1 Tuesday, 5
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.34 a.m.
5 JUDGE MAY: Mr. Nice, the Trial Chamber proposes that we deal with
6 the matters in this way: We'll deal first with the outstanding matter of
7 exhibits, and in that connection, it might be sensible to try and deal
8 with them, as it were, chronologically and begin with the Cerkez motion,
9 the Cerkez Defence motion, about additional materials. So you will deal
10 with the Cerkez aspect.
11 We then have, I think, the Prosecution rebuttal documents followed
12 by the Kordic Defence Zagreb materials. We then have evidential matters;
13 Witness AO and the tape are still outstanding.
14 We have other matters, I think, about rejoinder which are not very
15 long, and there's a motion about monitoring, as far as one of the accused
16 is concerned.
17 So if we can deal with the matters in that way. Unless anybody
18 has any contrary submissions, we'll begin with the Cerkez motions.
19 MR. NICE: No contrary submissions, except that Mr. Lopez-Terres
20 was -- I'd intended for him to deal with that. For some reason, he's not
21 here, but he'll be here imminently and I'll hold the fort until he
23 JUDGE MAY: Well, are you asking us to take something else other
24 than --
25 MR. NICE: No, no. I'm sure Mr. Lopez-Terres is prepared and
1 he'll be down immediately. There must be a misunderstanding between him
2 and me as to his immediate requirement here, my fault no doubt.
3 JUDGE MAY: Mr. Kovacic, we'll begin, then, with your additional
4 materials which you've put in, and also your Zagreb materials.
5 Now, we've got here schedules. We've got, in fact, a binder, but
6 we've got schedules we can usefully look at of your additional materials.
7 In relation to them, the Court has taken a fairly liberal view as far as
8 the materials adduced on behalf of the Prosecution were concerned and also
9 those adduced on behalf of your co-accused. As I recollect our rulings,
10 the material was excluded if it wasn't translated or if it was illegible
11 but otherwise, as I recollect, we broadly included all the material. It
12 would seem right that the same rulings should apply as far as your
13 material is concerned.
14 In relation to Zagreb, you ask for two documents to be admitted,
15 which seems modest enough. The Prosecution say that the second of those
16 is part of a series, one of which we'd excluded under the Zagreb material
17 earlier. But they say if there's a series -- one has already been
18 admitted, you ask for another one to be admitted, and they want the third,
19 which seems sensible enough.
20 Is there anything more you want to say at this stage?
21 MR. KOVACIC: [Interpretation] Your Honour, that is my impression,
22 that is to say, that the standard you mentioned in terms of the
23 presentation of evidence by the Kordic Defence and the others, it all was
24 reduced to technical things like illegibility, the nonexistence of
25 translations. If I may say so, I made the criteria even stricter. We
1 tried to avoid duplication. In the meantime, many documents were
2 introduced that this Defence intended to tender in that way so that
3 considerably abbreviated the proceedings.
4 As for this second document from our submissions related to the
5 Zagreb materials that you've just mentioned, I wish to say that the
6 Prosecutor himself, during the disclosure procedure, disclosed that
7 document to me, that is to say, Cerkez's letter from the 22nd of April,
8 1993 and also Cerkez's order releasing prisoners, because that comprises
9 an entire entity of its own. I thought that it was necessary to introduce
10 this letter, dated the 22nd of April, because it is only then that we have
11 a whole, so to speak.
12 I just think that I need to mention that six translations were
13 missing when we originally handed in our materials and we provided them
14 yesterday. We acted as fast as possible. Unfortunately, we were not in a
15 position to do anything before that. There is no need for me to elaborate
16 on any other matters unless somebody has questions for me.
17 JUDGE MAY: Thank you.
18 Mr. Sayers, is there anything you want to say about any of this?
19 MR. SAYERS: No, Your Honour.
20 JUDGE MAY: Mr. Lopez-Terres, I think you were just coming into
21 court when I said that it seemed right that the same rules should apply to
22 the Cerkez Defence as applied to the Prosecution and the Kordic Defence as
23 far as the additional evidence was concerned and, therefore, exclusion was
24 limited to matters such as translations and illegibility.
25 As far as the Zagreb materials are concerned, as I said, you say
1 that there's one other document which you say fits into the series.
2 MR. LOPEZ-TERRES: [Interpretation] Thank you, Mr. President. I do
3 apologise for not having come earlier. As for the Zagreb documents, I,
4 indeed, think that it is important for the Trial Chamber to understand
5 exactly the series of the 22nd of April. There are three documents in
6 this series. Therefore, it seemed necessary to us for the Trial Chamber
7 to admit all these documents together. It's the Cerkez's letter to
8 Blaskic, Blaskic's letter to Kordic and, finally, the document written by
10 As for the document that is being considered as an additional
11 document, we have some comments related to the list provided by
12 Mr. Kovacic. It seems that a large number of documents have already been
13 admitted as Prosecution exhibits. There is even a document that the
14 Defence has already submitted and that was accepted. Therefore, I think
15 that this is simply a mistake, the fact that it is being required today.
16 JUDGE MAY: Have you a list --
17 MR. LOPEZ-TERRES: [Interpretation] Mr. President, if you wish, I
18 have a table of these documents. We have a list that was prepared and
19 that is based on the request put forth by the Defence. It also includes
20 our comments and it says here which documents were already admitted and,
21 therefore, there is no need to have them readmitted, so to speak.
22 Also, we have our own comments, namely that it seems that a large
23 number of these documents have been in the possession of the Defence since
24 1999. They had at least partial access to the Zagreb archives when we,
25 ourselves, did not have access to these archives at all.
1 JUDGE MAY: Mr. Lopez-Terres, at this time, we're dealing with the
2 additional exhibits, and what's happened in this case is at the end of the
3 parties' case, additional exhibits have been submitted, and you will
4 remember the Prosecution did that.
5 MR. LOPEZ-TERRES: [Interpretation] Absolutely.
6 JUDGE MAY: Whether it's in their possession or not is not a
7 material matter. Could we have your table, if you have it, please?
8 MR. LOPEZ-TERRES: [Interpretation] Of course, Mr. President.
9 There is just one point I wish to make in addition to that. This
10 is a document for which there is no translation. This is was supposed to
11 be done by the Defence; however, we received this translation yesterday
12 and we came to the conclusion that the Defence already submitted a
13 document, that is D70/2 it has been admitted. This is the table, and I
14 shall have copies of the table distributed straight away too.
15 JUDGE MAY: Have you a copy for the Defence, Mr. Lopez-Terres?
16 MR. LOPEZ-TERRES: [Interpretation] The Defence will receive this
17 document immediately. We have not received it from our staff yet, and I
18 do apologise for this delay.
19 JUDGE MAY: It would seem sensible to put this aspect of the case
20 back to allow the Defence to have some time for it. If documents have
21 already been admitted, then there's no point in readmitting them.
22 Mr. Kovacic, have a look at what the Prosecution have produced, if
23 you can, this morning, and we'll come back to these issues.
24 MR. LOPEZ-TERRES: [Interpretation] Thank you, Mr. President.
25 MR. KOVACIC: [Interpretation] Of course, Mr. President, I did
1 expect the Office of the Prosecutor to submit this to me earlier. I even
2 gave it to them in electronic form but, unfortunately, this has just not
3 been the case. Just for the sake of the transcript, I wish to say one
4 thing the Prosecutor says that the Defence, in their opinion, had access
5 to the Zagreb archives. We state this quite clearly that in 1999 there
6 were no Zagreb archives whatsoever; this is a result of our own
7 investigation in Bosnia on the ground. A large number of documents that
8 we introduced from day one actually are the result of these investigations
9 in Bosnia in 1998 and 1999.
10 Individuals, for one reason or the other, had copies of certain
11 documents. As for the Zagreb archives, we got access to them after the
12 Prosecutor did.
13 JUDGE MAY: Very well, thank you. I'll hand this down to the
14 legal officer.
15 [Trial Chamber and legal officer confer]
16 JUDGE MAY: We'll move on from there to the Prosecution
17 documents. This is described as rebuttal documents. Again, we have a
18 schedule of those documents.
19 MR. SCOTT: Yes, Your Honour. May it please the Court. I also
20 have an additional handout, basically a skeleton with a couple of
21 attachments which may facilitate the most efficient presentation of this.
22 May it please the Court.
23 JUDGE MAY: Just one moment.
24 MR. SCOTT: Yes, of course.
25 [Trial Chamber and legal officer confer]
1 JUDGE MAY: Yes.
2 MR. SCOTT: May it please the Court. Your Honour, the Prosecution
3 has tendered actually the number is now, in a sense, in some sense 35,
4 because one of the documents that we were going to deal with that you will
5 see in points 7 and 8 as an addition to our rebuttal list is a document
6 which the Chamber has already now dealt with in the context of the Cerkez
7 documents. That is the one document, if you will, that was, as I've said,
8 here in my outline. We had the -- before that document was apparently
9 admitted by the Chamber just now, we had a situation where we essentially
10 had the bookends. We had the two end documents on each side, but we
11 didn't have the book in the middle.
12 THE INTERPRETER: Will you slow down, Mr. Scott.
13 MR. SCOTT: ... that Blaskic had gone to Kordic for Kordic's
14 views, but that's been resolved now.
15 That leaves us, Your Honour, with 35 exhibits that have been
16 tendered. In further reviews over the past couple of days, it appears
17 that at least 15 have been admitted by comparison to the Defence's
18 information, the Registry's information, and our information. In fact, as
19 I mention here, there may have been --
20 THE INTERPRETER: Could the counsel slow down, please.
21 JUDGE MAY: You're being asked to slow down, Mr. Scott.
22 MR. SCOTT: I'm sorry, Your Honour. My apologies.
23 JUDGE MAY: Just take it slowly.
24 MR. SCOTT: I might also say that I owe the translation staff
25 apologies for some days ago when, in one of the earlier arguments in an
1 afternoon, apparently all of us were moving quite quickly, and my
3 As I was mentioning, Your Honours, there may be one or two, or
4 perhaps even more, additional documents already admitted that, in the
5 course of further discussion this morning, we may resolve, but there was
6 not complete agreement among the various records.
7 Let me respond quickly to a procedural point raised by the Kordic
8 Defence that some of the documents were not within the Court's deadline.
9 It's our position that they were, Your Honours. Every document that we've
10 listed and tendered to the Chamber now, or have tendered to the Chamber,
11 is, in fact -- has, in fact, been listed and disclosed.
12 I've just attached, simply to facilitate moving through this as
13 quickly as possible, a filing that we made on the 13th of October, which
14 is the second page of my handout where basically we just excerpted
15 paragraph 10 of that, and we understood there to be a deadline of October
16 30. We made a preliminary listing earlier than that. The next document
17 shows that on the 30th of October -- the 30 October deadline for various
18 documents, and as the attachment will show, there was a further
19 supplementation of that. Something like five or six documents were
20 added. The point being, at the end of the day, Your Honours, it's our
21 position that, in fact, all the documents that we've tendered have
22 satisfied all the Chamber's deadlines.
23 The only document that we had, in fact - which we admitted
24 openly - had, in fact, offered after the deadline was the one document
25 which the Chamber has now already dealt with.
1 That leaves us, then, Your Honour, with 20 exhibits which we can
2 go through and handle. Where the Chamber would wish, we could go through
3 and I could identify which of the 15 by all of us, by the Registry's
4 record, by the Defence and Prosecution records, which ones are already
5 admitted if that's one way to proceed.
6 JUDGE MAY: Let us begin by doing that and seeing what remains
7 after all.
8 MR. SCOTT: Yes, Your Honour.
9 Your Honour, Exhibit 97, Z97, is admitted; Exhibit 367 has --
10 JUDGE MAY: Exhibit 141 was admitted yesterday.
11 MR. SCOTT: All right. Well, that takes care of that one. I'll
12 just mark -- also change my list, Your Honour, as we go. Exhibit 141,
13 then, has been admitted.
14 I think what I'll do, Your Honour, if it's acceptable to the
15 Chamber, is mention the ones as we go which -- there's some that might be
16 admitted. For instance, 171.2 and 178.1, apparently, the Defence thinks
17 that they've already been admitted.
18 JUDGE MAY: Well, this is simple. If the Registry says it's
19 admitted, it's admitted.
20 MR. SCOTT: All right.
21 JUDGE MAY: If the Registry doesn't say it's admitted, it's not
23 MR. SCOTT: Very well. Let me go back, then, to my original plan,
24 corrected, as the Chamber did, on 141.1.
25 The next one where there appears to be no dispute on being
1 admitted now is 367, 369, 394.1, 571.3, 595, 595.1, 595.2. The next
2 document, Your Honour, was not properly listed. It was actually an
3 attachment as part of 595.1. There is no separate Exhibit 595.2.
4 Exhibit 603 was admitted; 601 was admitted; 609, 636, 714, 972,
5 1039.1, and 1335.2; based on further checking, Your Honours, those,
6 further to our records and checks, were admitted.
7 JUDGE MAY: I don't have a 1335.2. 1356.2 was already admitted,
8 apparently. 1289.3 is already admitted.
9 MR. SCOTT: All right.
10 JUDGE MAY: So that leaves, as you say, about 15 --
11 MR. SCOTT: That leaves something less than 15, actually -- I'm
12 sorry, something less than 20.
13 Your Honour, we've also withdrawn a number of others of those --
14 we've tried to eliminate a few more in the last few days, which I think
15 the chart notes in places "withdrawn."
16 The first document not previously admitted and still outstanding,
17 then, is 151.1, which we propose, again, for the purposes of the proper
18 characterisation, in fact, of Herceg-Bosna and what it was. There's been
19 continuing Defence positions throughout the Kordic Defence case of various
20 characterisations of Herceg-Bosna as something other than a state or other
21 than functioning as -- having functions and characteristics of a state.
22 This document is further confirmation in response to the Defence positions
23 of what it was. It was a united form of organisation --
24 JUDGE MAY: Well, we can read that.
25 MR. SCOTT: The next document was withdrawn, 161.1. The next one
1 outstanding, Your Honour, is 169.1. This was a document, as you can read
2 here, and I'm --
3 JUDGE MAY: Just give us in a sentence, what it is.
4 MR. SCOTT: In a sentence, Your Honour, the Defence case has
5 raised issues concerning the Constitutional Court -- I can summarise the
6 next couple of exhibits, Your Honour. The next series of exhibits,
7 there's a few here, that all go to this point: As the Chamber now knows,
8 there was a decision by the Constitutional Court of Bosnia-Herzegovina
9 which invalidated the declaration of the creation of the Croatian
10 Community of Herceg-Bosna, and then subsequently there were similar court
11 decisions about the Croatian Republic of Herceg-Bosna. The Defence took
12 various positions through its case that this was not a valid decision,
13 that there were procedural faults --
14 JUDGE MAY: This is to support the decision, is it?
15 MR. SCOTT: That's correct. That's 169.1, 169.2, 171.2, 178.1,
17 JUDGE MAY: Yes.
18 MR. SCOTT: It all goes to that, Your Honour.
19 JUDGE MAY: Now, the next one --
20 MR. SCOTT: The next one -- I'm sorry.
21 JUDGE MAY: -- is 393.1.
22 MR. SCOTT: Let me just look. I think you're right. 393.1, Your
23 Honour, there has also been dispute throughout the Defence case as to the
24 events in Central Bosnia in two respsects; one, what was and constitutes
25 Central Bosnia, because there seems to be no agreement on that; secondly,
1 the exact nature of the events in January 1993 and who started what.
2 This document suggests that, in fact, Gornji Vakuf was clearly
3 considered part of Central Bosnia; the events there were clearly relevant
4 to what was happening in January of 1993 and what was happening, in
5 fact -- that the HVO side began that offensive or aggression, consistent
6 with, as the Prosecution will say, ultimata which were issued by the HVO
7 side in early to mid-January. That's our position on 393.
8 JUDGE MAY: Yes.
9 MR. SCOTT: The same, Your Honour, as to -- 421.2, to be clear,
10 was not, in fact, proffered or was withdrawn. 449.1 is the same similar
11 issue, Your Honour, as I just discussed. Same issue. The next one is --
12 JUDGE MAY: 639.1.
13 MR. SCOTT: Yes, Your Honour.
14 JUDGE MAY: I have a note that it's suggested this has already
15 been excluded.
16 MR. SCOTT: That -- I think Your Honour is moving more quickly
17 than me this morning. I apologise. That's correct, Your Honour. It was
18 excluded at a prior time, but we believe that it is proper rebuttal
19 evidence in response to the Defence's continuing issues raised in the
20 Defence case. So it's true but, in our view, nonetheless, proper
22 The next one then would be, I believe, 723.1.
23 JUDGE MAY: Yes.
24 MR. SCOTT: The objection here is, apparently, to the effect that
25 this was a -- as the Chamber knows with some of our witnesses, bundles of
1 documents have been prepared in anticipation, and in the reality of
2 things, not all documents would in fact be used for whatever reason, time
3 constraints or what have you. The Defence takes the position that because
4 this one document was part of an earlier bundle but not used, that somehow
5 that's some sort of a waiver.
6 We believe that it is proper rebuttal, again, on the issue of the
7 respective positions of the parties in April of 1993 that, in fact,
8 confirms the Prosecution position and rebuts the Defence position about
9 who started what and the true nature of this conflict that, in fact, it
10 was part of an overall Bosnian Croat plan to enforce its views of the
11 Vance-Owen Peace Plan. I'll just leave it at that.
12 The Chamber's already dealt with 780.2. 815.1 was withdrawn. I
13 think the next one is 1136.2. I'll just suffice it to say, Your Honour,
14 that the Chamber's heard this in the context of the Zagreb documents, this
15 is primarily tendered in rebuttal to positions taken about the
16 relationships in association with the Bosnian Croats and Bosnian Serbs in
17 Central Bosnia. A clear report by ECMM would talk about the close
18 cooperation between the two groups in mid-1993. I'll leave it at that.
19 The 1139.4 was a document releasing a witness -- excuse me, a
20 detainee, Usonovic, from Kaonik saying -- stating that he was being
21 released with Mr. Kordic's consent. The Defence objection there is that
22 we had proposed to call this person as a witness and he was not one of the
23 witnesses allowed. That's absolutely right, Your Honour. No -- nothing
24 underhanded intended, but our position was the document speaks for itself
25 without a witness and is proper rebuttal.
1 Exhibit 1146.5, again, goes to Bosnian Croats -- my apology, Serb
2 collusion in Central Bosnia and adds additional positions on that and also
3 talks about the fact that the true managers of the conflict were in Zagreb
4 and Belgrade respectively.
5 Exhibit 1288.8 connects to the events in Vares, and it has been
6 the Prosecution view and, of course, denied by the Defence that part of
7 what was happening, indeed, most of what was happening in Vares and Stupni
8 Do in the fall of 1993 was essentially what the Chamber may recall as
9 reverse cleansing or self-cleansing when it was our view that it was part
10 of the Croat plan to move Croat population out of areas that could no
11 longer be admitted -- excuse me, defended or hard for them to continue to
12 have -- to claim as part of the Croat territories under the various peace
13 plans being proposed and therefore it was in their interest to increase
14 the majority, Croat majority in other areas by moving Croat population
15 from Vares, in this instance in the Vares area. That document goes to
17 The next one is 1393.3. I might just say if I can -- the next
18 three: 1393.3, 1473.13, 1473.14 all are simply legislation. They are
19 sill simply parts of the Narodni List statutes related, again, to
20 primarily legal matters. 1393.3, again, being specifically the decision
21 invalidating or declaring illegal the Croatian Republic of Herceg-Bosna.
22 Again, I emphasise it's not cumulative or repetitious of the decision
23 concerning the Croatian Community of Herceg-Bosna. This was a subsequent
24 decision on the Republic of Herceg-Bosna and the findings of the
25 Constitutional Court on that. Again, the other two final documents are
1 simply copies of legislation.
2 We withdrew, we've already withdrawn 2838. Thank you.
3 JUDGE MAY: Mr. Sayers, we've got your document setting the
4 objections out. Unless there's anything you want to add to it arising
5 from what's been said this morning.
6 MR. SAYERS: Just a few minutes, Mr. President. I'm not going to
7 repeat everything that's in our documents. They speak for themselves.
8 One point that I do want to emphasise though is that the Court instructed
9 the Prosecution to file a final rebuttal list on the 13th of November --
10 sorry, 13th of October. We received a list but the Prosecution stated in
11 that list that they had only listed some of their rebuttal exhibits.
12 Well, that's not what they were ordered to do. They were ordered to list
13 them all.
14 So we prepared two tables, and I think that it's pretty
15 self-explanatory. One is a set of objections and observations regarding
16 whether exhibits are already admitted or have been withdrawn as were
17 listed on the October 13th list, and then the second table states our
18 objections to the new exhibits that the Prosecution has tried to add after
19 October 13th.
20 JUDGE MAY: Let me see if I have the argument. As I understand
21 it, the Prosecution are saying that they did, in fact, file all these
22 documents by the 30th of October.
23 Mr. Scott, have I understood that to be right?
24 MR. SCOTT: Absolutely, Your Honour. There may be some apparently
25 different views about various deadlines. We understood the deadline, the
1 final deadline. There were various submissions along the way, but the
2 deadline was the 30th of October. And that we complied with that.
3 JUDGE MAY: And you've provided here a copy, is this right,
4 described as a list of Prosecution rebuttal exhibits?
5 MR. SCOTT: Yes, Your Honour. And every document was on there
6 except for the one that Mr. Lopez-Terres dealt with.
7 JUDGE MAY: Yes. So you are saying that these were the documents
8 that were served on the 30th of October?
9 MR. SCOTT: Yes, Your Honour.
10 JUDGE MAY: And it includes all of these documents that you're now
11 relying on.
12 MR. SCOTT: Yes, Your Honour.
13 MR. SAYERS: There is a problem with that, Mr. President, if I
14 may. There are two sets of submissions which the Trial Chamber have
15 permitted the Prosecution to make, and what the Prosecution is trying to
16 do, very deftly, is to conflate those two. But there were two separate
17 deadlines that were imposed by the Trial Chamber. The first was October
18 13th where we were supposed to receive a list of witnesses to be called in
19 rebuttal and the exhibits to be listed in rebuttal, and we did receive a
20 list of witnesses and a list of exhibits on the 13th of October.
21 The second deadline that the Trial Chamber imposed, already been
22 the subject of quite considerable litigation, was the deadline for Zagreb
23 materials exhibits. The Court may even recall that we asked for all
24 exhibits, including the Zagreb materials exhibits, to be delivered to us
25 on the 30th, and the Trial Chamber said that it was not going to vary its
1 earlier orders. So you permitted two sets of deliveries. One rebuttal
2 exhibits on the 13th, and the second Zagreb materials exhibits on the
4 What the Prosecution is trying to do is slide in a lot of
5 exhibits, denominated rebuttal exhibits, that were actually delivered
6 beyond the deadline that was imposed by the Trial Chamber. That's what
7 happened, and that's why we've prepared two tables. One for the original
8 list that was delivered as ordered, and one for the other exhibits that
9 were delivered out of time. I might add, no application is made or was
10 made for delivery of those exhibits out of time.
11 Now, I just want to draw the Trial Chamber's attention to a few of
12 these exhibits. I won't go through them all. The exhibit Z169.1 and
13 Z169.2, these are two letters from the president of the Constitutional
14 Court, Ismet Vasic, to the HDZ-BiH, the political party, not to the HZ HB,
15 the actual party involved in the litigation. The Court has already
16 observed that calling this witness would be reinforcing, in other words,
17 simply reinforcing the Prosecution's case in chief and not proper for
18 rebuttal. And our position is that any -- if the witness can't testify
19 because he would be reinforcing, then certainly any documents that he
20 authored would be similarly reinforcing.
21 And I might say that the same objection goes for exhibit Z1139.4,
22 but this is subject to two other objections. First, the Trial Chamber
23 will recall in our opening statement we told the Bench that we were not
24 going to be introducing any Kaonik evidence and we didn't. And yet here's
25 Kaonik evidence that pops up by way of rebuttal. Well, it's not
1 rebuttal. Also, there are some problems with the document. There's no
2 stamp, and we contest the authenticity of the signature.
3 That, I think, concludes what I have to say. Our specific
4 objections are listed in the two tables that we provided to the Court last
6 JUDGE MAY: So that I get the argument about the deadlines, you
7 are saying that the order was rebuttal material, including witnesses and
8 exhibits by the 13th of October.
9 MR. SAYERS: Yes.
10 JUDGE MAY: Of course we can check this.
11 MR. SAYERS: Of course.
12 JUDGE MAY: Zagreb material, the 30th of October.
13 MR. SAYERS: Yes.
14 JUDGE MAY: And what you're saying is that the Prosecution are
15 using the Zagreb order in order to get rebuttal evidence in.
16 MR. SAYERS: Right. And I might say that we did receive a list of
17 rebuttal exhibits on the 13th as ordered. But we received another list
18 which we thought was the Zagreb materials on the 30th and then we received
19 another revised package last Friday, on December 1st, and it's only become
20 apparent to me as we've been having these arguments that many of the
21 documents that were in the Zagreb materials submission are now
22 incorporated into the December 1st submission.
23 We tried as promptly as we could to prepare tables containing our
24 objections to both of them showing what's in, what's out, what has been
25 objected to as being provided out of time, and those have been filed in
1 Court yesterday but delivered to the Prosecution on Saturday.
2 JUDGE MAY: So we have your note of the 30th of October material.
3 Not all this is 30th of October material, some of it's earlier; is that
5 MR. SAYERS: That's right. Some of it was delivered on the 13th
6 as ordered, some of it wasn't and that's why we prepared two tables.
7 Thank you.
8 [Trial Chamber confers]
9 JUDGE MAY: Mr. Scott, the argument, and we'll hear your
10 submissions about it, appears to be this: There is a distinction between
11 the rebuttal and the Zagreb material. The rebuttal was ordered, we are
12 told, by the 13th. We will have to look back because we don't have our
13 orders in front of us. But we are told that that was ordered by the
14 13th. The Zagreb material was ordered by the 30th and we have already
15 ruled on the Zagreb material.
16 You are now asking us to rule on other material much of which was
17 not introduced by the deadline it's said on the 13th of October.
18 Therefore, say the Defence, it should not be admitted now. It is beyond
19 the deadline. It's also -- it may be being submitted, I don't know
20 whether this is the case or not, that some of this material we've already
21 ruled on, but I may not be right about that when we ruled on the Zagreb
23 Anyway, Mr. Scott, it's for you to deal with that.
24 MR. SCOTT: Thank you, Your Honour. Your Honour, I will submit
25 that there has to come a time when some of the personal remarks and
1 personal hyperbole has to stop or has least be toned down. The accusation
2 is that the Prosecution has deliberately, there's no other way to
3 characterise counsel's remarks, that we have deliberately manipulated
4 deadlines or tried to be underhanded in the submission of these
5 documents. I categorically, on behalf of the entire team, I'm sure, deny
6 that. We've been entirely --
7 JUDGE MAY: You needn't trouble about the personal comments. It's
8 just the facts we want to know.
9 MR. SCOTT: Let me address those then, Your Honour.
10 JUDGE BENNOUNA: [Interpretation] Mr. Scott, could you please
11 confine yourself, because we are not going to spend much time on this,
12 could you confine yourself to specific documents. They are documents
13 which have been admitted and the rulings of the Chamber regarding Zagreb
14 documents. They are witnesses who came in rebuttal, and you say that in
15 regard to these witnesses you have some documents. But you have to tell
16 us whether these are the documents which are not part of the Zagreb
17 documents and if they have to do with those witnesses.
18 Please be as clear as possible, and we should not go back to a
19 discussion which we already had, which is finished.
20 MR. SCOTT: Let me answer -- finally answer both the President's
21 question and your question, Judge Bennouna.
22 Our position is - we've been, I think, very transparent about this
23 in our filings all along, and that's why I've attached them in the handout
24 that I've given to the Chamber this morning - that there were some
25 submissions made and if we were incorrect, it is one thing to say we were
1 incorrect, but that's different than saying that there's been some sleight
2 of hand attempted. We've been --
3 JUDGE MAY: The Chamber has not suggested any sleight of hand.
4 Now, it doesn't matter what anybody else says. We want now the facts. We
5 want to understand what your submissions are. Don't bother about what
6 anybody else says, please.
7 MR. SCOTT: All right, Your Honour. I'll go away from the timing
8 question, then, to -- if I understand the Chamber's remaining questions.
9 These are not -- it's a mischaracterisation to say that there has
10 been some importation, if you will, of Zagreb material. The only Zagreb
11 document that was admitted that, again, we were completely transparent
12 about was 780.2, and the Chamber has resolved that this morning. We do
13 not take the position, and we disagree with counsel, that the other
14 documents that we've tendered and provided have been brought in after the
15 Zagreb rulings by the Chamber. In fact, they couldn't have been because
16 we listed them on the 30th of October, before any ruling on the Zagreb
17 evidence, and they're already listed.
18 JUDGE MAY: Right. It's now submitted that you should have had
19 them in on the 13th of October.
20 MR. SCOTT: And our position, Your Honour, is -- I keep trying to
21 answer that but apparently I'm not doing a very good job. It's our
22 position, our understanding, Your Honour, that there were some submissions
23 that were due as kind of progress reports. There are a series of
24 submissions through the fall, starting at least on the 1st of September,
25 various advance notices of the Prosecution rebuttal case and other
1 evidence outstanding. It was our position -- the Chamber may rule that we
2 were incorrect, but it was our understanding that there were some
3 additional submissions due on the 13th, with final submissions due on the
4 30th of October, that included not only the Zagreb listing but also the
5 final submissions on the rebuttal case.
6 That is our understanding as the team. If we are incorrect, then
7 we will be corrected, but that has been our position all along. It was
8 stated in our papers. We didn't -- Mr. Sayers says we didn't make an
9 application to put matters -- to submit matters out of time. We didn't
10 believe they were out of time, Your Honour. We did not perceive any
11 reason to make an application because we believed we were in full
12 compliance with the Chamber's deadline.
13 Again, as we stated --
14 JUDGE ROBINSON: Mr. Scott, one of the points made by Mr. Sayers,
15 as I understand it, is that some of the documents submitted by the 30th
16 are exhibits which attach to rebuttal witnesses --
17 MR. SCOTT: Yes.
18 JUDGE ROBINSON: -- and which, therefore, should properly have
19 been submitted by the 13th.
20 MR. SCOTT: And I believe they were, Your Honour. We've again
21 been, I think, clear -- I think in my comments a moment ago, I readily
22 admitted that, for instance, as an example -- I'll find my list again,
23 Your Honour. One example was the release of the detainee -- it was
24 1139.4. Absolutely correct. It related to a rebuttal witness that --
25 it's not Zagreb evidence. It related to a rebuttal witness, and the
1 Court, absolutely, no dispute, rejected the witness. We were aboveboard
2 in simply suggesting that the document speaks for itself, and the document
3 itself is still appropriate rebuttal evidence.
4 JUDGE MAY: We must check on the previous rulings to see if there
5 is any doubt about them.
6 MR. SCOTT: Yes, I understand.
7 JUDGE MAY: And unless you've got anything else to add.
8 Mr. Sayers, you've already had one go.
9 MR. SAYERS: I just wanted to refer the Trial Chamber to its
10 ruling at page 25940, on October the 4th of this year.
11 JUDGE MAY: Thank you. Well, we'll check on that and we'll rule
12 in due course.
13 Now, we come next to the Kordic rejoinder and Zagreb material
14 exhibits, and in this connection, we have the following documents: We've
15 got a revised list of Zagreb materials and rejoinder exhibits, we've got
16 the rejoinder notice of the 24th of November, and we've got a Prosecution
17 response of the 29th of November. It may be convenient at the same time
18 to deal with any submissions about rejoinder witnesses.
19 Mr. Sayers, so we've got the position clear, you mentioned
20 something yesterday, the rejoinder witnesses whom you propose to call,
21 could you remind us, please, who they are.
22 MR. SAYERS: Yes. The first one is Zoran Maric; summary provided;
23 estimate of time: Five minutes. The second is Jozo Sekic, former HVO
24 president of Novi Travnik municipality; summary provided; estimate of
25 time: Five minutes. We had hoped to produce Brigadier Nakic, but we have
1 not been able to get in touch with him so we can't call him. Our third
2 witness is --
3 JUDGE MAY: A confidential witness.
4 MR. SAYERS: -- has been identified in our papers previously
5 filed. Estimate of time: One day.
6 JUDGE MAY: The rebuttal of those three witnesses, yes, I think
7 you've dealt with that in your paper.
8 MR. SAYERS: Yes.
9 JUDGE MAY: So you should be finished, if we start tomorrow
10 morning, you will finish, presumably, Thursday morning, something in that
12 MR. SAYERS: Right.
13 JUDGE MAY: When you say a day, is that in chief?
14 MR. SAYERS: No. That's including -- I had actually assumed that
15 this is a fairly significant witness who would be subject to quite a bit
16 of cross-examination, and we were planning that his testimony should be
17 concluded by the close of business on Thursday. I've previously cleared
18 with Mr. Kovacic that he has, I believe, two rejoinder witnesses of his
19 own, and he thinks that they will be very short and we can get through
20 with them by close of business -- normal close of business on Friday,
21 i.e., by lunchtime.
22 JUDGE MAY: Normal close of business for this case.
23 MR. SAYERS: Yes.
24 JUDGE MAY: Right. Is there anything more you want to say before
25 we hear the objections to the material?
1 MR. SAYERS: No, thank you.
2 MR. NICE: Can I deal with one of the witnesses, and then perhaps
3 we can go into private session and Mr. Scott can deal with the
4 confidential witness.
5 As to the first witness, Zoran Maric, there is an interesting
6 history of which the Chamber will want to be aware before it decides that
7 it is proper for him to give evidence as a rebuttal witness and when, if
8 it does so decide, it considers the scope of cross-examination.
9 The Chamber will probably recall that on several occasions
10 witnesses were called by the Defence, really, to put on either the whole
11 of or very substantial parts of the Kordic case, and on every occasion,
12 the Prosecution dealt with the witnesses very briefly in
13 cross-examination, normally because there was a deadline -- a timetable
14 deadline that everybody wanted us to keep or for some other reason.
15 With this particular witness, as with several others of these
16 large witnesses, there was a time deadline. It was a Friday. Your Honour
17 wasn't sitting; Your Honour's two colleagues, Their Honours Judge Bennouna
18 and Judge Robinson were sitting alone on this day. There was pressure to
19 finish him on the Friday, which we did.
20 On the Monday, I observed, Your Honour having returned, that there
21 had been pressure - I wasn't objecting to that in any sense - but I
22 certainly observed, because I thought it was important to do so, the
23 substantial chunks of evidence that simply hadn't been capable of being
24 cross-examined to. It's on the record for the 5th of June. Indeed, I
25 simply wasn't able to cover with this witness, both as to substance and as
1 to credibility, a large range of topics, including, as I set out, the
2 entire second half of 1992, affidavits in support, his account for the
3 start of the war, or what he'd said about Mr. Hadzimejlic, and those were
4 only some of the topics that it wasn't possible to deal with.
5 The Court will recall that this same witness featured next in the
6 Zagreb document - it's been the subject of argument and has now been
7 excluded - that related to and contained reports by four municipality
8 presidents, he being one of those said to have been reporting within the
9 document or said to have been reported by the makers of the document. The
10 Court will remember that that document caused the Prosecution concern
11 because they both wanted to serve it but they needed to make inquiries
12 about it.
13 Our concerns, as it subsequently emerged, I think, when Mr. Sayers
14 said he actually had the document for a month or so, were, to some degree,
15 misplaced; nevertheless, those were our concerns. The Chamber will recall
16 that at the time of our formal service of this document on the Defence, we
17 arranged ex parte to cover a day or so some immunity from knowledge of
18 this document so far as Mr. Maric was concerned, and we did that because
19 it occurred to us as highly possible that the Chamber might want him to be
20 recalled by the Chamber so that he could be cross-examined on the content
21 of that document.
22 The ruling of the Court whereby he was not to be told of this
23 document lasted for a period of time, and then the Defence asked for it to
24 be lifted, and the Chamber, I think without calling on any argument, made
25 the decision that it didn't wish to call the witness itself and lifted the
1 ban on communication. Since then, the document of the four presidents was
2 ruled on -- four municipality presidents was ruled on without the Chamber
3 having any knowledge at that stage that it was the intention of the
4 Prosecution to recall this witness. So that's the complex history for
5 this particular witness.
6 If he comes back simply to be dealt with in relation to one very
7 small piece of rebuttal evidence; namely, a meeting about which there is
8 some evidence, and I won't go into that in detail for the usual reasons, a
9 meeting on the 15th, then, first of all, it will be simply to take further
10 the unsatisfactory position of a witness being dealt with only for part of
11 the totality of the evidence upon which he could be explored in
12 cross-examination, and the Chamber may think that that is not
13 satisfactory. If he is to come back, it may be that he should, indeed, be
14 subject to broader cross-examination, including, of course,
15 cross-examination on that document. For had things been ordered
16 differently, there could have been no objection to his being
17 cross-examined on that document, as, indeed, other witnesses have been
18 cross-examined on documents said to be contemporaneous for their opinions,
19 or for their evidence on the documents.
20 Of course, it would have been desirable for him to have been
21 confronted with that document without the opportunity to be prepared by
22 Defence in respect of it, but in the way things have fallen out, that
23 hasn't been possible. So that's our concern about that particular
25 Your Honour, the two resolutions may be, one, that the Chamber
1 will say that in all the circumstances he shouldn't be called as a
2 rebuttal witness and his limited evidence, so far limited because
3 cross-examination could not be complete in the time, is where the position
4 will end; alternatively, if he comes back, it must be on the clear
5 understanding that he may be subject to more extensive cross-examination.
6 JUDGE MAY: I mean, are you asking us to exclude his evidence?
7 MR. NICE: No, Your Honour. Whether he should be admitted is a
8 matter for the Chamber.
9 JUDGE MAY: Yes.
10 MR. NICE: So, first of all, I'm laying the history before you.
11 Insofar as his evidence would deal with a matter arising in evidence we've
12 recently heard that was otherwise not forecast, then prima facie he is a
13 rejoinder witness. I accept that, of course. But it still remains a
14 matter for the Trial Chamber's overall discretion what evidence it allows
15 in, and in light of what I've said, the Chamber may be very concerned
16 about having, as it were, two little bits from a witness when, in reality,
17 it ought to have the whole of the witness. So that's --
18 JUDGE MAY: That will be a matter for us to consider when we've
19 heard what evidence he's called to give.
20 MR. NICE: Perhaps we can go into private session because it will
21 be safer, and then I can also then deal with the next witness that I know
22 Mr. Scott is going to deal with. If we can have a very short private
23 session, I can be explicit without causing any problems.
24 [Private session]
13 Pages 27913 to 27924 redacted – in private session.
4 [Open session]
5 JUDGE MAY: The matter we have to deal with next is the Kordic
6 rebuttal documents. Yes. We now have the documents and we have a revised
7 list of Zagreb materials. Is there anything you want to say before we
8 hear any objections?
9 MR. SAYERS: Not really, Mr. President. We had originally listed
10 159 documents. We have withdrawn 46. Just for the Court's information,
11 three of these documents will be authenticated probably through Mr. Maric
12 tomorrow. There are 42 documents that will be authenticated by our
13 confidential, currently confidential witness. I think, just by steady
14 reference to the list that we've provided to the Prosecution and to the
15 Trial Chamber, many of these are in series.
16 You have, for example, items 2 through 7, combat orders issued by
17 the commander of the Central Bosnia Operative Zone regarding Jajce tending
18 to rebut the contention that the front lines there had been abandoned by
19 the HVO.
20 Item number 9 deals with a 1 million Deutschemark guaranteed loan
21 to the HZ HB guaranteed by the deputy president of Bosnia-Herzegovina,
22 Hakija Turajlic in October of 1992, a month after the Constitutional Court
23 decision tending to illustrate how seriously that decision was treated by
24 the government itself.
25 We have a variety of other orders, not all of the orders issued by
1 Colonel Blaskic, I hasten to add to the Trial Chamber. There are many,
2 many hundreds more orders than the ones we've selected here, but the ones
3 that we've selected give a good -- they sort of round out, as it were, the
4 orders that we've already filed and show the competence of the commander
5 of the Central Bosnia Operative Zone in doing things such as ordering the
6 prison to be formed, appointing brigade commanders, and so forth.
7 Just dealing, very broadly, with these exhibits, another category
8 of exhibits are the ones that begin to appear on page 9. Many of these
9 deal with the municipality of Vares, and I am bound to observe that,
10 depending upon the Court's ruling regarding AO, many of these will be
11 rendered redundant. If the Court keeps the testimony of Witness AO in the
12 record, then many of these exhibits bear on issues which were addressed by
13 that witness.
14 JUDGE MAY: Is it not going to be better to try and deal with this
15 at a later stage? If 42 of the documents are coming in or 45 anyway, we
16 have to make a ruling on Witness AO. The practicalities are that it may
17 be easier to deal with this later rather than now.
18 MR. SAYERS: I entirely agree.
19 JUDGE MAY: We'll deal with those that are left over after we've
20 heard all the evidence. We'll put that matter back then which brings us
21 to the evidence matters, two in particular: Witness AO and the
23 We begin with Witness AO. We have the renewed motion to strike.
24 We do not have a response. Perhaps the best course would be to hear the
25 Prosecution and then we'll hear you in response, Mr. Sayers.
1 MR. NICE: Your Honour, in relation to that witness, I explained
2 at an earlier stage that as between the choices of burdening the Chamber
3 with more printed material or with an oral argument. I was minded to go
4 for an oral argument. Although time has passed since then, I've stuck to
5 that position.
6 In our submission, the immediate reaction of Your Honour, speaking
7 entirely for yourself, of course, that the matter should probably remain
8 for final argument is the appropriate one. The position, historically, is
9 as follows, apart from what you've seen in the Defence motion about
10 disclosure. One observation to make about that, it should be borne in
11 mind that the Prosecution has always taken its duties seriously all too
12 easily, it could have been the case that it could have chosen to overlook
13 further lines of inquiry that occurred to it when, for example,
14 Mr. Naumovski asked certain questions of statements that the witness had
15 made. We didn't do that. We've always been extremely conscientious even
16 when it creates, as it were, embarrassing problems like this. So there
17 can be no doubt about the conscientiousness of which we approach these
19 AO left the Chamber having been cross-examined and as I recall, as
20 I think I've informed the Chamber before, he was upset for I think two
21 reasons. One, in fact, his name had been used in the course of
22 cross-examination. It didn't, of course, come as a name to us on our
23 screens because the writers always filter out names where a pseudonym has
24 been given, and the Chamber may recall that I established with the
25 newspapers and other media representatives that the name didn't leak out,
1 in fact, publicly, so far as we know, beyond this building.
2 Indeed, I was slightly taken to task by one of the journalists for
3 saying that it was fortunate that that happened. They said it wasn't
4 fortunate, they said it was because they did their job properly, and I
5 stood suitably upbraided. But nevertheless, AO's name was mentioned.
6 That was one of his reasons for, I think, disturbance and distress, and
7 the other one was, like so many other witnesses, when matters are joined
8 in the robust way that is appropriate to this system of being suggested
9 that they are not telling the truth, that they don't much like it,
10 wherever the truth lies.
11 He left, and we subsequently discovered these other matters that
12 had to be disclosed and of course were disclosed. The Court decided that
13 he should come back for cross-examination, and it was our duty to do what
14 we could to bring him here and we did everything possible. Ultimately, as
15 the Chamber knows, the mechanism for compulsion lies with the Tribunal's
16 officers, that is, the security officers in the field and, as far as I
17 know, they've done whatever they can. Although the process by which they
18 attempt to compel compulsion includes giving the people notice in advance
19 so that they are always to some degree forearmed or forewarned.
20 In any event, everything was done by those who had to do it and
21 then at the last minute, for the reasons I gave on the last occasion,
22 reasons apparently connected with or said to be connected with nonpayment
23 of some expenses, he declined to attend. But I explained that, of course,
24 that matter was always going to be resolved favorably to him if he was
25 prepared to go through the bureaucracy.
1 For whatever reason, then, he didn't respond and the Tribunal
2 hasn't taken, I think, any further steps to deal with him for that. This
3 Tribunal is different from domestic tribunals where, providing somebody
4 can be located, he can be brought physically to court in short order and
5 quickly. That doesn't happen here.
6 The Chamber will also have in mind, in relation to this particular
7 witness, that he is a Croat insider, to use the vernacular, and the
8 Chamber will recognise how difficult it is for such witnesses to make a
9 decision to cooperate and then to stick with it.
10 Within the last month, you've had three examples of witnesses who
11 were either initially highly cooperative or cooperative with the
12 Prosecution and who, as soon as either they thought about it, in the case
13 of one, it would appear, as his attitude changed; or, in the case of two
14 of them, when they were approached by Defence counsel or representatives,
15 their position changes.
16 The Chamber's also had the recent experience in closed session of
17 other types of pressure that can be brought to bear on Croat witnesses and
18 potential witnesses. The atmosphere in the territory which can't, of
19 course, be felt here, is a matter to be taken into consideration in all
20 other dealings with witnesses.
21 At the moment, it cannot be known what the real motivation for
22 Witness AO's nonattendance is. One thing the Chamber can be sure of is
23 that it doesn't relate to his having any knowledge of the matters about
24 which he was to be cross-examined.
25 The Chamber, I hope, will have noticed - I hope, indeed, that the
1 Defence will have noticed even if it surprised them - that when witnesses
2 are being brought back here, and I have in mind particularly Husic from
3 America who was brought back through no fault of the Prosecution but
4 because he hadn't been fully and properly cross-examined, he wasn't given
5 any notice of what it was he was being brought back for. That's our
6 complete and general policy: Nobody is informed so that the Defence can
7 have every opportunity of dealing with the witness afresh. Witness AO was
8 provided with absolutely no information as to why he was wanted back here
9 to give evidence. Accordingly, there may be no reason. It may be
10 cussedness. There may be bad reason, I suppose; there may be other reason
11 why he is here.
12 With that unresolved, in our respectful submission, the
13 appropriate course to take with this witness is to allow, of course, all
14 the materials that would have been put to him to go in and be available
15 for argument and to take whatever approach the Chamber thinks is
16 appropriate in those circumstances to his evidence, but for his evidence
17 to remain as evidence before the Tribunal. To do otherwise would be
18 wrong, in our respectful submission, he having given evidence and been
20 Indeed, the Chamber will recall that in his evidence and, indeed,
21 in one of the documents, I think, he makes it clear that he may have said
22 other things on other occasions that weren't true, but he took the solemn
23 declaration and gave the truth here.
24 For our part, I make it quite plain, we won't be placing
25 particularly heavy reliance on him and we will be approaching him with
1 caution ourselves. But on matters of background, in particular, we may
2 place more substantial reliance, we would wish to be able to refer to all
3 his evidence, and it would be wrong, in our respectful submission, for him
4 to be excised at this stage.
5 Unless I can help you further.
6 MR. SAYERS: Mr. President, the testimony of this witness should
7 be stricken for the reasons stated in our papers, and I have nothing to
8 add beyond the chronology and reasons stated in those papers.
9 JUDGE MAY: Thank you.
10 [Trial Chamber confers]
11 JUDGE ROBINSON: Mr. Sayers, I understand the substance of the
12 submissions that you have made, but I'm not sure that I quite understand
13 this business of striking something from the record. I think you may ask
14 that the evidence be disregarded totally or that no weight be attached to
15 it, but I don't quite understand why it should be stricken from the
17 MR. SAYERS: Your Honour, I confess to being a victim of the
18 phraseology of the practice in my national jurisdiction. The functional
19 equivalent of -- it really doesn't matter what it's called. We are asking
20 that the evidence be disregarded. Whether it's stricken from the record
21 or the Court merely says, as a result of the noncompliance with the
22 previous directives issued by the Court and the fact that the Prosecution
23 has had eight months to bring the witness here, whether it should be
24 disregarded in its entirety, I absolutely agree. The functional
25 equivalent is ...
1 THE INTERPRETER: Mr. Sayers, will you slow down, please.
2 MR. SAYERS: ... I apologise for using the phrase that's
3 particular to Virginia practice.
4 JUDGE ROBINSON: I think I understand that much better. Thank
6 JUDGE MAY: We'll turn to the audiotape. We've now had all the
7 evidence about that, and we've got a submission from counsel for
8 Mr. Kordic of today's date. It may be that we can look at it, or if you
9 would like to say something about it.
10 MR. SAYERS: I think, Mr. President, that our submission says
11 everything that needs to be said. It might be worth just reading it very
12 briefly for yourselves.
13 JUDGE MAY: Let me just have a look.
14 I've just looked at that. So that I can understand your position,
15 Mr. Sayers, you're saying that you're not in a position to challenge the
16 Prosecution's assertion that the tapes contain recordings of a
17 conversation between Mr. Kordic and Colonel Blaskic. So as I understand
18 it, and you say it's a perfectly proper thing to do, you're no longer,
19 given the state of the evidence, challenging the authenticity of the
21 MR. SAYERS: That's a -- we're actually -- we have two positions,
22 Mr. President. If I might just remind the Trial Chamber that we have
23 previously submitted, on June the 7th of this year, a response to the
24 Prosecution's report on what it referred to as audiotape handling of
25 evidence. There's a problem, a serious problem, and I'm sure the Trial
1 Chamber has it in mind, regarding the violation, we would argue, of Rule
2 81(C) in the removal of exhibits from the Registry.
3 We have reiterated in our most recent submission that we stand by
4 the arguments made in that pleading, but I felt that we owed a duty of
5 candor to the Court to let the Court know that we are not in a position to
6 challenge the Prosecution's argument that the conversation depicted on
7 that recording apparently took place.
8 JUDGE MAY: So I can understand it, then, you're not asking us to
9 decide on admissibility, although you are asking us, of course, to decide
10 on weight and interpretation and matters of that sort.
11 MR. SAYERS: Well, we have previously made a request to have both
12 of these tapes, 2801.1 and 2801.4, excluded for the reasons stated in our
13 June the 7th papers. But the position was summarised yesterday by the
14 Presiding Judge that we've taken -- we've made two arguments.
15 One is that the conversation never occurred, and we're bound to
16 recognise that we're not able to prove that, unfortunately. I did not
17 want the Prosecution or the Trial Chamber to be labouring under the
18 misapprehension that we would be promoting an argument that is devoid of
19 evidence, and I have to recognise, in all candor to the Trial Chamber,
20 that we don't have any evidence to challenge that. I wanted to make that
21 plain and I wanted to make it in writing.
22 But the characterisation of the conversation, the date of it,
23 those are matters in dispute, as we've stated. The principal issue,
24 really, is the handling of the evidence and that's the issue that we
25 addressed in our June pleading.
1 JUDGE MAY: So what are you asking us to do at this stage?
2 MR. SAYERS: We're asking for the relief that was stated in our
3 June pleading, Your Honour, and I thought that the decision on that had
4 been reserved, deferred, if you like, until all of the evidence was in.
5 It appears that all of the evidence is now in, and so those issues have
6 been fully ventilated between the parties and they are ripe for a
8 JUDGE MAY: And you'll remind us of the relief which you seek.
9 MR. SAYERS: We sought, Your Honour, to have the tapes excluded.
10 In the conclusion, we stated, on page 9 of our June pleading, that the
11 integrity of proceedings could only be maintained if convictions are based
12 upon proper evidence properly handled. This evidence, we would submit,
13 for the reasons reviewed in this pleading, was not properly handled. The
14 tape -- both tapes, both versions, appear to have been removed from the
15 custody of the Tribunal for reasons given by the Prosecution but without
16 the permission of the Trial Chamber, and that drew, appropriately, stern
17 rebukes from the Trial Chamber.
18 We basically stand upon our pleadings. I don't want to reiterate
19 everything that's in the paper. Thank you.
20 MR. NICE: Your Honour, this has all been dealt with fully in our
21 own pleading of the 25th of May, I think.
22 The matter is quite complicated historically but comes down,
23 simply, to this: The tape that was actually produced by the witness
24 Husic, the make of which he gave us the other day when he was giving
25 evidence, was the tape that was relied upon, was the tape he said had been
1 with him continuously from the time he made the recording, was the tape
2 that was played, was the tape that stayed with the Registry ever since.
3 It is the only Maxell - and that's the make of tape - containing these
4 recordings and it has, in fact, been with the Registry from first to
6 So whatever the procedural history and the alleged difficulties or
7 even alleged improprieties, which are entirely challenged as a matter of
8 fact, and on unchallenged evidence, the tape that's been relied upon is
9 the tape produced by the witness.
10 So the evidential position, dealing with things in the reverse
11 order because witnesses have come in reverse order, the Chamber has heard
12 live from the witness who heard the conversation live, recorded it and
13 handed it on; it's heard live twice from the witness who processed that
14 conversation and many others onto an original tape; it's heard how he
15 himself copied that original tape; it has that first copy with it and that
16 copy has been with the Registry from first to last.
17 In those circumstances, there are simply no conceivable grounds
18 for excluding this evidence which is clearly relevant, and in our
19 respectful submission, this application must fail and the evidence must be
20 admitted, subject, of course, to arguments thereafter about its value.
21 Just finally, because it's important to do so, to deal with the
22 history of the movements of the tapes in a couple of sentences. The
23 Chamber will recall that there were two tapes produced or at least looked
24 at in court. I'll just remind you of the history because it is quite
1 Initially, a tape had been produced and produced to the technical
2 booth, being the tape that had been transmitted by the witness Husic via
3 his superiors to an investigator and Mr. Lopez-Terres, they having brought
4 it to the Tribunal. That tape was the subject of cross-examination by
5 Mr. Stein, who was trying to make a point out of the fact that the tape
6 had been out of the witness' possession for the couple of days that it was
7 with his superiors.
8 Once that point was established, bad point though it may have been
9 ultimately, the tape continuously with the witness was produced from his
10 briefcase at the desk, handed straight to the booth, and it went to
11 registry. Subsequently, those two tapes were listened to, I beg your
12 pardon, a copy of the Maxell tape, that is a copy of the original tape
13 held by the OTP, and the tape produced via the superiors and
14 Mr. Lopez-Terres to the Court on the same day, were listened to by
15 Mr. Stein. They had been retained in the possession of the Prosecution
16 specifically to accommodate Mr. Stein.
17 At that stage, both Mr. Stein and the OTP thought they were the
18 two originals. They weren't. One was an original, one was a copy. They
19 both then went to the evidence unit in accordance with normal practice in
20 relation to original exhibits. They both then went without any subterfuge
21 to a laboratory. They went to the laboratory because, as I've explained
22 on an earlier occasion, it was expected that at some stage, the Defence
23 were going to make or try to make some point about the integrity of the
24 tape, and although we couldn't deal with it in advance, we wanted to know
25 whether there was anything from a listening to the tapes that aroused
1 suspicion that would have led to us take a different view in relation to
2 them. That's what we did.
3 The tapes then came back, and it all went to the Court. So, Your
4 Honour, everything done to accommodate the Defence, everything done openly
5 and, as it happens, the original tape has been with the Court from first
6 to last. It's rather summarised it, but I hope that reminds the Court of
7 an inevitably somewhat tangled history.
8 JUDGE MAY: Thank you.
9 [Trial Chamber confers]
10 JUDGE MAY: Yes, we'll consider this and deal with the matter
11 tomorrow, give a ruling, I should say.
12 Now, that takes us on. Are we in a position to deal with the
13 Cerkez Defence additional exhibits?
14 Mr. Kovacic, have you had a chance to see what's been produced by
15 the Prosecution?
16 MR. KOVACIC: Yes, Your Honour, I did, and I would just say a
17 couple of words. I will not take time on that. It seems that the
18 Prosecution claims that six or seven documents are already admitted. If
19 so, and I cannot claim that for sure because they are very similar
20 documents and relevant numbers should be also the original number on the
21 document. So I suggest that either the registry or I, myself, can do that
22 in the office. If they are admitted, of course, I don't insist to have
23 the repetitive documents in the file. There is no sense on that.
24 As per the other objections, there are basically four or five
25 different objections, but related to what you actually said on the
1 beginning of this session this morning when earlier, the Prosecution and,
2 a little bit later, Kordic Defence introduced their documents directly to
3 the files in the evidence, the only criteria was where technical areas,
4 credibility and translations, if I am correct. It is -- that is because I
5 believe that those objections or comments made by the Prosecution here
6 entirely relevant. Because, for example, one of the objections is that
7 the document could have been tendered earlier in the Defence case. It was
8 up to me, because I was the last one in the row, to decide whether I will
9 use certain document by certain witness or I should simply wait until my
10 time comes. Because that was done by the Prosecution when they closed
11 their case; they did it. When Kordic Defence closed their case, they did
12 it, so I assume that I was entitled to the same procedure.
13 As per other objections raised, for example, on the fact that
14 document was a Defence exhibit in the Blaskic case so also could have been
15 tendered earlier, it is practically the same answer on that because it was
16 up to me to use that document at a certain time by certain witness or
17 simply to put it in the files on the end of the case.
18 I don't think that I have to take any further time. Thank you.
19 JUDGE MAY: Thank you very much. Mr. Scott, we've got your
20 submissions here and unless there's anything you particularly want to add
21 to them, we'll consider them.
22 MR. SCOTT: That's Mr. Lopez-Terres.
23 JUDGE MAY: I'm sorry, it's Mr. Lopez-Terres dealing with this.
24 Mr. Lopez-Terres, we've got your submissions. Unless there's
25 anything you want to add.
1 MR. LOPEZ-TERRES: [Interpretation] Absolutely not.
2 JUDGE MAY: Thank you. There is one additional motion which
3 concerns the monitoring of phone calls.
4 [Trial Chamber and legal officer confer]
5 JUDGE MAY: The senior legal officer has referred us to the
6 detention regulations and Regulation 22: "Detainee may, at any time,
7 request the President to reverse any decision of the registrar taken under
8 Regulation 21," which deals with monitoring phone calls.
9 So your route should be to the President, rather than the Trial
11 MR. SAYERS: I'm obliged for the Trial Chamber pointing that out
12 to me, and we will take the appropriate steps.
13 JUDGE MAY: It's the senior legal officer, not the Trial Chamber.
14 That deals with that matter. It remains to deal with the rejoinder for
15 Mr. Cerkez and any other matters that anybody wants.
16 We've had a notice, Mr. Kovacic, of I think three witnesses. Is
17 it your intention to call them and, if so, when?
18 MR. KOVACIC: Thank you, Your Honour. Yes.
19 THE INTERPRETER: Microphone for Mr. Kovacic, please.
20 MR. KOVACIC: Yes, Your Honour. We will, providing that we are
21 allowed to, we will call the witnesses, Mr. Miskovic and Mr. Zuljevic.
22 The subject of their testimony should be as briefly described in our
23 motion from November 24th. Unfortunately, at this point of time, I am not
24 able to confirm whether the third witness who is out of that category
25 since that was -- it is an affidavit witness which the Court has ordered
1 to be called for direct testimony. There seems to be some problems. I
2 was not able to make telephone calls and I am planning to do that during
3 the rest of the day so probably tomorrow I will know the status. I am
4 informed that there are some problems, something like force majeure, but I
5 will be in the position to advise about that tomorrow.
6 However, first two witnesses I would like to call ...
7 JUDGE MAY: That will be on Friday or can you get them here
9 MR. KOVACIC: I was trying to correlate with Kordic Defence and
10 Prosecution, and there was a general consensus that probably we might
11 start late part -- later part of Thursday or Friday morning. They are
12 both relatively short, particularly the first one.
13 JUDGE MAY: Very well. Thank you very much.
14 MR. KOVACIC: Thank you, Your Honour.
15 MR. NICE: Apart from any other matters on Your Honours' agenda or
16 list, there was one matter I was going to deal with about a potential
17 exhibit called 351.2. Can I explain it with the assistance of the usher?
18 It won't take me more than a minute or so.
19 This is the communications register. It's not translated, and if
20 it's to be admitted into evidence, I would ask that, for reasons of
21 economy, it's not necessary to translate it and I'll explain why.
22 The Chamber's heard of it from the witness Prelec, and with the
23 usher's help I will explain exactly how it comes about. It involves
24 looking, very rapidly, at about four documents.
25 The problem arose with Exhibit 660.1. The original -- the English
1 version I remind you of. And Your Honour will see, just to remind you of
2 what the exhibit was, that it was apparently an exhibit dated the 15th of
3 April going from Central Bosnia headquarters and relating to Muslim
5 The next document is the original, as tendered in the Blaskic
6 trial, of this document where we see that the date was not typed the 15th
7 but was handwritten the 15th over something else. One also sees that
8 above the date, there's no entry for the register number or whatever
9 serial number of the document. That was explained in the Blaskic trial, I
10 understand, is the work for some reason of those representing Blaskic in
11 some way they apparently justified it.
12 However, the original document was eventually available and indeed
13 found in Zagreb and the same document for this is it, had on it the serial
14 number at the top 01-4-508. We then turn and -- but if we can leave that
15 on the ELMO for the time being, underneath the date and so on entries, you
16 can see in B/C/S the topic that's referred to there. I'm not going to try
17 and read it, but one can read it.
18 The book that I'm concerned with, Z351.2, I hold it up is a very
19 full slim lever-arched file, and at the relevant page, the entry for the
20 letter of the 1st of April, I beg your pardon, the letter that has the
21 reference number which we can see on the left-hand side, 01-4-508, is
22 dated the 23rd of April, not the 15th.
23 I'm very grateful to the usher.
24 If you look at the block of typing to the left, you can see that
25 the contents, even without being able to read and understand the language,
1 appears to match so that that is the letter said to have gone out from
2 Central Bosnia on the 23rd of April.
3 This particular entry we have had translated, and by having this
4 one translated, the column headings are described: Basic number, subject,
5 received on, sender, and another mark on the right-hand side. And this is
6 said to be a preparatory combat order for the defence of the city of Vitez
7 although, of course, it was appearing in the Blaskic trial as a document
8 showing Muslim aggression much earlier than the 23rd of April.
9 Now, as to this particular document, that is, the exhibit itself,
10 661 -- thank you very much indeed for that -- the Exhibit itself, it was
11 introduced by us through General Merdan, and he said of the particular
12 passage "totally untrue".
13 We now know, because Mr. Sayers acknowledged this in the course of
14 discussions about this exhibit last week, that it's accepted by the
15 Defence that the date is inaccurate and, to that extent, the document is
16 or purports to be in its final state an untrue document. The point that
17 was established, as Mr. Prelec told you, via this particular large,
18 potential exhibit.
19 Just to complete the history of documents with numbers, with
20 references excised, there were other documents in the Blaskic trial at
21 about the same time which also had their serial numbers excised. Why that
22 may be is a matter of conjecture but, nevertheless, that was the case.
23 This exhibit could prove useful to the Chamber if it found itself in
24 respect of any particular documents and of its own motions or
25 considerations wishing to check that a Central Bosnia Operative Zone
1 document was recorded at the time and place when it should have been.
2 JUDGE MAY: This is a Zagreb document.
3 MR. NICE: It is, yes.
4 JUDGE MAY: It's a register.
5 MR. NICE: That's right.
6 JUDGE MAY: Which was found in the archives.
7 MR. NICE: Correct.
8 JUDGE MAY: You didn't, I think, ask us to admit it or perhaps you
9 did. I can't remember what happened.
10 MR. NICE: I raised it with you and said that we'd put it back and
11 consider it when we had time to go through this little exercise, and that
12 is how it's been left. Mr. Prelec referred to it as a potential exhibit
13 and, again, for the saving of time, we didn't go through the exercise. He
14 summarised it.
15 JUDGE MAY: Mr. Prelec gave the evidence about it and the evidence
16 about the other document.
17 MR. NICE: About the particular document.
18 JUDGE MAY: The difficulty is that you're now introducing a very
19 considerable -- potentially a very considerable volume of evidence in the
20 last week.
21 MR. NICE: Yes. It would be as I -- it would be a work of
22 reference or something against which outgoing documents could be checked
23 because we don't know, of course, how the Chamber is going to be doing its
24 work or what issues will occur to it in due course. We can only, in a
25 case with so much material, identify so many issues ourselves. We can
1 recognise that this document might be something to which the parties would
2 wish to turn. That's all.
3 [Trial Chamber and legal officer confer]
4 JUDGE MAY: Mr. Nice, I am being referred to our decision of the
5 1st of December which excluded that document 351.2. So we obviously
6 considered it as part of the miscellaneous documents. It was no doubt
7 attached to the schedule.
8 MR. NICE: Your Honour, yes, I think we had actually, at every
9 stage, technically reserved our position, and the Chamber had agreed to
10 consider it.
11 JUDGE MAY: We will take it as if you had.
12 [Trial Chamber confers]
13 JUDGE MAY: No. We have enough evidence on the point. We think
14 it's too late to introduce a document of this size.
15 Now, any other business?
16 MR. NICE: Order of speeches, I think, and timing of speeches next
17 week was something that the Chamber was going to deal with and we now know
18 it is going to be next week.
19 JUDGE MAY: Yes. Yes. We'll deal with that and any other matters
20 which anybody wants to raise?
21 Anything you want to raise, Mr. Sayers?
22 MR. SAYERS: There is one thing, Mr. President. We had, in our
23 papers that related to the anonymous documents, the brief that we filed on
24 November 20th, there was an ancillary request made under the authority of
25 paragraph 18 of the Tadic decision on hearsay in 1996 to exclude two
1 documents Z1380.4 and Z1406.1.
2 JUDGE MAY: Well, you'll --
3 MR. SAYERS: The reasons are stated in the papers.
4 JUDGE MAY: You will have to remind us about it. Are these
5 documents which have already been admitted?
6 MR. SAYERS: These are documents that we used during the
7 cross-examination of Witness DL and Witness Zoran Maric. There is no
8 corroboration anywhere else in the record for the statements contained in
9 these, and both witnesses specifically disagreed with the contentions made
10 in those documents. They are anonymously authored and frankly the same
11 reasons undergird our opposition to those documents that undergirded the
12 pleading that we filed on October 20th.
13 JUDGE MAY: We ruled on admissibility at the time about such
14 reports. There was one, whether it was that one or not, was one subject
15 of appeal. The distinction, Mr. Sayers, is that whatever was admitted
16 during the course of the trial was one thing. But what we were
17 specifically dealing with at the end with the Zagreb material was evidence
18 being admitted right at the end, and you may have noticed that what we
19 said in our decision was that it would now be impossible for the Defence
20 to deal with it, "now" is the crucial word.
21 MR. SAYERS: Yes, I'm -- I am fully mindful of that,
22 Mr. President, and I don't mean to revisit an old issue, but the reason
23 that I mentioned paragraph 18 of the Tadic decision was, and just to
24 remind the Trial Chamber of what it says, it says, subrule 89(D) --
25 actually, if I may just put this on the ELMO, everyone can read it and I
1 don't have to burden the interpreters.
2 The decision, and obviously it's a Trial Chamber decision, it's
3 not an Appeals Chamber decision, but it's a decision that we urge the
4 Court to follow. In the case of these two particular documents, once
5 evidence has been admitted, it can later be excluded if it's shown to be
6 unreliable and if it's substantially outweighed by the need to ensure a
7 fair trial.
8 Now, one of these documents only, really, contains some fairly
9 serious charges against Mr. Kordic. That's document Z1380.4. The other
10 one contains some erroneous observations but they're, I'm bound to say,
11 not particularly prejudicial to Mr. Kordic. The first one is, though, and
12 there's no other evidence to support the contentions made in that
13 particular document. And the same reasons that we've explored with
14 respect to the other anonymous documents, in fact, that particular
15 document, what we are requesting is, under Rule 89(D) and under the
16 authority of the jurisprudence of the Tribunal as articulated in the Tadic
17 hearsay decision, is for the Court to exclude those two particular
18 documents, but most particularly Z1380.4, for the reasons that we've given
19 in our pleadings.
20 We have, I hope, comprehensively set out all of the evidence that
21 relates to the particular contentions that are made in that document.
22 There is no other evidence, I think, and I'll be corrected if I'm wrong,
23 that was omitted from our papers on that score.
24 [Trial Chamber confers]
25 JUDGE MAY: No, we are not going to change any previous rulings or
1 any previous admission of documents. Of course, as was said in Tadic, a
2 Chamber can reconsider a previous decision if there is some good reason
3 for doing so, but here we can see no good reason.
4 The argument is raised that, in excluding some Zagreb material, we
5 said that it would be impossible for the -- would not be possible for the
6 Defence to deal with the matters, but at that stage we were dealing with
7 evidence which was being entered right at the very end of the trial, after
8 the close of the Defence case. Other matters were being dealt with much
9 earlier in the trial and there was the possibility then for the Defence to
10 deal with it. So those rulings will not be altered.
11 Now, can we deal with the next point, please. The next point is
12 the order of speeches and timing and the like. We've got two days.
13 MR. NICE: We're in Your Honours' hands. Yes, it's Thursday and
14 Friday, or Thursday and such part of Friday as is available to us.
15 JUDGE MAY: How long are you going to want? You'll have put, no
16 doubt, a substantial brief in.
17 MR. NICE: I was going to say, with a case of this size, there's
18 no way one's going to be able to deal with it all in oral submissions. I
19 haven't yet decided, frankly, what we're going to say in oral
20 submissions. It comes for consideration after all the evidence is in,
21 which is later in the week.
22 We have got two cases to deal with. The Rules make provision not
23 only for argument, but they make provision for rebuttal and rejoinder
24 argument as well. That's what the Rules say. Those with North
25 American -- yes. Those with North American experience who are used to the
1 Prosecution having the last word, it's entirely a matter for the Court, I
2 suppose, subject to the order -- is it 69 or 79? Let me find it. Yes,
3 page 79 of the 2nd of August version, Rule 86: "Closing Arguments. The
4 Prosecutor may present a rebuttal argument to which the defence may
5 present a rejoinder."
6 JUDGE MAY: We're certainly not going to encourage that in the
7 short time which is available. I would have thought that you will be able
8 to deal with all the arguments in your final speech.
9 MR. NICE: I'll do my best.
10 JUDGE MAY: But, anyway, we haven't had an estimate yet.
11 MR. NICE: No. If there's a day and a half as opposed to two
12 days, I'm not sure how much time there is available for us, does it ...
13 [Trial Chamber confers]
14 JUDGE MAY: Yes. Well, Friday afternoon will be available.
15 That's in the next two days.
16 MR. NICE: Given that we have two cases to meet and the Defence
17 have one only each to defend, there's an argument for saying we should
18 have approximately a day and they should have approximately half a day
19 each. But I would try to finish in less than a day, yes.
20 JUDGE MAY: Mr. Sayers.
21 MR. SAYERS: I don't know what Mr. Kovacic's views on this are,
22 Mr. President, but speaking for Mr. Kordic, it seems that the fair
23 allocation of time is one-third, one-third, one-third. If there are two
24 days available, by my calculation, that's nine hours. Three hours should
25 certainly be sufficient to present our argument.
1 What I would propose to do, if this is agreeable to the Trial
2 Chamber, is just divide it up between members of our team. Mr. Smith
3 would like to have a go on the persecution claim, I think, generally, and
4 Mr. Naumovski and I will divide up in an equitable way the remaining
5 claims made against our client, if that's acceptable to the Trial
7 JUDGE MAY: Yes, that's acceptable.
8 MR. SAYERS: Thank you very much.
9 JUDGE MAY: Yes, Mr. Kovacic.
10 MR. KOVACIC: [Interpretation] I second the Kordic Defence's
11 proposal. I think, yes, that it would be fair to grant each and every
12 side a third of the time available.
13 [Trial Chamber confers]
14 JUDGE BENNOUNA: [Interpretation] What I also wish to say to the
15 Defence and to the Prosecution is that it is not the length of time but
16 the intensity of the argument, the intensity of the contents rather than
17 time. There can be a question about the number of hours or the time
18 allotted, but it really depends on the substance. The convincing power of
19 whatever argument does not depend on the length of time. Everyone should
20 be able to express himself properly.
21 Evidently, the Prosecutor will say that they need more time
22 insofar as the Prosecutor has two cases to deal with, whereas the Defence
23 has one client each. That is one thing that one also needs to
25 [Trial Chamber confers]
1 JUDGE MAY: Well, we'll consider the timetable.
2 Now, are there any other matters?
3 MR. NICE: Two very short points. One, there's been a continuing
4 concern about the authoritative page references on transcripts. For
5 purposes of our written arguments, what are the genuinely correct page
6 numbers? What are the page numbers you will want us to be using, given
7 that LiveNote and the hard copy have sometimes not coincided?
8 I understand that that matter has been or is being resolved and
9 that we will have or soon have a definitive list of what the page numbers
10 are or a version with the page numbers. We will do our best in the time
11 between now and 4.00 on Wednesday to ensure that our documents bear the
12 authoritative figures. We can't guarantee getting it right in time
13 because of the lack of coincidence over recent periods of time.
14 The second thing is, if I may, there was something I meant to say
15 in relation to the tape argument, if you'll indulge me with 30 seconds for
16 two very short points; that is, as the Chamber will know in relation to
17 Kordic's involvement in artillery matters, there is now, of course,
18 further support for that in two of the exhibits, the diary and in the
19 Exhibit 447.1 that's now before you.
20 Thank you very much.
21 JUDGE MAY: Anything anybody else wants to raise?
22 MR. SAYERS: Not from Mr. Kordic, Your Honour. Thank you.
23 MR. KOVACIC: Not us, Your Honour.
24 JUDGE MAY: Very well. We will consider these matters and deal
25 with what we can tomorrow morning. We will sit at half past nine.
1 --- Whereupon the hearing adjourned at 12.40 p.m.,
2 to be reconvened on Wednesday, the 6th day of
3 December, 2000, at 9.30 a.m.