case and the Prosecution had it at an earlier date

8 and should have been disclosed earlier, but I cannot really affirm that

9 because it could come from that part of Blaskic's transcripts which are

10 not accessible to us.

11 The next document is 978.1. Once again, there is no archival

12 stamp; that is, we are not sure about its origin. Or if it comes from

13 Samobor, then the Prosecution must have had it since May. I do not see

14 anything relevant in that document or at least not particularly relevant,

15 and it is largely repetitive because we have a great deal of evidence

16 already about the events covered by this report.

17 The next document is 1025.2. Again a document without a Zagreb

18 stamp and same reasoning, and it is not of particular relevance or at

19 least not a high degree of relevance.

20 1025.2 is the next document. Excuse me. No Zagreb stamp. The

21 stamp of the Zagreb archive. It is not included in the Prosecution's

22 index of the 30th of October, and it was disclosed to the Defence as late

23 as November 18th, that is, after the deadline.

24 Then 1085.5. Once again, there is no stamp from the Zagreb

25 archive, so we're not sure about its origin. We do not have any other

Page 27522

1 objections.

2 The next one is Z1146.4. Once again, it lacks the stamp of the

3 Zagreb archive. It is not on the Prosecution's list of the 30th of

4 October, but in point of fact and regardless of these formal shortcomings,

5 and we think that the criterion should be a formal one, as far as its

6 contents are concerned, we do not object. We do not need it really

7 because we believe it is repetitive. We do not think that that document

8 is needed.

9 The next document is 1188.1. My learned friend in the Prosecution

10 attached great importance to this document, and I must say that I -- with

11 all due respect, I don't see why. Namely, this report shows that some

12 other units are active on the positions or synchronised with the brigade.

13 That was the part pointed out, but we've heard a great deal of evidence

14 about this. It is not something which is inadmissible. What it means is

15 holding the front line and some operations.

16 But in view of the criteria laid down by you, this again is a

17 document without the archival stamp. So it either dates back to May or,

18 rather, the Prosecution must have had it in May and it should have been

19 disclosed much earlier. That is, it is not a new document, or it comes

20 from some other source and then it is not really credible. It was

21 disclosed to us on the 18th of November, 2000. And, in fact, to my mind

22 its contents are irrelevant. We've seen such reports before, and there is

23 nothing particularly new in any of its parts.

24 Z1196.2. If my files are correct, this document was not on the

25 list until the latest batch of disclosures when we were given the

Page 27523

1 so-called clean material. It was not disclosed to us before that, that

2 is, it was disclosed too late.

3 It lacks the Zagreb stamp; that is, we know nothing about its

4 origin. It is not on the index of the 30th of October, the index of the

5 Prosecution, and in terms of its content, it seems to me that it is not

6 relevant at all. If there is some relevance, then, again, it cannot be

7 particularly high.

8 The next document is 1228.2. It was disclosed to us only on the

9 18th of November. It does not have the archival stamp. It was not on the

10 index, the Prosecution's index of the 30th of October, that is, as far as

11 its form is concerned, but we do not object against its admission. But we

12 think that it should have been disclosed to us in line with Rule 68, that

13 is, at a much earlier date. But I requested a disclosure of documents

14 under Rule 68. The Prosecution always claimed that they had disclosed it

15 all to us. Now we see that that was not the case.

16 The next document is 1315.8, and that is the first document which

17 goes beyond the time frame of the indictment of Cerkez. It was not on the

18 Prosecution's index of the 30th of October. It was disclosed to me on the

19 3rd of November. I believe it irrelevant for the Defence or the

20 Prosecution or the incrimination of Cerkez. It is not signed. It does

21 not have the seal of the author. It does not allow to draw any

22 conclusions.

23 My learned friend dwelt on it. In particular, I do not waste your

24 time, and all I want to say is even if this is correct that among other

25 public figures, Cerkez also went to pay a visit to Zuti who had been

Page 27524

1 wounded, I really do not see any legal relevance. And it sounds to me not

2 only the guilt by association but again, you frequent the same pub as the

3 other two, and those two are thieves so you are a thief too. Except, of

4 course, that the accuracy of that information is absolutely impossible to

5 check not to mention the photographs. Not only the photographs, the

6 quality of these photographs are such that one wouldn't be able to

7 recognise one's own brother let alone somebody else. And to conclude,

8 even if he did visit Zuti while he was on the sick leave, I see nothing

9 bad about that.

10 The last document is 1335.5. My learned friend attached certain

11 importance to this document. Let me remind you that it's a document in

12 which Cerkez is present as a guest of a meeting at a meeting of the

13 municipal branch of the HDZ in Vitez on the 19th of December, 1993. That

14 is far out of the time frame of the indictment. And the agenda of that

15 meeting shows that the first item was the security.

16 So the party, as I read it, wishes to make an assessment of the

17 security situation in their place. They invited Mr. Cerkez. Mr. Cerkez,

18 as a guest of the meeting, explained the situation in the Lasva Valley

19 with the special reference to the territory of the Vitez Brigade. And two

20 more sentences, nothing bad in them, saying that military authorities

21 enjoyed full support of the HVO government in Vitez and that this

22 cooperation was to the mutual satisfaction. He thanked the gentlemen at

23 the forward office in Split, pointed out the need to mobilise our men and

24 so on and so forth. And my learned friend says that this then gave rise

25 to a lively discussion.

Page 27525

1 If this is supposed to prove that the Cerkez were working with

2 the -- for the HDZ, which seems important, then this document helps the

3 Defence because this document clearly says that he was a guest at that

4 meeting and we see that from its intervention and for the purpose which he

5 was invited to the meeting. Needless to say, this document, like many

6 others, are computer printouts without signature and, therefore, I do not

7 think that it is particularly credible. And the long and short of it, I

8 think it is irrelevant in Cerkez's case because he is being charged with

9 what he did or did not do until the 30th of September, 1993 and this is

10 after that.

11 And to conclude, the first thing I want to say is that of the 28

12 documents selected by the Prosecution, 18 do not have the stamp of the

13 Zagreb archive. Bearing in mind the testimony of Witness Prelec and the

14 record on the handing over of documents which was adduced -- which was

15 tendered in evidence with that testimony showing that the majority of

16 documents for the Vitez Brigade were handed over to the Prosecution as

17 early as May, I believe it shows that, for technical reasons, the

18 Prosecution kept those documents in their possession and did not disclose

19 them to the Defence. I also wish to remind you of the 16th of April when

20 Cerkez was to testify, he received 40-centimetres high pile of documents.

21 And we also discussed the document 692.2 and Prelec testified

22 about this. Now, the Prosecution dropped it from their list, from this

23 shorter list, and I should like to hear it from them whether they still

24 want this document in and not to have to go back to that again. Thank you

25 very much.

Page 27526

1 JUDGE MAY: Our time is short. Mr. Sayers, is there anything you

2 want to say about these documents which we haven't heard already?

3 MR. SAYERS: Just one document, Your Honour. Z1335.5, November --

4 sorry December 19, 1993. Just want to underscore the point made by my

5 colleague to the effect that this is just a computer printout. It's not

6 signed by anybody. It doesn't have any official stamp. It's not on

7 letterhead. And, as Mr. Prelec told us just a couple of days ago, there's

8 no way to tell whether this was a draft document or a real document and

9 there's no proof been adduced by the Prosecution as to where this was

10 found within the archives and that's the only contextual help cited by

11 Mr. Prelec, I think I am quoting him accurately. He said that you could

12 only determine whether it was a real document from knowing exactly where

13 it came from in the context of the archive and we don't have that proof

14 here. But that's the only document that I wish to talk about

15 specifically, Your Honour.

16 JUDGE MAY: Mr. Lopez-Terres, if you could just deal with those

17 matters we asked you to deal with. First of all, there were two alleged

18 Blaskic exhibits. Is that right or not?

19 MR. LOPEZ-TERRES: [Interpretation] Mr. President, we have checked

20 our records and only one document out of the documents produced was

21 amongst a series of documents used in the Blaskic case. It's Exhibit

22 673.4, and there was a document used by the Defence in the Blaskic case

23 that bore the number D273. In relation to that document, it's a document

24 dated 16th of April. It's about the shelling of Vitez, especially the

25 centre of the town where you had the general headquarters of the Vitez

Page 27527

1 Brigade.

2 This document bears the stamp of the archives, and I would like to

3 mention that this -- it was not the case for the Blaskic document but I

4 don't think that's the most important thing. At the beginning of my

5 submissions, I said that as for the day of the 16th of April, we thought

6 that it was important to show the judges that there was a sequence of

7 reports, of orders that had been delivered during the morning of the 16th

8 of April. And this particular document is the first in the series of

9 documents, because this document was delivered at 9.00 in the morning on

10 the 16th of April.

11 JUDGE MAY: But Mr. Lopez-Terres, if it was used in Blaskic, how

12 can you say it's a new document?

13 MR. LOPEZ-TERRES: [Interpretation] It is not a new document in

14 terms of information of the content of the document itself, but we deem

15 that the documents bearing the Zagreb stamp could be used. At the time

16 when we made that selection, there was no exclusion of documents related

17 to the Blaskic documents, but I would like to repeat that this document is

18 interesting in so much that it is the first in a series of documents.

19 JUDGE MAY: We can follow the relevance. Thank you. The other

20 point that was made was that some of these documents were disclosed after

21 the 13th of April, indeed not until last week.

22 MR. LOPEZ-TERRES: [Interpretation] I regret to say that all the

23 things that were said by Mr. Kovacic are not accurate, because we've

24 undergone a number of checks and everything points to the fact that this

25 document that you see on this list of 28 documents, all these documents

Page 27528

1 were disclosed to the Defence within the time frame set by the Chamber.

2 Many of these documents had been disclosed on the 30th of October

3 to the Defence, at the time when it was -- Mr. Cerkez was still slated to

4 testify. So we had disclosed these documents. And the Defence had

5 complained about that, saying that we had disclosed too many documents at

6 a late stage. So now they can't really say that they have not received

7 the documents, whereas at that time they had shown you physically the

8 height of the pile of documents they had received.

9 I can give you, if you wish, the numbers of these documents, but

10 based on the information I have, all the documents they tell us they don't

11 have have been disclosed too late have actually been disclosed within the

12 time frame.

13 A lot of these documents have been disclosed before the testimony

14 of Mario Cerkez, when we thought he was going to testify, and the other

15 documents have been disclosed on the 25th or the 30th of October.

16 It is true that maybe they are not on what Mr. Kovacic calls the

17 index, but they -- you can see them on these documents, these receipts I

18 can show you here are dated 25th and 30th of October whereby Mr. Kovacic

19 acknowledges that he has received these documents. If you wish, we can

20 submit these documents, these receipts to you.

21 I think that it is not -- when -- maybe they were not on the index

22 of the 30th of October, but they were on the list that had been given to

23 Mr. Kovacic, and there is no doubt that these documents were disclosed to

24 the Defence within the actual time frame.

25 JUDGE MAY: Thank you, Mr. Lopez-Terres.

Page 27529

1 We have two matters to -- no. We have two matters to deal with

2 now. One is the miscellaneous documents and the other one is the diary.

3 As far as the miscellaneous documents are concerned, we have got

4 not only a full schedule setting out the documents and the points to be

5 noted in relation to them, and given the shortage of time, I don't propose

6 to invite submissions from the Prosecution. We have the Prosecution list

7 of those that they particularly rely on.

8 Mr. Lopez-Terres, that being so, as I say, unless there is some

9 particular submission you want to make about a document, I propose to hear

10 the Defence and then move on to the war diary.

11 MR. LOPEZ-TERRES: [Interpretation] I indicated to the Chamber that

12 there were two documents that you have on this list that had already been

13 admitted. It's document Z819.3, Z819.3, and it was admitted under the

14 number Z819.2. And the other document was admitted recently during the

15 testimony of Mr. Prelec. It's Z2709.1.

16 The last comment I would like to make deals with a specific

17 category of documents that Mr. Scott mentioned during his first

18 submission. I'm talking about the documents dealing with the very close

19 relationships that existed between the HVO and the military and political

20 authorities at the highest level, because you have a document referring to

21 the Minister of Defence of Republika Srpska during the period going from

22 June to November 1993.

23 These documents shed light on the facts that the accused have been

24 charged with. I would like to remind you that some witnesses referred to

25 the shelling of their villages, especially the village that has become

Page 27530

1 notorious in this case, the village of Tulica. Witnesses told us that the

2 village had been shelled by the Serbs. And it's within this background

3 that I'd like you to consider these particular documents and also to

4 consider what Mr. Scott said about these documents two days ago.

5 I could give you the reference of these documents, if you want,

6 Your Honour. It's 1109.2 -- 1109.2, 1119.2, 1115.4, 1148.4, and 1316.3.

7 JUDGE MAY: Thank you.

8 Mr. Sayers, if you could make your objections, as far as possible,

9 in general terms.

10 MR. SAYERS: Yes, Your Honour. Let me point out to the Court that

11 unlike the documents that were dealt with under Kordic documents and the

12 Cerkez documents categories, our records indicate that all of these

13 documents were timely provided, with the sole exception of the translation

14 item number 12 on Mr. Lopez-Terres' November 22, 2000 letter, but we waive

15 any objection to the late provision of the translation.

16 In general terms, Your Honour, all of these documents do not

17 really address the core issues in the case. They're cumulative. But also

18 the only particular point that I would make is that to the extent that an

19 argument is being made that these documents show cooperation or

20 collaboration between the Serbs and the Croats in the Vares area, which is

21 the only point that they're proffered to illustrate, as far as I can see,

22 no live witness has really been called to give any testimony on that and

23 so these documents would be freestanding for the proposition for which

24 they are offered. But even for that proposition, Mr. President, we would

25 suggest that that's not -- not critical. It's not really relevant to any

Page 27531

1 of the core issues in this case which concern the guilt or innocence of

2 the accused.

3 That's all I have to say since we've already put our position in

4 writing on those. Thank you.

5 JUDGE MAY: Mr. Kovacic.

6 MR. KOVACIC: [Interpretation] In order to save time, Your Honours,

7 we concur in what our colleague has just stated. And if I may,

8 Mr. President, I want to point out just one more matter.

9 All of the facts stated by me relating to when each document was

10 or was not delivered to us, we need to add the following -- what I had in

11 mind is whether these documents were listed within the index or not.

12 So the index was a framework, and with this index there were also

13 enclosed documents. The index was fairly inaccurate and did not really

14 list accurately the documents. In addition, this enclosure contained all

15 other kinds of enclosures, poorly copied and irrelevant and so on.

16 What was relevant for us is the following: That the document

17 listed in the index were the documents that we considered relevant.

18 Everything else that was enclosed but was not listed in the index is

19 irrelevant to us.

20 The Prosecution expressed their intention through the index. What

21 was relevant to us is that the index contained all of the documents that

22 we wanted to review.

23 Another issue. The other day, I was verifying with my colleague

24 the Hunton & Williams lists, and what was peculiar is that when we

25 compared our mutual lists, they had their own lists and we had ours, and

Page 27532

1 we do not even use the same methodology. Well, as we compared these

2 lists, we were able to find that -- we found that there were four or five

3 documents, the fact of which quite differed out of several hundreds of

4 documents.

5 So what I have stated is correct. If I stated that the document

6 was not listed on the index, that means it really was not listed. Now,

7 whether it was in the enclosure or not, that's irrelevant. And some of

8 them were delivered after the date of October 30th. I could not state

9 this for every document, but it is a fact that not all of the documents

10 were delivered to us on time prescribed by this Trial Chamber.

11 JUDGE MAY: We'll turn next to the diary.

12 MR. NICE: I don't know if the Chamber's brought with it its

13 copies of the English translation of the diary today or not. I ask that

14 it did equip itself with it, but that was a couple of days ago now.

15 JUDGE MAY: We have here English and the Croatian. It seems to be

16 200-odd pages.

17 MR. NICE: Yes.

18 JUDGE MAY: Dated the 11th of January or does it relate from the

19 16th of April to the 15th of May. I haven't looked at it in any detail.

20 MR. NICE: Your Honour, it's a document of very considerable value

21 to the Chamber. It's a document which, on inspection of the original, the

22 Chamber may readily conclude is simply not capable of being a concoction

23 both by it's very form, and by its content and the context into which it

24 can be placed.

25 With the usher's assistance and to save time if I can just lay one

Page 27533

1 page on the ELMO straight away, a page Mr. Sayers referred to earlier, an

2 anomalous entry that in the English translation, you can find at page 23,

3 but the way it's reflected at page 23 doesn't necessarily do justice to

4 the original because what one can see on page 23 is simply the reference.

5 If you go to the foot of the page and plainly out of the appropriate time

6 frame war diary from 15th of April, the rest of the entries on that page

7 relating to the 27th and 28th of January.

8 But what one can see on the original is that those words about war

9 diary from the 15th of April have been written over, for whatever reason,

10 other entries that are all part of the January record of this diary. So

11 that for whatever reason, and I assume it's written over as opposed to a

12 copying error, somebody's done that and it's done that on that page. But

13 that's the only odd feature.

14 Now, if I could invite the Chamber, in order to assess the

15 potential value and, again, the clear integrity of this document as a

16 document, if I could invite the Chamber to come back to page 11 in the

17 English and if the usher -- I've got some of these marked so that I may be

18 able to display them without taking time. The Court will see, for

19 example, an interesting entry towards the foot of the page for the 20th of

20 January reflecting that Kostroman, it was, who was disarmed at the

21 barricade which, of course, was not originally in line with the evidence

22 that we were calling on this topic, although it may well become clear that

23 that may well be right rather than it being Kordic or some combination of

24 those that that, I think, can be found -- I just place that original

25 straight away on the ELMO. If the -- you can see the references to

Page 27534

1 Kostroman there, I think.

2 Then we can -- if Your Honour turns over, for example, to page 12,

3 I won't trouble the usher with this one for the time being, you can see in

4 the middle of the page the explosive device at the bank. If the Court

5 goes over then, I hope I'm not going too fast to page 617, we are now on

6 the 24th of January, the second checkpoint incident and again one sees at

7 the foot of the page, "1515. Shooting. One of our men killed," and 1545,

8 confirmation that it was one man killed. The Court will have some

9 recollection of the issues there between one and two men.

10 If one turns on then to page 22 for the --

11 JUDGE MAY: Not too quickly for the interpreters or, indeed, me.

12 MR. NICE: Right.

13 JUDGE MAY: Where were you on the 24th of January?

14 MR. NICE: I was on the 24th of January.

15 JUDGE MAY: Page 16 in the English.

16 MR. NICE: Page 17 in English.

17 JUDGE MAY: I have it, yes.

18 MR. NICE: And it's "1515 hours. One of our men was killed."

19 JUDGE MAY: Of course that -- just pausing there for a moment, we

20 haven't got long, but to be entitled to rely on that, you would no doubt

21 argue in rebuttal of the various points that have been raised.

22 MR. NICE: Of course, yes.

23 If we move on to another and extremely significant entry at page

24 22, for the 29th of January, the Court having in mind the tape-recording,

25 the audio tape-recording of Kordic giving artillery instructions, the

Page 27535

1 exhibit that is the subject of application in the Kordic papers from the

2 man Batinic, who is referred to in the tape, the artillery officer,

3 complaining about Kordic giving artillery instructions. One sees at the

4 foot of page 22 and then at the top of page 23 references in this diary to

5 his doing just that.

6 If I can find the originals for that, but it may be that it's not

7 necessary. They are certainly to be found in a diary that clearly

8 reflects, without our being experts in the matter, different hands and

9 different styles of writing and, indeed, different types of entry.

10 Different degrees of detail being entered. Yes, I'll just put that one,

11 I'm afraid I've marked that one slightly on the right-hand side, that one

12 there. If we put this on the ELMO. You can see towards the bottom of the

13 page where I've got a little red mark on the right the two references to

14 Kordic.

15 Your Honour, this is all really by way of preliminary, because we

16 haven't yet reached the central focus of, perhaps, this diary which is as

17 was explained, comparatively sparely kept in the early days but kept in

18 detail as at the 16th. If we go to -- I'm going to pass over a lot of

19 other entries for speed, but if we go to the -- if we go to page 39 for

20 the 25th of February, there's a small entry there which will become of

21 significance next week, in the course of next week's evidence, where

22 there's a reference to the flag on the factory being taken down towards

23 the end of February. There's going to be significant evidence in relation

24 to that. I shan't say more about it, but significant evidence in relation

25 to that next week.

Page 27536

1 Then, if I can take you to the central issues at page 68. And at

2 page 68, we are in the 15th of April. And as Your Honour will see, at the

3 foot of the page, there is a reference to a meeting held at 1730 hours

4 with the composition of the meeting set out. The Chamber will --

5 MR. SAYERS: Mr. President, I hate to interrupt but in the

6 document that's been given to us, page 68 has been missing. It goes from

7 67 to 69.

8 JUDGE MAY: Can we have a copy of 68, please.

9 MR. NICE: Can I lay mine on the ELMO? I remember that this was

10 faxed to them on Saturday, and I also remember that there were

11 difficulties with the Hunton & Williams fax machine, and it was a matter

12 of discussion. But I understand that it was effected -- it's the entry at

13 the bottom of the page where, and I'm sorry it's got highlighting, and you

14 can see that following the meeting with Colonel Blaskic on the 15th of

15 April at the -- the following, "To the meeting with Colonel Blaskic at

16 1730 hours, the battalion commander, commander of the Vitezovi, the

17 Tvrtko, the civilian police commander."

18 Your Honour will possibly know but because I know you've kept

19 yourselves apart from the detail of next week's evidence, which I shan't

20 spell out in any further way, that Your Honour may appreciate the meeting

21 referred to here is a meeting that is going to be spelt out next week and

22 was a meeting of which the Prosecution had no earlier knowledge, as I

23 understand it and recall, before we knew of the evidence that's coming

24 next week. Certainly we didn't know of it in that form.

25 If I can have my English version back. Thank you very much.

Page 27537

1 Incidentally, that meeting - if the usher could be so good - is to

2 be found on, I think, this page here. The entry on our page 68 actually

3 crosses two pages, but you can see at the top of this page the -- yes.

4 You can see part of the entry that I've just read out.

5 And the Court will recall, I'm grateful for being reminded, the

6 problems of late translation on receipt of this document from the Zagreb

7 materials were eased by the fact that the translation we're working on was

8 provided by the institution but initially to Defence in another case

9 pending on appeal.

10 If Your Honour then goes on to the 16th of April itself --

11 JUDGE MAY: We could see there are references on the 16th to

12 Mr. Kordic asking for information and ringing in regularly. That's no

13 doubt the way you would put it.

14 MR. NICE: That's absolutely right. And I must not understate the

15 significance in order, as it were, to take advantage, after the event, of

16 something I haven't drawn to your attention. Apart from the regular and I

17 can't remember now how contacts it is between Kordic and Blaskic, there

18 is, at Your Honours' page 94, and at two minutes past six, a critical

19 entry or a very interesting entry, putting it at its mildest, about

20 Kordic, the Colonel, and Pasko.

21 And if I could, having drawn that entry to your attention, just

22 invite you to come back to page 87 for one matter of detail. This diary,

23 from time to time, records not only orders but the number of orders, the

24 file number of orders that have been referred to. And on page 87, at

25 1508, there is a reference to a report with its number, 12513. That is

Page 27538

1 the document that's already been produced from Cerkez saying that the

2 villages have been 70 per cent done.

3 JUDGE MAY: Have you the number of it, please?

4 MR. NICE: I'm so sorry, I haven't. It's my mistake. I've not

5 put that down. We'll find that immediately, if we can.

6 JUDGE MAY: If you would.

7 MR. NICE: Yes. Meanwhile, one goes on from the 16th of April,

8 and Your Honour obviously has in mind the points that we would make on

9 this document, there are simply -- well, there are almost enumerable

10 entries of interest. Perhaps at page 100 it's worth observing, in the

11 middle of the page at 2150 the name Nikola Krizanovic, which has featured

12 recently as a person who was indeed involved with an interest in the SPS

13 factory at the time.

14 Then one can go on to cutting out nearly all the other

15 references. Yes, there are too many really. And wherever the name

16 "Kordic" appears it will read from the page and be of obvious

17 significance. I'll just pick perhaps one.

18 Page 121, now on the 17th of April at eleven minutes past eight,

19 Kordic calling the Colonel. "He told me that the brunt of the attack was

20 headed our way. We've hammered Kuber," and so on.

21 Lots of references in what follows to Zenica. No direct

22 references, let it be said, to the shelling of Zenica on the 19th, but a

23 gap in the recording of events at that time, and no reference to shelling

24 by the Serbs on Zenica at that time.

25 Very interestingly, at page 137, now on the 19th, and at 9.30 ...

Page 27539

1 [Trial Chamber confers]

2 JUDGE MAY: Yes. If you could wind up.

3 MR. NICE: Certainly. Let me wind up in this way. I'll miss out

4 all the other points because we come to something slightly different.

5 The Court will recall by Mr. Sayers' memorable phrase the issue of

6 the convoy on the 28th of April which he most recently characterised as

7 the phantom convoy. Page 190 at 1400, a call from the Puticevo checkpoint

8 to ask if they should let a convey through.

9 JUDGE MAY: Puticevo. Just remind us where that is.

10 MR. NICE: That's just up the road from Vitez, in the direction of

11 Donja Veceriska.

12 I ought, of course, to draw your attention that at page 207, the

13 last page of the document, and reflecting no doubt it may be his use of

14 this document in preparation of his own case, but, nevertheless, Blaskic

15 certifies that there are two pages probably been torn out deliberately

16 because the time doesn't match noticed -- beg your pardon. He said

17 noticed in June 1993. So not in relation to his case but be that as it

18 may.

19 The page numbers can be seen on the original. They're very

20 difficult to find. They can be seen. And this document, like one other

21 document which I do want to have a reference to later on very briefly, is

22 a double-page document in the original. If Your Honour looks at what I'm

23 holding up, it's a document that is constructed with open pages like

24 that. It's a double-page document like that. And the numbers can just be

25 seen sufficiently to trace down the missing pages.

Page 27540

1 JUDGE MAY: It appears to have the archive stamp.

2 MR. NICE: It's got the archive stamp on every page.

3 JUDGE MAY: So that particular argument is irrelevant.

4 MR. NICE: Indeed.

5 JUDGE MAY: Because the argument really is: At this stage of the

6 trial should this document be admitted?

7 MR. NICE: Yes. Well, in our respectful submission, it is

8 effectively a record of the activities, of the business. In business

9 record terms, it would qualify. It's entered by a number of different

10 people. Let it be said at once it doesn't go all one way because insofar

11 as it contains passages alleging concern about Muslim aggression ahead of

12 events, I can't argue that that's going to have been written down with any

13 calculated or calculated plan. It's a document that's likely to be a

14 reasonably accurate reflection of what was being done and said in the

15 Hotel Vitez at the time.

16 And you've seen again how the Kostroman point may well be a point

17 that on that particular detail will rebound to the Defence advantage,

18 although, as I've already said, our evidence, in they event, would

19 probably be drifting towards that ultimate conclusion.

20 I don't know if I can help further on the diary at the moment.

21 JUDGE MAY: Thank you.

22 Mr. Sayers.

23 MR. SAYERS: Your Honours, at this point in the case, after

24 Mr. Kordic has closed his case, to have a document like this suddenly pop

25 up containing these allegations against him, we would respectfully submit

Page 27541

1 fundamentally implicate the considerations that lie at the heart of

2 Rule 89(D). How in the world do we even know who actually wrote this

3 book? Apparently somebody's been at it, as the Prosecution specifically

4 noted. In the page 207 of the English translation anyway, apparently

5 Colonel Blaskic has been at it and taken pieces out.

6 Now, if he has taken pieces out, that leaves open the possibility

7 that maybe he's put pieces in.

8 And let me just suggest this to the Court: This is a document

9 that covers January 11th, purportedly to May the 19th of 1993. Why does

10 it start on January the 11th and why does it end on May the 19th. Where

11 are the diaries before this? Where are the diaries after this? If this

12 is real. Presumably these would have been disclosed along with the other

13 documents in the Croatian State Archive. Why just those dates?

14 A few other things for the Court to consider. In the Croatian

15 original, Mr. President, there are 96 pages in handwriting written by who

16 knows whom. I certainly don't. Now, Mr. Nice says, "Well, this is

17 clearly from the Operative Zone." Well, how does the Court know that

18 other than what Mr. Nice actually says?

19 We would respectfully submit that it doesn't. The Prosecution

20 hasn't produced a single authenticating witness to talk about this

21 document. And they've had if for quite a time, and we suspect that they

22 have, why wasn't this document put to the numerous people from the

23 military organisations in the Viteska Brigade who have testified for

24 months in this case?

25 But think of this. Here just my observations, and I have only

Page 27542

1 been through this document very briefly, Mr. President. The Court will

2 recall that there was an outbreak of fighting in Busovaca on January the

3 25th. Now, this diary has three-quarters of one page devoted to that

4 particular event, one of the most significant events in this trial

5 according to the Prosecution.

6 On April the 13th, there are three pages of entries. On April the

7 14th there's a half a page. On April the 15th, I believe, although I

8 don't have that page with me and I want to say that Mr. Nice is correct,

9 apparently his office did fax the April the 15th entry over to us last

10 Saturday, I just didn't put it in the book here and I apologise for that,

11 but apparently there's one page. April the 16th, 28 pages. Minute by

12 minute.

13 Now, who wrote those entries? Who recorded what was being

14 reported about conversations that had apparently occurred over the

15 telephone, hearsay several times removed? How do we know that those

16 entries were, in fact, written contemporaneously, as the Prosecution

17 contends, or not recreated after the event by someone, perhaps

18 Colonel Blaskic, when he apparently reviewed this document at his leisure

19 and removed pages from it? How do we know that? We don't. We're left in

20 the realm of speculation and guess work and conjecture and there's no way

21 to get us out of it, unfortunately, and that's really the heart of the

22 matter under Rule 89(D).

23 As Mr. Nice says, several of the entries in here contain

24 recitations of what Mr. Kordic supposedly said or what Mr. Kordic

25 supposedly ordered. Well, there's no indication that the recorder of

Page 27543

1 events actually participated in those telephone conversations. So at a

2 very minimum they'd have to be hearsay and second time removed even if

3 they are contemporaneous entries and, respectfully, there's simply no way

4 to verify that they are.

5 What is true of April 16th is also true, I believe, of several of

6 the subsequent days like April 17th, for example. I haven't counted up

7 the number of pages, but they are not significantly less substantial than

8 the April 16th entry. So if we are to believe this document of the 180

9 days that it supposedly encompasses, 30 per cent of it is devoted to one

10 day. Now, to say that that strains credulity would understate the matter

11 to some degree.

12 JUDGE MAY: It may be said, of course, but it may be said, and we

13 would have to consider, whether those days which are the subject of most

14 entries were the days that are subject of the most action, for instance,

15 the 16th of April.

16 MR. SAYERS: Mr. President I take your point precisely. Then

17 consider then the three quarters of the page that is devoted to the

18 extremely significant outbreak of fighting in Busovaca that resulted in

19 the loss of a significant the amount of territory, a significant amount on

20 January 25th through or until January 30th when the cease-fire agreement

21 was signed. 2.200 Croats kicked out of their homes between Kacuni and

22 Bilalovac. Ten Croats massacred at Dusina. Not so much as an entry. No

23 reference to that in this document, Mr. President. Why not? I mean this

24 was one of the more significant events for Croats in the first half of

25 1993. This was the first massacre in the Lasva Valley. And I don't see

Page 27544

1 any reference to it in this document.

2 But you've got three quarters of a page devoted to the single-most

3 significant outbreak of fighting before April 16th, and I absolutely take

4 Your Honour's point. It's entirely possible that April 16th was singled

5 out for particular attention because the most significant events occurred

6 then. It is entirely possible. Yes, indeed, that is a possibility. But

7 we need to take this document out of the realm of possibility, especially

8 after we've closed our case, and inject it into the realm of certainty

9 through authentication, through knowledgeable witnesses who participated

10 in the drafting of this document and who can bring some personal knowledge

11 rather than just bold argument from the Prosecution as to what these

12 entries must necessarily mean to Mr. Kordic's significant and incurrable

13 prejudice, we would submit.

14 I think that pretty much covers the territory I'm interested in

15 covering. Thank you very much.

16 JUDGE MAY: Mr. Kovacic.

17 MR. KOVACIC: [Interpretation] Your Honours, I do not think one

18 should go into detail and analyse it in depth. We fully go along with

19 what Mr. Sayers said. This document simply does not look convincing. We,

20 in particular, agree that it should be viewed in the light of Rule 89(D)

21 because the Defence would no doubt find itself in the predicament after

22 the completion of both the Prosecution case and the Defence case.

23 However, as for the value of the document as such, I'd like to remind you

24 of one element. Alongside all that my colleague has said, the vital

25 question is: When did this document come into being if it did? Not only

Page 27545

1 because we heard Blaskic, himself, say that some pages had been torn out

2 and there are some rumours that some may have been added, but the question

3 is: When was it all written?

4 I do not wish to waste your time by analysing various facts, but

5 there are a number of contradictions here which seem to point in that

6 direction. But since we have this document on the table before us today,

7 I do not think there is any reason to use it unless we have a witness, as

8 we did in a conventional manner with a number of other documents. A

9 witness may know something about an event, and that can be source for our

10 information. We can learn something from a document, and then we can ask

11 the witness about this. But this document cannot become evidence, cannot

12 become an exhibit until the Prosecution has proven its credibility, it's

13 authenticity at a much higher level. And that should also include a live

14 witness who would confirm the manner of writing this document at the time

15 when it was written.

16 Just a minor correction, I believe it was just a slip of the

17 tongue, but perhaps it was deliberate. I do not remember it from the

18 diary, but my colleague Nice mentioned a place called Puticevo and linked

19 it to Donja Veceriska. They simply have nothing to do. Puticevo is far

20 from us in Travnik. It has nothing to do with the municipality of Vitez,

21 and I didn't get it whether you found it in the diary or whether it was

22 the conclusion of my colleague, but they have absolutely nothing to do.

23 MR. SAYERS: Your Honour, I know I've already taken up my time,

24 but could I make two very brief points?

25 The first is during the cross-examination of Sir Martin Garett on

Page 27546

1 February 1st of 2000, I showed Sir Martin a document and the question was

2 put at me: "Are these documents which the witness is likely to have

3 seen?" And I said, "I don't know without asking him now, Your Honour."

4 And the instruction I was given was, "No, but these are matters which you

5 must prove in some other way. It's no good just asking the witness when

6 he has no recollection putting a whole lot of documents ..."

7 THE INTERPRETER: Could you slow down, Mr. Sayers.

8 MR. SAYERS: My apologies to the interpreters. "... putting a

9 whole lot of documents to him which he can't have seen. Let's move on.

10 You can deal with this in your own case."

11 And we surely would have dealt with this document in our own case

12 if we had had it. And there's no excuse, five years after the

13 confirmation of the original indictment and, might I say, Your Honour,

14 after the entire trial in the Blaskic case, this is -- the Prosecution is

15 a unitary institution. We don't re-invent or visit facts for the first

16 time in this case. There are all of the other cases which the Prosecution

17 has tried involving the facts in the Lasva Valley and yet, for the first

18 time, we appear to be confronting this document.

19 But the final point I wanted to make was we have had one witness

20 talk about this document and only one witness, and that was Mr. Prelec on

21 November 20th. And I'm looking at the -- page 27.266 and the one page

22 that was the subject of questioning of Mr. Prelec, obviously was the one

23 page which was of such concern to the Prosecution. I asked Mr. Prelec,

24 how it came that the April 15th entry had been written over other entries

25 in January of that purported document.

Page 27547

1 "Q How is it that that entry is it right in the middle of a

2 page dealing with events in January, do you know?

3 A I have no idea."

4 So I said,

5 "Q Have you made any inquiries along those lines?

6 A No. And frankly, I wouldn't know where to start. It

7 appears to have been written over by someone else."

8 And then this question,

9 "Q And you don't know who wrote over it

10 something else or when, do you?

11 A No, that's correct."

12 So the one page which has been examined from this document has a

13 fundamental inconsistency on it which even the Prosecution's own witnesses

14 can't explain, and under those circumstances, there's simply got to be a

15 reliability component, Your Honour. Even if this were during the

16 Prosecution's case in chief, and we would suggest that to the Court very

17 earnestly that that suggests unreliability as does the fact that someone's

18 been at this document, presumably Colonel Blaskic, for whatever reasons

19 which I think we can all guess.

20 But the point is at this late stage of the case, Rule 89(D) must

21 come into play and if ever there were a case for the application of that

22 rule, it's in this instance. Thank you.

23 MR. NICE: May I just make about four points?

24 JUDGE MAY: Could you help us with this? Is there an original of

25 this document anywhere available.

Page 27548

1 MR. NICE: It's still in the archive, I understand. We have the,

2 of course, photocopy of the original. That's probably as good as we'll be

3 able to do. If the Chamber wants the original itself, it conveys that to

4 the archive, it may be that would have some effect of releasing it to us

5 and --

6 JUDGE BENNOUNA: Mr. Nice, can you tell us how the -- your office

7 did get this copy from the archives?

8 MR. NICE: Got it from the archive in the same way as it got the

9 other documents as I understand it and it was brought up in photocopy

10 form.

11 JUDGE BENNOUNA: Who copied that?

12 MR. NICE: I would need I think to speak to Mr. Prelec about that,

13 but I think that the copying was done for them not by them. So it was

14 copied in the archive and handed over according to procedures, but I may

15 need to check that and I'll do so.

16 But the document would have been seen first of all by either

17 Mr. Prelec or by one of the other people there and identify as a document

18 that was wanted, and then it would have been copied and handed over. So

19 that there's an ability to match what's been seen originally with what's

20 provided.

21 JUDGE BENNOUNA: And to try to clarify what Mr. Sayers, his own

22 doubts about the dates, he said this is one diary starting I think on

23 January to such date. Are there other diaries in the archives other than

24 this one?

25 MR. NICE: There may be. That's another matter that I want to

Page 27549

1 check because I was stimulated to think that, but I don't want to give you

2 an answer until I have checked. So I'll check that and I'll try to get

3 Mr. Prelec down here straight away.

4 Can I make the following, I think, four or five points very

5 briefly? No conceivable purpose to forge this document can really be

6 established. It's suggested that Blaskic may have interfered with, but if

7 one looks at the document as a whole for its manifest form and composition

8 by different people, inconceivable that it could have been forged. It's a

9 fantasy to think it could be. There comes a stage when, indeed,

10 Mr. Prelec said in relation to a slightly a different topic, namely the

11 overall archive, it is not a matter of expertise. It's a matter of common

12 sense that it's beyond construction.

13 Second, the document title is worth just having in mind. We've

14 all been, perhaps, drawn by the words, "War diary", but what it's actually

15 said to be is a book of observations of the officer on duty and that, of

16 course, may very well explain why not only do you have different hands but

17 you have a different degree of detail recorded not to account for the

18 difference between the 16th and other days, but you may have a different

19 degree of detail made by different reporting officers as reflected in the

20 document generally.

21 It was a document that came to us very late -- so sorry.

22 [Trial Chamber confers]

23 JUDGE BENNOUNA: Mr. Nice, can you help us? You said that this is

24 different writing because it was written by the officer on duty. What was

25 the role of Colonel Blaskic in regard of this diary when he signed at the

Page 27550

1 end? What is his role exactly?

2 MR. NICE: I imagine as supervising officer, but it wasn't he who

3 recorded things. And, of course, one of the explanations that one can

4 offer as to why certain things are not on here is because the officer on

5 duty will record and see and hear some things but not everything. And

6 it's probably only what is recorded at base in his presence that gets

7 recorded here. Consistent, of course, with a wide range of matters being

8 recorded on the night of the 15th, 16th, and 17th when, on the evidence,

9 things were being controlled from Hotel Vitez. Different considerations

10 may well arise and did arise, of course, when either Blaskic was elsewhere

11 in Kiseljak unable to get back to Vitez or out in the field. So that this

12 is what the officer on duty at base is in a position to record and,

13 according to his own habits or practices, did record.

14 The reason that the document wasn't put to other witnesses because

15 it wasn't available to us. Now, next week's witness may be able to help

16 with it. I have to tell the Chamber, we're still in open session --

17 perhaps we can go into private session, very briefly, perhaps.

18 JUDGE MAY: Perhaps. Perhaps you could speed up.

19 MR. NICE: May I go into private session very briefly?

20 [Private session]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 27551

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Page 27552

1 [Open session]

2 MR. NICE: Your Honour, yes. There are some outstanding things.

3 I'm not going to be here myself tomorrow. I'm going to be away.

4 JUDGE MAY: Well, we're not proposing to sit tomorrow.

5 MR. NICE: Right.

6 JUDGE MAY: Unless there is some urgent matter which needs

7 attention.

8 MR. NICE: Can I list the outstanding matters very briefly?

9 JUDGE MAY: Yes.

10 MR. NICE: One, although we are loathed to burden you with paper,

11 there is the record, the ex parte notification of the record of our

12 performance of duties in relation to these documents which we feel we

13 ought to lodge or file ex parte.

14 JUDGE MAY: Yes, we can do that.

15 MR. NICE: Point number two, there is outstanding the AO matter.

16 I haven't burdened the Chamber with written argument. I would prefer to

17 deal with that briefly and orally next week.

18 JUDGE MAY: Yes.

19 MR. NICE: Three, I don't -- I think a very brief further

20 consideration should be given to the document that Mr. Sayers correctly

21 said he had no translation of, the logbook. I can do that next week.

22 It's a freestanding issue. It will take me about one minute to explain my

23 position on that, which is going to be that the Chamber may feel it ought

24 to be exhibited in some form.

25 Four, in relation to next week, I am going to be serving some

Page 27553

1 Rule 68 material, potentially Rule 68 material, as the Chamber knows,

2 pursuant to my application. To resolve any uncertainty, I am going to add

3 three other pieces of material which I don't think are sensitive to the

4 material that the Chamber, I think, has specifically dealt with, and that

5 is available immediately and will be handed over.

6 Finally, there are issues arising in relation to next week's

7 evidence of a type similar to that which I raised with the Chamber of

8 necessity ex parte some time ago, a week ago, I think. I think I'll just

9 simply have to mention them on Monday morning before Court starts.

10 JUDGE MAY: Very well. We'll adjourn now until Monday morning,

11 half past nine.

12 --- Whereupon the hearing adjourned at 12.55 p.m.,

13 to be reconvened on Monday, the 27th day of

14 November, 2000 at 9.30 a.m.

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