1 Tuesday, 15 May 2001

2 [Open session]

3 --- Upon commencing at 9.20 a.m.

4 [The accused entered court]

5 JUDGE RODRIGUES: [Interpretation] Good morning. Please be

6 seated.

7 Good morning to the technical booth and the interpreters, the

8 registry staff, and the Prosecution and Defence counsels.

9 Mr. Masic, I see that you're in the right seat. Is there a

10 problem with Mr. Prcac perhaps?

11 MR. MASIC: [Interpretation] Mr. President, a capillary in his eye

12 has burst, but I have asked Mr. Prcac and he says that he can continue.

13 JUDGE RODRIGUES: [Interpretation] Thank you. Very well. I heard

14 that we can go on working in his absence through the translation.

15 MR. MASIC: [Interpretation] No.

16 JUDGE RODRIGUES: [Interpretation] All right. I understand now.

17 The next witness is Momcilo Stojakovic, I believe.

18 MR. MASIC: [Interpretation] That's right, Your Honour. The

19 Defence calls its next witness, Mr. Momcilo Stojakovic.

20 JUDGE RODRIGUES: [Interpretation] Okay. Mr. Usher, would you do

21 your job.

22 MR. MASIC: [Interpretation] Mr. President, before the usher

23 escorts the witness into the courtroom, the Defence team would like to

24 inform you that it won't be hearing Mr. Vuleta Stojan, so after this

25 witness we're just going to hear one more witness, and he is the expert

1 witness, and with that we shall be concluding our Defence case

2 [The witness entered court]

3 JUDGE RODRIGUES: [Interpretation] Good morning, Mr. Momcilo

4 Stojakovic. Can you hear me?

5 THE WITNESS: [Interpretation] Yes, I can.

6 JUDGE RODRIGUES: [Interpretation] You will now please read the

7 solemn declaration handed to you by the usher.

8 WITNESS: MOMCILO STOJAKOVIC

9 [Witness answered through interpreter]

10 THE WITNESS: [Interpretation] I solemnly declare that I will speak

11 the truth, the whole truth, and nothing but the truth.

12 JUDGE RODRIGUES: [Interpretation] Please be seated. Thank you

13 very much for having come, Mr. Stojakovic. You will start off by

14 answering questions put to you by Mr. Masic, and afterwards there will be

15 other questions, but for the moment it is Mr. Masic.

16 Mr. Masic, your witness.

17 MR. MASIC: [Interpretation] Thank you very much, Your Honour.

18 Examined by Mr. Masic:

19 Q. Good morning, Mr. Stojakovic. For the record, could you please

20 state your full name.

21 A. My name is Momcilo Stojakovic.

22 Q. When were you born?

23 A. I was born on the 16th of April, 1940.

24 Q. Where were you born?

25 A. I was born in Gornja Omarska, upper Omarska.

1 Q. Where do you reside?

2 A. I live in Gornja Omarska today still.

3 Q. Are you married?

4 A. I am married.

5 Q. Do you have any children?

6 A. Yes, I do.

7 Q. How many?

8 A. I have four children.

9 Q. What is your work now? What do you do at present?

10 A. Since April 2000 I am a pensioner.

11 Q. What did you do before you retired?

12 A. Before I retired I worked in a company, the iron ore mine Ljubija,

13 or Omarska, as a worker providing security for the company.

14 Q. In 1992, during the war and the conflicts, were you employed in

15 the same post, and if so, what did you do? Could you please make pauses

16 between question and answer to facilitate the work of the interpreters.

17 Thank you. You may proceed.

18 A. I remained at the same work post. I was assigned to a work duty

19 and I continued working -- doing the same job.

20 Q. Could you tell us what job that was, what work post was your job

21 exactly?

22 A. I worked at the gate, the entrance gate in front of the collection

23 centre. It is about 150 metres away from the centre.

24 Q. Who did you replace, who was the other person you replaced at that

25 gate, who worked with you, who did you alternate with?

1 A. I worked with Obrad Popovic, there were the two of us only. I

2 would relieve him, he would relieve me and the two of us worked there and

3 took turns every 24 hours.

4 Q. During the duration of the investigation centre that you

5 mentioned, did ambulances pass through the gate going to the investigation

6 centre?

7 A. Ambulances did pass often, both civilian ambulances and military

8 ambulances.

9 Q. I apologise but could you explain to me what you mean by often,

10 how often?

11 A. Well, I can't tell you exactly, but in the course of one day every

12 day, quite a number of vehicles, ambulances would go to and from the

13 investigation centre.

14 Q. Who was able, without a pass, a permit, to pass by you at the gate

15 and enter the investigation centre?

16 A. Those who were able to pass by us and through the entrance gate

17 were all those persons in uniform belonging to the army and the police.

18 Q. Were they -- were the employees working in the mine whom you knew

19 able to pass?

20 A. The persons employed in the mine, should the need arise, that is

21 to say, if they had a job to do, they would go and do the job to the place

22 where they needed to do it. For example, if there was an electricity cut

23 or maintenance of any kind for the pumps, water pumps or the water at the

24 pits.

25 Q. If a civilian were to turn up who was unknown to you and wished to

1 enter the investigation centre, what did you do?

2 A. Whenever anybody unknown turned up, civilian, we would call up on

3 the telephone, how shall I explain this, there was an extension at the

4 administration building where the police were, and one of them would come

5 to the entrance and escort the person. I don't know what they would do

6 after that. That wasn't my job. We had nothing to do with civilians.

7 They would take over from there.

8 Q. What happened in your own family in July 1992?

9 A. In July 1992, on the 9th of June [as interpreted], to be more

10 precise, my mother died.

11 Q. Did you, and if so, how many free days were you given to bury her,

12 to see to the funeral, and all the other things that are customary?

13 A. I was allotted 7 days to take care of the funeral and everything

14 that that entailed of my mother's funeral.

15 Q. When did you return, what date did you go back to work after the

16 funeral.

17 A. I returned to work after that leave of absence on the 16th of

18 July.

19 Q. That morning when you returned to work, did you relieve Obrad

20 Popovic, did you take over from Obrad Popovic?

21 A. That morning, I started off a little earlier because there was no

22 transport, or there was just some transport by chance if somebody had to

23 go by, but I came across Obrad Popovic at his work post.

24 Q. That morning, did you see Drago Prcac or Dragoljub Prcac, rather,

25 entering the gate, the entrance, your gate and going towards the

1 investigation centre?

2 A. On exactly that morning, for the first time, I saw Drago Prcac

3 entering through our entrance gate going to the investigation centre.

4 Q. Did you know Drago Prcac before that?

5 A. I knew Drago Prcac just by sight.

6 Q. Obrad Popovic, did he tell you anything on that occasion about

7 Drago Prcac?

8 A. I asked him, "How come that man is here and how long has he been

9 coming here to the collection centre?" He told me that yesterday, for the

10 first time, that is, the day before, Drago had come for the first time

11 here not of his own free will but that he was forced to come.

12 Q. Tell us, please, approximately how long you would see -- for what

13 period of time you would see Drago Prcac coming to the centre?

14 A. Well, I would see him for about two weeks, 15 days, a fortnight

15 more or less.

16 Q. Did you hear, and if so, what, anything about Drago Prcac as a man

17 in the village of Omarska where you yourself live?

18 A. Well, I heard people say that Drago was a very honest man and that

19 he was a good provide -- a good family man.

20 Q. Thank you. Could you repeat the date when your mother died,

21 please, for the record, because it was entered into the record wrongly on

22 page 5:9:9. So could you repeat when your mother died?

23 A. My mother died exactly on the 9th of July. The 9th of July 1992

24 was when my mother died.

25 MR. MASIC: [Interpretation] Thank you, Mr. Stojakovic.

1 Your Honours, I have no further questions for the witness at

2 present.

3 JUDGE RODRIGUES: [Interpretation] Would any of the other counsel

4 like to ask any questions? I don't see anybody getting up. So it is

5 Mr. Waidyaratne's turn on behalf of the Prosecution.

6 Mr. Stojakovic, will you now be answering questions put to you by

7 the Prosecution.

8 Mr. Waidyaratne, your witness.

9 MR. WAIDYARATNE: Thank you, Your Honour.

10 Cross-examined by Mr. Waidyaratne:

11 Q. Mr. Stojakovic.

12 A. Yes, sir.

13 Q. Did you visit the centre, Omarska camp?

14 A. The camp, or rather the collection centre, I didn't enter, no.

15 Q. You have never gone to the place where the detainees were kept?

16 A. No, I never went there and that's what -- what our orders were.

17 Our orders were -- our superior had ordered us, our director, not to go

18 there.

19 Q. Did you know who the camp commander was, did you see him going

20 into the camp?

21 A. I have absolutely no idea who that was. I didn't know those

22 people at all, nor was I interested in anything like that, and I know

23 nothing about that kind of thing.

24 Q. Did you speak with Mr. Popovic and ask him as to what was

25 happening in the camp? Did you speak with him as to what was taking place

1 in the camp?

2 A. We didn't talk about that, ever.

3 Q. So more than three months though you had been there, you never

4 discussed as to what was happening in that camp; is that your position?

5 A. Yes. I claim that we didn't. We didn't know who was there, what

6 was going on there.

7 Q. Did you see people being brought, detainees being brought into the

8 camp in buses, in police vans?

9 A. Vehicles did pass by, all types of vehicles, often. They passed

10 through our gate. But I didn't know who was there.

11 Q. Mr. Stojakovic, now, in 1992, were you attached or

12 assigned - sorry - were you mobilised, by any chance?

13 A. No. When, shall we call it, the war started, we were told

14 straight away that we elderly persons were to carry on with our job and

15 provide security for the premises of our company.

16 Q. Mr. Stojakovic, were you given a uniform and a weapon when you

17 were at the entrance?

18 A. A uniform? I had the same uniform I had previously. As for

19 weapons, we had our own official pistol. That was all we had of weaponry.

20 Q. Mr. Stojakovic, could you tell us, enlighten us, on how many

21 entrances there were to this camp, other than the main entrance that you

22 spoke of?

23 A. Well, there were two other entrances, or rather, apart from some

24 back paths, because it's a large compound; it's very big. So I don't

25 know. But apart from the main entrance, there were two other entrances.

1 Q. So people could have entered from any of these entrances, come

2 into the camp?

3 A. No, they couldn't enter the camp except through our entrance, into

4 the investigation centre, but the whole compound, which is perhaps two

5 kilometres long, they could have got in through some other gap somewhere.

6 Q. Were you at any time told that there were some people who were

7 given permits to enter the camp?

8 A. I don't know anything about that.

9 Q. Now, what were you doing? When you were at the entrance, were you

10 at any time shown any pass or permit by any of these people during the

11 three months that you worked there; yes or no?

12 A. We didn't receive passes or permits except for those civilian

13 people who came, and then we would call up using our telephone and then

14 they would take over those people. They would meet them and -- I don't

15 know.

16 Q. Now, when you say --

17 A. -- take them.

18 Q. Sorry. When you say "they would take them," were these people

19 whom you referred to as "they" the police personnel who were in the camp,

20 the guards who came to take these people?

21 A. I didn't say who they took in the vehicles. We couldn't recognise

22 them. Vehicles, all kinds of vehicles, would come and go.

23 Q. I'm sorry I have to disturb you. I was asking about the people.

24 You said that you would give a call and the person from the camp would

25 come and take the visitors to the camp. Were you the people who came from

1 the camp the police officers or the guards who came to take them?

2 A. The uniformed policemen, some summer uniforms they had, and when

3 we called them up on the phones, one of them would come and take the

4 civilians over from us.

5 Q. Before we leave this area: When you called the centre - so, for

6 example, a civilian had come to the gate - who would answer the phone?

7 A. I couldn't recognise them, because I was far away.

8 Q. Now --

9 A. That is to say, my place of residence is 10 kilometres away. I

10 didn't know them. I didn't know any of the policemen, anyone.

11 Q. Now, when you said that on the 16th of July you saw Mr. Prcac, how

12 was he dressed when you saw him?

13 A. He had a sort of summer - was it yellow or white or something like

14 that -

15 Q. Did you see --

16 A. - police. Police.

17 Q. He was --

18 A. Police attire.

19 Q. He was dressed in a police uniform; is that your position?

20 A. Yes, that's right. Yes, that's right. He was.

21 Q. Did you see him carrying a weapon?

22 A. He carried a pistol, as far as I could see.

23 Q. Now, you said Mr. Popovic told you that Prcac started working a

24 day before and that he was forced to come there against his will.

25 A. That's right. He told me that, Obrad Popovic, that is. Obrad

1 Popovic told me that, my work colleague.

2 Q. Did he say -- did Mr. Popovic say as to why Mr. Prcac didn't want

3 to work there?

4 A. Well, as a pensioner, he didn't want to. He tried to avoid it.

5 He wasn't satisfied. He wasn't happy, by what Obrad -- according to what

6 Obrad Popovic told me, but somebody had threatened him and forced him. He

7 was forced and he was coerced to go and work.

8 Q. You didn't understand my question most probably. Did Mr. Obrad

9 Popovic tell you as to his why Mr. Prcac didn't want to come to the

10 Omarska centre, the detention camp?

11 A. Well, he didn't tell me directly. He didn't specify why he didn't

12 want to and what the reasons were. As a pensioner, as somebody who was

13 retired, he didn't want to get involved in all that, because he's a modest

14 man, from what I heard, fairly withdrawn, and he didn't want to be thrown

15 into that whirlpool. That's what Mr. Popovic told me and that's how he

16 came to be there.

17 Q. Mr. Stojakovic, if you can make it clear: You said in your

18 answer, he didn't want to get involved in all that, and you subsequently

19 said he didn't want to be thrown into what whirlpool. What do you exactly

20 mean by that? What happened in the camp? Why didn't Mr. Prcac want --

21 A. Well, quite simply, he didn't want to. Could you repeat the

22 question, say that again?

23 Q. Okay. You, in your answer, said that Mr. Prcac didn't want to get

24 involved in all that. He didn't want to be thrown into that whirlpool.

25 What exactly did you mean by that, being very brief?

1 A. Well, that's what he told me. As I said, that's what Obrad

2 Popovic told me, as I've already said. He said that he didn't want to but

3 was forced to go. Now, I don't know the exact reason of all that.

4 Q. Mr. Stojakovic, did you know that Mr. Prcac, before he came to the

5 centre, worked in the Omarska Police Station?

6 A. No.

7 Q. Did Mr. Obrad Popovic say whether Mr. Prcac replaced Mr. --

8 whether Mr. Prcac replaced anyone in the camp?

9 A. I never heard about that from Obrad, from Obrad Popovic or from

10 anyone else.

11 Q. Did you --

12 A. Nor were we interested in what -- who was doing what. We were

13 there --

14 Q. You came to give evidence on behalf of Mr. Prcac. Do you know as

15 to what position or authority Mr. Prcac held in the camp?

16 A. I don't know about any of the policemen there or anybody else. We

17 had no -- nothing to do with them at all. We didn't go inside. We

18 weren't interested in things of that kind, and we were prohibited by our

19 superiors to go inside. All we did was the job we were assigned to do,

20 the things we had to do.

21 MR. WAIDYARATNE: Thank you, Your Honour. That concludes my

22 cross-examination. Thank you.

23 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Waidyaratne.

24 Mr. Masic, any re-examination on your part?

25 MR. MASIC: [Interpretation] Thank you, Your Honours, we have no

1 additional questions.

2 JUDGE RODRIGUES: [Interpretation] Okay. Very well. Judge Fouad

3 Riad.

4 Questioned by the Court:

5 JUDGE RIAD: Mr. Stojakovic, good morning. Can you hear me?

6 A. Yes, I can hear you. Good morning. Yes, I can hear you.

7 JUDGE RIAD: Good. You were stationed at the gate of Omarska

8 camp. How far was the gate from the main building where everybody was?

9 A. The gate from the main building was about -- it was at least 150

10 metres away, at least.

11 JUDGE RIAD: And you had no knowledge of what was happening inside

12 at all?

13 A. Absolutely none.

14 JUDGE RIAD: You were not in touch with any of the people inside

15 who would pass by and give you some news or tell you what was going on?

16 A. Nobody told us anything about that and I don't know anything about

17 what was going on in the compound of the collection centre.

18 JUDGE RIAD: Could you hear any noise, sometimes shooting,

19 sometimes movement at 100 or 150 metres distance?

20 A. You could hear shooting sometimes roundabout, but not directly I

21 didn't hear. But roundabout you could always hear something like that,

22 shooting of some kind from time to time.

23 JUDGE RIAD: And it did not arouse your curiosity to know what was

24 happening or to ask?

25 A. Absolutely, and I too was afraid when I was doing my job, when I

1 was on the job, because that's what the times were like. So I was a

2 little bit afraid myself.

3 JUDGE RIAD: And how long did you stay there as a guard?

4 A. I started working in that company on the 1st of February 1984.

5 JUDGE RIAD: No, I mean in the camp, at the Omarska camp.

6 A. The whole time until I retired in mid-April 2000.

7 JUDGE RIAD: From which date?

8 A. To the 15th of April last year. I worked until the 15th of April

9 last year, 2000, I mean.

10 JUDGE RIAD: I see. Now, you said Mr. Popovic told you that

11 Mr. Prcac was forced to come against his will. Did you hear that from any

12 other person or was it Popovic's only source of information who gave you

13 that?

14 A. Obrad Popovic was the only -- my only source as -- with others, I

15 didn't have any contacts with other people. I knew the people down there

16 more or less by sight.

17 JUDGE RIAD: And nobody ever talked to you about Mr. Prcac?

18 A. I did hear later on that he was an honest man, had a good -- was

19 good at husbandry. I didn't talk to anybody else, nor was I interested.

20 JUDGE RIAD: Thank you very much.

21 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge Fouad

22 Riad.

23 Madam Judge Wald has the floor.

24 JUDGE WALD: Mr. Stojakovic, I only have one question. You told

25 us after the 16th of July when you first saw Mr. Prcac, that you saw him

1 for about a fortnight afterwards and then you didn't see him anymore. My

2 question is: Did you hear from either Mr. Popovic or anyone else that he

3 had left the camp or did you just stop seeing him? Did you hear from

4 anybody that he had left or why he had left, or you just assumed he had

5 left because you didn't see him anymore?

6 A. I didn't see him anymore after those 14 or 15 days.

7 JUDGE WALD: Did Mr. Popovic --

8 A. I didn't see him coming to the investigation centre, and he didn't

9 tell me about that either. But as I say, as I was there every other day,

10 had he been coming I would have seen him because there wasn't another

11 entrance into the collection centre for them.

12 JUDGE WALD: But Mr. Popovic, did he ever or did he mention

13 anything about his not being at the camp anymore, about Prcac not being at

14 the camp anymore? You never had any conversations with Mr. Popovic again

15 after he left?

16 A. No. No, I didn't talk to him. Well, quite simply, as far as I

17 know, he didn't come anymore, and what I can say is that when I was on

18 duty, every other day I was on duty, that is 24 hours, I didn't.

19 JUDGE WALD: Okay.

20 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

21 Wald.

22 Mr. Stojakovic, I have a few questions too. The person or the

23 policeman that you called up on the phone when a civilian arrived, you

24 said that that policeman would come to the gates to take over the

25 civilian; is that right?

1 A. Yes, right. Quite correct.

2 JUDGE RODRIGUES: [Interpretation] That policeman, was it always

3 the same person or were they different persons?

4 A. Different persons. It wasn't always the same one.

5 JUDGE RODRIGUES: [Interpretation] Did you come to learn the names

6 of any of them?

7 A. I didn't know them, the policemen, because I live quite some

8 distance from there. I didn't go inside, nor was I interested in finding

9 out who was who. All I did was my job.

10 JUDGE RODRIGUES: [Interpretation] Very well. Do you have any idea

11 how many times the same policemen came to the gates? How many times would

12 you see one and the same policeman coming to the gates, if you have any

13 idea?

14 A. I'm afraid I can't give you an answer to that question.

15 JUDGE RODRIGUES: [Interpretation] Very well.

16 A. It's difficult to recognise people, and one forgets. All I wanted

17 was to get through the day. Most of the people, they would take over.

18 Some people were turned back. That was their job. That's all I know

19 about it.

20 JUDGE RODRIGUES: [Interpretation] Very well. We'll continue. You

21 told us, Mr. Stojakovic, that Obrad Popovic was your sole source of

22 information. Why are you saying that?

23 A. Because I had no contact with anyone else. As soon as he would

24 arrive, I couldn't wait for him to come to go home. And then from home, I

25 would come back to the same work post. But Popovic just spoke to me about

1 Drago Prcac, that he was a great neighbour, a decent, a very decent man

2 and so on. That's all the conversation I had with Popovic.

3 JUDGE RODRIGUES: [Interpretation] Did you know Prcac before the

4 16th of July?

5 A. I knew him by sight for about two years prior to that.

6 JUDGE RODRIGUES: [Interpretation] Very well. Another question.

7 Do you know whether any other people came to that collection centre

8 against their will apart from Mr. Prcac?

9 A. I don't know that.

10 JUDGE RODRIGUES: [Interpretation] Then why is it that you only

11 know about Mr. Prcac? Why was Mr. Prcac, for you, a special case? Do you

12 understand my question?

13 A. I do. Because Popovic told me about him, that he didn't want to

14 go there as he was a pensioner. Now why, I don't know. And he also said

15 that he was forced to do it.

16 JUDGE RODRIGUES: [Interpretation] Did Mr. Obrad Popovic also tell

17 you about other people who came there against their will?

18 A. He didn't.

19 JUDGE RODRIGUES: [Interpretation] You said, in response to a

20 question from my distinguished colleague, Judge Fouad Riad, that no one

21 said anything to you, that you didn't know because people didn't talk to

22 you. My question is: Did you ask people questions? Did you ask

23 questions of others?

24 A. No questions did I ask anyone, if you're asking me regarding the

25 collection centre, nor did I have any interest in it.

1 JUDGE RODRIGUES: [Interpretation] But you yourself, did you ask

2 yourself questions about what you were seeing?

3 A. I asked myself why all this had happened in our area. I found it

4 very hard, generally, the whole situation which did us so much harm.

5 JUDGE RODRIGUES: [Interpretation] In relation to the Omarska

6 centre, the collection centre, what were your questions in your mind?

7 What were the questions in your mind?

8 A. Linked to Omarska, nothing; but generally, I found it very hard to

9 accept the situation we found ourselves in in that area.

10 JUDGE RODRIGUES: [Interpretation] It's true that Obrad Popovic

11 told you many things, but your eyes and ears, did they tell you anything?

12 What was your own impression of what was happening in there, a place you

13 knew well, where you had always worked in that mine, and suddenly this

14 place is being transformed into something else? What did your eyes and

15 ears tell you regarding this new reality? What was your own impression of

16 what you were seeing?

17 A. A hard one, to see such beauty being turned into something awful,

18 throughout the area, including this particular spot.

19 JUDGE RODRIGUES: [Interpretation] Very well. Thank you,

20 Mr. Stojakovic. We have no further questions for you. Thank you very

21 much for coming, and we wish you a safe journey home and I hope you will

22 be able to enjoy your retirement.

23 Will the usher accompany the witness out, please.

24 THE WITNESS: [Interpretation] Thank you.

25 [The witness withdrew]

1 JUDGE RODRIGUES: [Interpretation] So Mr. Jovan Simic and

2 Mr. Masic, I think we will now have our last witness.

3 MR. J. SIMIC: [Interpretation] Mr. Dusan Lakcevic is our last

4 witness indeed, Mr. President.

5 [The witness entered court]

6 JUDGE RODRIGUES: [Interpretation] Good morning. Can you hear me?

7 THE WITNESS: [Interpretation] Yes, I can.

8 JUDGE RODRIGUES: [Interpretation] Please read the solemn

9 declaration given to you by the usher, please.

10 WITNESS: DUSAN LAKCEVIC

11 [Witness answered through interpreter]

12 THE WITNESS: [Interpretation] I solemnly declare that I will speak

13 the truth, the whole truth, and nothing but the truth.

14 JUDGE RODRIGUES: [Interpretation] Please be seated. First of all,

15 let me thank you for coming here. We have agreed that your report will be

16 considered as the examination-in-chief, so we will immediately proceed to

17 the cross-examination by the Prosecutor. And I think it's Ms. Susan

18 Somers, is it not, who is going to put questions to you.

19 MS. SOMERS: Thank you, Your Honour.

20 Cross-examined by Ms. Somers:

21 Q. Dr. Lakcevic, I would like to ask you if you have ever, during the

22 time of the conflict in Prijedor, if you have ever made a trip to the

23 region to study what was happening on the ground. If it would help you, I

24 could put a time frame. Perhaps it might -- you can tell me ...

25 A. I did not have occasion to go there, for the simple reason that I

1 live in Belgrade, in the Federal Republic of Yugoslavia. But as a former

2 policeman in the Federal Republic of Yugoslavia and as a member of many

3 expert teams who designed the legal rules and regulations for all the

4 republics of the former Socialist Federal Republic of Yugoslavia, I

5 presented my expert opinion on the basis of those laws, rules,

6 instructions, and other bylaws. So let me say once again: I did not have

7 occasion to go there, and I didn't go there.

8 Q. Thank you, Dr. Lakcevic. Can you tell us, please, about your

9 police officer experience. Were you an actual on-the-ground policeman,

10 and if so, could you give us a little bit of background about your police

11 experience?

12 A. I can say that in 1968 I joined the Republican Secretariat of

13 Internal Affairs, that is, the Ministry of Internal Affairs of Serbia, and

14 as a graduate lawyer, and later I got a master's degree and eventually a

15 doctoral degree on the internal affairs bodies and their activities. As

16 such, I was in the ministry. I was not a regular street policeman, in

17 view of my educational background, my qualifications, but I participated

18 in the training and advanced training of all workers in the bodies of

19 internal affairs, which means regular policemen, inspectors, as well as

20 officers of the State and National Security Service. Therefore, my

21 experience was that of a theoretician. So, as I was saying, my experience

22 and knowledge was linked to information I received from the ground and

23 also by reading literature, regulations, and my involvement in expert

24 teams.

25 Perhaps I should add that I was also a member of an

1 inter-republican commission in the Socialist Republic of Yugoslavia, which

2 was composed of representatives of all the republic secretariats or

3 ministries of internal affairs of the republics, and we worked on the

4 unification of rules and regulations. So that in all the republics, the

5 law on internal affairs and the rules of service for the Public Security

6 Service and other bylaws were almost 100 per cent identical for all the

7 republics.

8 Q. Thank you very much, Doctor. Could you perhaps tell us, then,

9 just to make sure it's clear: Then your principal location, your

10 principal experience, was the Republic of Serbia. You were based pretty

11 much out of Serbia and did your work from there; however, you did

12 participate in inter-republic activity? Would that be a fair statement?

13 A. I would partly agree with your statement because as a person who

14 was involved in research, I had to draw from the experiences of the

15 republic secretariats in other republics and working jointly with them in

16 the federal secretariat for internal affairs of the former Yugoslavia, we

17 held frequent meetings, professional meetings, symposia, workshops. So I

18 cannot say that I was uninformed but my main experience was based on that

19 of the Republic of Serbia.

20 Q. You indicated, Dr. Lakcevic, that you received information from

21 the ground, I think in the form of regulations, and other types of

22 information. When you say "from on the ground," what were your sources of

23 information, particularly as to what was taking place in the area of

24 Prijedor municipality, let's say from late 1991 to August, the end of

25 August 1992? How did you find out what was transpiring on the ground?

1 A. As far as my sources from Bosnia-Herzegovina are concerned, and

2 your question itself, they were based on media and TV reports because I

3 had no need, wish, or intention to collect other information.

4 Q. May I ask you, please, which media you were relying upon and, of

5 course, which television stations you followed for your news?

6 A. If you insist on that, I will tell you it is mostly Radio

7 Television of Serbia.

8 Q. Did you at any time have either the interest or the opportunity to

9 collect information from Sarajevo, or perhaps Croatia or Slovenia?

10 A. No, and I didn't need to.

11 Q. Why is that that you didn't need to? Would you have perhaps found

12 a balance in your information collection process that would have been

13 helpful if you had done that?

14 A. At the time, I didn't know that this would happen. Otherwise, my

15 attitude would have been different probably. As I was living in the

16 Federal Republic of Yugoslavia and all the republics it consisted of, as I

17 am an elderly man, I simply could not imagine that it could break up so

18 there may be certain emotional reasons why I didn't show any interest.

19 Q. And when you say, "I didn't know this would happen," are you

20 referring to the breakup of Yugoslavia or the events that occurred in

21 Prijedor and in the various municipalities that comprised Republika Srpska

22 on the territory of Bosnia-Herzegovina?

23 A. Yes. Yes.

24 Q. To which are you referring, the breakup or the other events?

25 A. In any event, this relates first and foremost to the breakup of

1 Yugoslavia and everything else follows from that. Furthermore, I was not

2 in a position, nor was it my aim or intention, nor did I have the

3 resources to follow what was going on there.

4 Q. Did you have colleagues out of the republican ministries in

5 Sarajevo?

6 A. Yes, before the breakup of Yugoslavia.

7 Q. Would you be good enough to name some of those persons with whom

8 you had professional contact from Sarajevo or from the territory of Bosnia

9 generally?

10 A. No. No.

11 Q. You won't name them or you don't remember them?

12 A. My answer is the following: After all, I was a university

13 professor at the police academy, and without any false modesty they all

14 knew me. And if I knew them I only knew them by their nicknames but not

15 really personally.

16 Q. Can you not think of one professor from Sarajevo whose name might

17 stand out as an -- a peer?

18 A. You see, I can remember professors from the faculty of law but

19 many of them have passed away. As for Bosnia-Herzegovina, as far as I

20 know, it only had a secondary school for internal affairs and I didn't

21 have any contact with them as my scope of interest and that of my

22 workplace was a college and institute of state security in Belgrade which

23 had the status of a federal institution.

24 Q. Dr. Lakcevic, are you now or have you been politically active in

25 matters concerning Serb interests or generally other aspects of daily

1 life? Are you a politically-active person?

2 A. I did not participate because I didn't want to and, on the other

3 hand, the law on internal affairs prevented me engaging even in trade

4 union activities never mind political activities. So I did not have any

5 wishes to get involved and also the regulations prevented me from being

6 involved.

7 Q. Would you be able to tell us, drawing on your expertise, whether

8 or not that law on internal affairs may also have prohibited the direction

9 of policing and criminal justice activities by a particular political

10 party, let's say, the SDS. Would that have been permitted under that

11 law?

12 A. I was not on the ground, that is, the area you are referring to,

13 Prijedor and the Republic of Bosnia-Herzegovina so I cannot say. All I

14 can say is as regards Serbia, that there was no such instances. I am

15 talking about the Republic of Serbia where I worked. As for

16 Bosnia-Herzegovina, I really cannot tell because I was never present

17 there, nor did I have occasion to hear about it from the mass media or

18 from any other source. But I must make one point that professional

19 policing, crime prevention, public law and order maintenance, these things

20 are linked to the public security service and, of course, also the state

21 security is responsible for protecting the constitutional order, and that

22 is why it is called the state security service.

23 Q. But going back to your point about the law and internal -- I think

24 it was internal affairs, strictly theoretically, I think, which you

25 indicated would be the position from which you would be discussing things,

1 could a political party direct the activities of policing institutions, of

2 law enforcement institutions?

3 A. I am a man who observes the law so my response is in line with

4 that. I look at the service professionally, its obligations under the

5 constitution and the law on internal affairs. Therefore, I could perhaps

6 give you an answer which might satisfy you if I had been there.

7 I am saying with regard to Serbia that political parties are

8 outside the internal affairs bodies. I did study the laws of the United

9 States of America and Great Britain, and the question of professional

10 service when a new government comes into power, should the minister be

11 changed or should the same professional remain? I must say that

12 professional people may remain, governments may fall and change, but the

13 professionals in the police stay on.

14 Q. So a professional should be able to remain irrespective of

15 ethnicity or religious preference, would that be your position? In a

16 change of government, in a peaceful government, a professional should be

17 able to remain irrespective of ethnicity or other immutable

18 characteristics?

19 A. You see, it is difficult to answer that question. I am talking

20 about a normal state of affairs, and a war is an abnormal state of affairs

21 when everything changes. Under normal conditions, what I said regarding

22 professionals stands.

23 Q. Doctor, maybe that would help us to understand then if your paper,

24 your expert statement, was written really about policing relationships and

25 matters during normal conditions as opposed to what you would call

1 abnormal state of affairs which is war. Would that be a fair way to

2 describe the tenure of the paper?

3 A. That's right.

4 Q. If that's the case, perhaps then we could ask -- and again drawing

5 on your considerable expertise, there has been some evidence given that a

6 number of the -- that at least one of the accused did not wish to

7 participate in a role at Omarska Investigation Centre or camp and the

8 question had been asked, well, what can a person do when faced with,

9 perhaps, such an order? Can you tell us, please, in your experience as a

10 professor of policing matters, what is your understanding of what a

11 person, a police person can do if faced with an illegal order or perhaps

12 an order which might result in the commission of a crime? What would

13 you -- what do you understand the options of that individual to be?

14 A. My answer to that question would be the following: I wrote my

15 expert finding on the basis of the law on internal affairs and the rules

16 of service and instructions on the work of the criminological and

17 technical centre, so that your question -- I cannot comment on your

18 question, or rather, give an answer, for the simple reason that I do not

19 know what the situation was like there: who was there, who worked there,

20 what they did. I don't know the organisational structure. I'm not

21 familiar with the organisational structure in that place at that time.

22 But, of course, I remain firm and adamant in what I state here, and that

23 is the police structure. So we can discuss the structure of the police,

24 the authorities and competencies of the active-duty policemen and the

25 reserve force, and other matters, but not whether he could have, should

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14 and the English transcripts.

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1 have, and things like that. I would have to know the concrete situation,

2 with all the parameters that that entails, so that then, as

3 somebody delving in those problems, I could give you my professional and

4 truthful opinion.

5 MS. SOMERS: Would the usher be kind enough to distribute

6 Prosecution Exhibit, which would be 3/275A in the Serbo-Croat edition, and

7 3/275B in the English translation.

8 Q. Before you, Dr. Lakcevic, is a publication from the Ministry of

9 Internal Affairs of the Socialist Republic of Bosnia-Herzegovina out of

10 Sarajevo, dated September of 1991.

11 MS. SOMERS: For the Chamber, there is a declaration attached to

12 it indicating the source from which the Office of the Prosecution received

13 the regulations.

14 Q. And I would ask if you would turn your attention to number --

15 they're numbered paragraphs, and I'm looking at paragraph 40. In the

16 English it's on page 9 and in the Serbo-Croat it's on page 11.

17 Doctor, just so that you know, this was published officially, and

18 this is part of the body of regulations of what was the Socialist Republic

19 of Bosnia-Herzegovina and would have persisted at the time, roughly at the

20 time in question, and I want to ask your opinion about two points.

21 First of all - excuse me - but looking up, employees here would be

22 referring to sworn and non-sworn. But on point 39, it does say: "Orders

23 must be legal, complete, timely, and clear, so that employees can

24 understand them." And then it does go on to say: "The superior who

25 issues orders must secure the means necessary for the successful

1 completion of an official task."

2 Moving down to paragraph 40:

3 "Employees must execute the orders of their superiors. If an

4 employee believes that an order is not in accord with the law, he must

5 warn the superior officer who issued the order of this. The employee must

6 perform the order when it is repeated in writing, and at the same time

7 inform the immediate senior leader or the appropriate organisational unit

8 at ministry headquarters. In this instance, the employee shall be

9 relieved of responsibility for the execution of the order."

10 Moving on:

11 "If execution of the repeated written order would be a criminal

12 offence, employees shall refrain from its implementation and inform the

13 immediate senior leader or the appropriate organisational unit at ministry

14 headquarters. Employees who carry out such an order shall be held

15 responsible, as well as the superior who issued it."

16 Are you familiar generally with this type of regulation? Is this

17 something that you would have seen as well in Serbia in policing

18 practices?

19 A. Your question and my answer must be given shape to, identity.

20 Now, in all democratic police forces in the world, what you read out,

21 something similar exists in all democratic police forces. But let me

22 point out that these instructions applied to a normal state of affairs,

23 peacetime. For me to be able to answer your question, I can just say, in

24 general terms, in principle, this is quite clear; the text is quite clear

25 and its interpretation is clear. But the difficulty comes up when we talk

1 about the specific conditions in Prijedor. I don't know what order was

2 issued, how it was issued, to whom it was issued, whether anybody opposed

3 the order, whether they contacted their superior. But, as I say, the text

4 is clear enough and can be interpreted in the following manner: that an

5 order which, if executed, is a criminal act, as it says, the employee must

6 inform his superior and will be -- will not be responsible, shall be

7 relieved of responsibility for the execution of the order. But as I state

8 again, let me emphasise: This applies to peacetime, to a normal

9 situation, when there is no war.

10 Q. As you indicated, so does the text of your expert statement.

11 That's my understanding; correct? Excuse my voice.

12 A. Could you just clarify what you just said? When you referred to

13 my expert report, what portion? What do you mean?

14 Q. Relationships that you speak of, structures, these again, as I

15 believe earlier you said --

16 A. Yes. Yes.

17 Q. Okay. I'm sorry.

18 A. Let me also point out -- I do apologise for interrupting, but I

19 gave careful analysis to the matter, and I can tell you - and I'm sure

20 that you have been here long enough to know the case and the

21 organisational structure of the ministry - but if I start out from the

22 nucleus, the smallest possible unit, the smallest denominator in the

23 police is the commandeer, the leader; then we come to the police station,

24 the public security service, the security centre, up to the ministry, and

25 that is the chain. And that commandeer, the leader, he could not

1 discipline a policeman who does something against the law. What he would

2 have to do would be to inform the commander of the police station, who is

3 the sole responsible person to take further measures. But to

4 discipline -- how to discipline the policeman, a report is made, there is

5 a disciplinary commission and a disciplinary prosecution and defence. So

6 that commandeer of the police station, the leader of the police station

7 himself, can only suspend the policeman and file a report to the competent

8 organs for further procedure to be taken if he considers that the employee

9 in his conduct has violated his work duty and work responsibilities.

10 Q. Then, Doctor Lakcevic, as I understand it, though, looking at this

11 from the context in which it was written, there does, at least on paper,

12 exist an option for a police officer, of any rank, who believes an order

13 to be illegal or criminal, not to carry it out. Is that -- would you say

14 that is a correct interpretation of what these provisions say?

15 A. I think that is clear enough. But let me emphasise once again:

16 That applies to peacetime. I wasn't there during the war. I didn't have

17 occasion to be present and see individual cases for me to take those cases

18 and give a concrete explanation and interpretation. So let me go back to

19 time, the time that this was compiled and written and the time that we're

20 talking about. Those are two quite different situations and completely

21 different circumstances.

22 Q. Would you agree that, whether in peace or in war, murder is a

23 crime, rape is a crime, physical assault is a crime, looting, plunder is a

24 crime, torture, or any of the assaults that go into torture? Are these

25 all crimes, irrespective of whether in war or in peace?

1 A. Well, it's like this: I have come here as an expert to interpret

2 my expert findings and opinions, so may I ask you to conduct our

3 discussion in that direction, to focus your questions on that? But there

4 are people who have probably come here and who have stated their opinions

5 with respect to the concrete behaviour of individuals and groups, and that

6 there are wartime instructions as well regulating the question of abiding

7 by war laws and international humanitarian laws and all the rest of it,

8 other matters of that kind, but that is outside the scope of my expert

9 report and expert findings and expertise in this case. But as a man, as

10 an individual, I can, of course, say that war crimes are war crimes. Now,

11 whether they occurred or did not occur, I can't say. I wasn't in the

12 field. So if you were to ask anybody else, we could answer the same

13 thing. They would all say, everybody would say, that we are against war

14 crimes. That, of course, is true, but that, as I say, is outside the

15 scope of my expert report.

16 Q. Well, the scope of your report does include comments about reserve

17 militia members, I'm looking at page 8 in the English, who engage in the

18 affairs and tasks of public and national security, and that they should be

19 authorised officials. Now, as an authorised official so engaged, if a

20 person engaged in murder, rape, pillaging, plundering, assault, is there

21 any construction in your mind as a professional or as an academician that

22 would take those acts outside of the criminal realm, whether in war or in

23 peace?

24 A. When I said in my -- spoke about the reserve police force in my

25 report, its involvement and its authorisations and competencies that they

1 be engaged in extraordinary situations or in the case of fires, floods,

2 earthquakes or natural disasters, and that they have the authorisation of

3 an official person, and that their rights and duties emanate from that,

4 then I should like to stress that it is possible to provide a complete

5 answer with respect to each of these individual points if you have the

6 necessary parameters at your disposal which means how old the person is,

7 what education he has, whether he was in the police force or not, and so

8 on and so forth. And in that connection, whether he was performing his

9 duties in an adequate manner, in the right manner.

10 And an answer as to whether a crime is a crime, I don't want to go

11 into that because we are a part of the world, a part of Europe, and a part

12 of everything else, and we apply the rules and regulations and laws. So I

13 can't answer each concrete case, but on the whole, globally speaking, I

14 think you have my answer in my report.

15 Q. Looking back to a time with which you may be more comfortable

16 which would be peacetime, there was an affidavit given on behalf of one of

17 the accused which mentioned, I'm looking at the affidavit of Rade

18 Knezevic, "I have to mention, however," says Mr. Knezevic, "that on the

19 territory of the former Yugoslavia, force was often used in police work

20 during investigations in order to extract confessions and suchlike."

21 In the course of your research or, perhaps, consulting, have you

22 found this to be the case throughout Yugoslavia or perhaps in your

23 experience in Serbia?

24 A. My experience in the former Yugoslavia, the Socialist Federal

25 Republic of Yugoslavia, and especially in Serbia as well as my contacts

1 and involvement in the interrepublican commissions and committees where we

2 compiled laws and by-laws or perfected them, as part of Europe and the

3 world, let me underline we took over legal provisions which means that the

4 law states that any abuse of professional position or violation of the law

5 represents a criminal offence.

6 Our police force, I can state quite clearly, especially when we

7 started proper training which is as of 1968 in the former SFRY, means that

8 we educated and trained the kind of police force and I say this with no

9 false modesty, a police force whose basic focus was the relationship

10 between the police and citizens. And I can say with full responsibility

11 that in the former Socialist Federal Republic of Yugoslavia, the Yugoslav

12 police was one of the efficacious police forces in the world.

13 And I can assure you that we received commendations and awards

14 from Interpol and even from the United States of America. They gave us

15 financial and other resources to fight against drugs, car thefts,

16 terrorism, terrorist acts, and so on and so forth. And the reason why we

17 were so effective in our police organs and force was so efficacious, I say

18 with full responsibility, was that we built up the police force taking

19 care of this relationship between the police and the civilians and

20 citizens, and citizens would report when they thought crimes had taken

21 place.

22 Now, of course, crimes, rapes and so on always happen. They will

23 happen in the future, but if anybody is found guilty of any crime, they

24 are excluded from the police force and they have to bear the

25 responsibility for their conduct. I was a disciplinary judge in MUP in

1 Serbia and I was rigorous in tracking down the perpetrators. So

2 individual -- you always had individual cases, of course, and you -- but

3 let me explain once again to you as the Honorable Prosecutor, and that is

4 that based on police reports, I can go on to conduct investigations and to

5 order investigations to be carried out. I can order the search of

6 apartments to collect data and information, but in that phase of the legal

7 proceedings, that -- the line there is from the police to the prosecutor

8 and to the investigating judge.

9 Once an investigating judge completes his investigation, he is

10 duty-bound to pack up the statements received from the police. They are

11 sealed in an envelope and only in exceptional circumstances can those

12 statements be used in a case in chief. And so if individual cases did

13 occur when somebody used force, coercion, or duress, this can be used

14 sometimes. But in the examination-in-chief, the man can say "I did that

15 under false, under duress."

16 So we always respect the rules and procedures, and this is

17 incorporated in the code of criminal conduct, law on criminal

18 proceedings.

19 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, perhaps this

20 would be a good time to take a break. We'll adjourn for 30 minutes. I'm

21 going to ask the usher to accompany the witness out of the courtroom first

22 before we take a break. A 30-minute break.

23 --- Recess taken at 10.52 a.m.

24 --- On resuming at 11.38 a.m.

25 JUDGE RODRIGUES: [Interpretation] Please be seated. Please take a

1 seat.

2 Ms. Susan Somers, please continue.

3 MS. SOMERS: Thank you, Your Honour.

4 Q. Dr. Lakcevic, your response or your answer to my question, which

5 was -- I discussed an affidavit wherein the affiant mentioned that on the

6 territory of the former Yugoslavia, force was often used in police work

7 during investigations in order to extract confessions and suchlike. Your

8 answer was long and informative but not exactly responsive. If I can just

9 ask you if you are able to reduce it or distil it to a yes or no. Was it

10 an accepted practice in police work in the former Yugoslavia, as you knew

11 it, for force to be used upon prisoners or detainees in the course of

12 interrogation or investigation? If you are able to get it down to a yes

13 or no, with an explanation, I would be very grateful.

14 A. Regardless of your wish, I do apologise, but I have to say that

15 that is not true. First of all, the law and regulations, and also the

16 control over people engaged as operative workers - that means when

17 suspects are being taken into custody, or if persons are being arrested

18 and taken to the competent investigating judge - the behaviour of

19 policemen has to be in accordance with the rules of service and the law,

20 and that means that they have to respect human dignity. I deny Knezevic's

21 statement that force was resorted to frequently. There may be individual

22 exceptions, and those who acted in that way were sanctioned, that is,

23 those who resorted to methods of force, threat, and deceit, and I

24 underline deceit, deception.

25 Q. Thank you for your clarification, Doctor. You have a section in

1 your report which discusses the police/army relationship, and I would like

2 to ask you for your professional views on a couple of points, please. I

3 will be referring to the content of a Prosecution exhibit which was

4 introduced during the Kos case in chief -- I'm sorry, the

5 cross-examination of one of Kos' witnesses, Skrbic, and it is Prosecution

6 3/213. Perhaps if the usher would be kind enough to put it on the ELMO.

7 Dr. Lakcevic, the individual who testified was a police officer

8 who had participated in a fairly extensive amount of training in

9 post-Dayton Bosnia and was an officer prior to the Dayton Accords. The

10 question I have of you, and if I may take a moment: This document, which

11 is signed by Stojan Zupljanin -- are you familiar with the name Stojan

12 Zupljanin? Is that name known to you?

13 A. No, it is not known to me.

14 Q. This document signed by this individual, whose name is known to

15 this Chamber, states:

16 "Pursuant to a request from the 2nd Krajina Corps, a military

17 corps command, I hereby order you to engage the following number of police

18 members from SJB station to carry out assignments in the area of Jajce and

19 to be subordinated to the command in the area of responsibility," and then

20 it breaks down by municipality the number of police officers and it goes

21 on to describe essentially what will be done.

22 Are you able to give us some insight into how often, in your

23 experience or through your research, police are subordinated to the

24 military, put in their actual command or under their command to carry out

25 what would be arguably considered military actions?

1 A. Unfortunately, I have no experience in that area, which means that

2 both my research and my opinions were based on the times when there was

3 peace. The date here is the 26th of August or something, 1992, so this is

4 wartime, so I am unable to tell you. In peacetime, no such relationships

5 may exist, nor any such orders; neither may they be issued, nor may they

6 be carried out in peacetime.

7 Q. I'm sorry. I want to make sure I understood. You said that in

8 peacetime "I'm unable to tell you," full stop. Okay. I'm sorry. Just so

9 that we understand. In other words, are you saying that in peacetime, no

10 such relationships exist, as have just been described to you in this

11 document, that police would not be subordinated to military units?

12 A. No. My answer is no. In the former SFRY, such a document could

13 not be considered valid nor could it be implemented. And I really don't

14 know, these are very specific things that you are asking me about, even

15 the visibility is poor, the legibility. But I abide by what I said. In

16 peacetime, certain relationships exist but there is no subordination of

17 the police to the army in the execution of certain tasks except for normal

18 cooperation and exchange of information between the Ministry of the

19 Interior and the army.

20 Q. I would also ask your opinion, Doctor, on a passage from a

21 document that is in evidence. It is Prosecution's 2/4.16 which was

22 yesterday also labelled Defence 40/5. And if I may, so as not to cause

23 too much of a stir, just read slowly the passages that I would ask your

24 input on.

25 The section of this document, so that persons who may wish to

1 look, is from the part signed by Simo Drljaca, a Prijedor official

2 doctor. In English it would be page 3 and in Serbo-Croat from page 4 but

3 this is what I'd like to ask you about. "The local authorities, army, and

4 even police were not prepared for such developments believing to the very

5 end in a peaceful and civilised agreement between ethnic communities so

6 that the problem of providing shelter and safety for employed persons

7 emerged. In such a situation, the Crisis Staff of Prijedor municipality

8 decided to utilise the facilities of the Keraterm work organisation in

9 Prijedor to accommodate those ..."

10 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Masic.

11 MR. MASIC: [Interpretation] I do apologise for interrupting, but

12 could the expert be shown this document for him to see it rather than it

13 being read out to him like that?

14 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Masic. Do you have the

15 document?

16 MR. MASIC: [Interpretation] As far as I can see, Madam Registrar

17 has prepared the document already.

18 JUDGE RODRIGUES: [Interpretation] Yes, but I was making a sign to

19 Madam Registrar to wait because I didn't know whether the expert witness

20 needed the document or not. I think it is quite sufficient to hear it

21 being read. You have the document and you can check whether Ms. Susan

22 Somers is reading everything in the document or not because after all,

23 that is what is important. For the witness to be able to answer, in my

24 opinion, it is sufficient for him to hear and then be asked the question.

25 Otherwise, we're wasting a lot of time.

1 But Ms. Susan Somers, I must tell you that the witness has

2 repeated many times that he did not review or study the situation during

3 wartime. But we are here to study the wartime situation so maybe we are

4 losing a lot of time.

5 Mr. Masic, I wish to economise with the time, but if you really

6 think it is indispensable, you can have it given to the witness if that is

7 your opinion. Do you insist, Mr. Masic, on the witness being given the

8 document?

9 MR. MASIC: [Interpretation] You see, Your Honour, I do not

10 insist. However, if we are asking a question of the witness about that

11 period, then the witness should see the document. I quite agree with you

12 that the expert has said several times that he cannot speak about that

13 period because it is a period that he did not study. However, since the

14 Prosecution is insisting on him referring to that period, it would only be

15 fair to give him the document for him to be able to see it and comment on

16 it.

17 JUDGE RODRIGUES: [Interpretation] Yes. Madam Registrar, maybe it

18 is better, to remove all doubt, to give the witness the document. If that

19 is so, Mr. Masic, I don't understand why the witness has come here because

20 after all, we are here to analyse the wartime situation and not the

21 other.

22 The Prosecutor is entitled to ask questions about that time period

23 because that is what interests us.

24 So Madam Registrar, have you found the document?

25 MS. SOMERS: I have the B/C/S available. I do not know the

1 witness's English reading capabilities.

2 JUDGE RODRIGUES: [Interpretation] Perhaps we need to have the

3 English version on the ELMO as we are going to discuss it. Let us have

4 the English version on the ELMO because after all, the public is entitled

5 to be able to follow us.

6 MS. SOMERS: Madam Registrar, it was 2/4.16 or D40/5. They had

7 both numbers assigned. It was from yesterday. It's the report -- it may

8 be part of it was from Vojin Bera. It was his commission report on the

9 camps and the activity and I'm looking at the section at the back -- yes,

10 which is Simo Drljaca's section. It's the very last section attached to

11 the major part of the report in English.

12 There appears to be difficulty finding it in English. My copy is

13 very marked up, otherwise I would volunteer it, but it's quite marked.

14 There may be some confusion and I believe it's my fault. It was marked,

15 I'm sorry, I'm sure it's my fault, 3/292 and that's -- that's the one. I

16 have a different number underneath it, and it's entirely my fault. I

17 apologise for the waste of time. And the section at the back where

18 Drljaca signs off. On English it would be on page 3 of the Drljaca

19 section. We found it.

20 Q. I'm looking, Doctor, at the section in the English on page 3 which

21 discusses, it says, "In such a situation, the Crisis Staff of Prijedor

22 municipality decided to use the facilities of the Keraterm work

23 organisation in Prijedor to accommodate those captured, under the

24 supervision of the employees of the Prijedor Public Security Station, and

25 the Prijedor military police. The Prijedor Public Security Station, aware

1 of its personnel possibilities and the seriousness of the newly-emerged

2 problem, informed the Banja Luka Security Services Centre and the command

3 of the Banja Luka Corps and asked for help in specialised personnel to

4 operatively process those captured. The Banja Luka Security Services

5 Centre and the command of the Banja Luka Corps became actively involved in

6 resolving the situation. They sent a large number of experienced

7 professionals to Prijedor whereupon mixed teams consisting of members of

8 national, public, and military security were established, with the task of

9 carrying out the operative processing of captured persons and determining

10 for each individual the degree of personal responsibility in the armed

11 rebellion."

12 I'll stop there because those are the points which I'd like to ask

13 you about. I believe you used the term earlier in your testimony

14 "operative" "operative processing," when you talked about custody, the

15 custodial process. Are you able to draw on your experience from any other

16 situations with which you may be familiar wherein the army and the

17 security services joined in -- the state security services joined in with

18 the police to handle custodial investigation of individuals, such as is

19 described and acknowledged here by Simo Drljaca? Can you help us a bit

20 with that, if you have that in your experience?

21 A. I have to apologise first and say that in English it says

22 "experienced professionals," and in the Serbian language it says

23 "experienced employees." I think the good term would be "experienced

24 policemen," or some other expression. But in answer to your question, I

25 can say that I was not in the area of combat, so that with regard to joint

1 coordinated activities, I'm unable to say anything. But in any event, it

2 should be pointed out that the crime principles, crime prevention

3 principles, are applied, and the Law on Criminal Procedure, in any event.

4 Laws which existed in the former SFRY, and I assume that in this period

5 they were applied in this area too, that is, throughout the territory of

6 the Republic of Bosnia-Herzegovina. That is to say that the rules of

7 conduct and the principles of operational procedures and tactical work

8 undertaken by policemen are clearly defined by the rules of service, as

9 well as by the provisions of the Law on Criminal Procedure.

10 It is my opinion that it is not so important to what extent they

11 cooperated, but rather whether the rules of crime prevention and the rules

12 of procedure were observed. I'm saying this on the basis of my own

13 thinking and not based on the concrete situation.

14 Q. Doctor, in the course of your gathering information about the

15 situation on the ground during that time period, which sources, I believe

16 you mentioned, were media and television, did you come to any opinion

17 about the powers of the Crisis Staff, or are you familiar with the Crisis

18 Staff as the acting organ of government in situations where normal

19 peacetime governance may not be in effect? Have you analyzed any criminal

20 laws anywhere that took place under a Crisis Staff?

21 A. My answer would be as follows: I did not have occasion to have

22 all these parameters, but that does not mean that that will not be the

23 subject of my own interest or the interest of somebody else with regard to

24 that, and not only at the place we are identifying it, but in other areas

25 as well. My answer, therefore, is that I did not have occasion to

1 investigate and examine those things, for the simple reason that at that

2 time it was a war-infested area and inaccessible to me, both with regard

3 to my professional duties and because of the situation that prevailed in

4 the former SFRY.

5 Q. You mentioned in your response above, "It is my opinion that it is

6 not so important to what extent they cooperated, but rather whether the

7 rules of crime prevention and the rules of procedure were observed." Are

8 you able to comment, from any of the reading you've done or any of the

9 perhaps training you may have involved yourself in, as to whether you

10 know, during wartime circumstances, was there generally observance of the

11 rules of criminal procedure? Have you had any experience that might allow

12 you to give us some insight into the degree to which criminal procedure

13 was actually followed under those circumstances?

14 A. My answer would be as follows: I cannot give a decisive,

15 professional objective and truthful answer on assumptions. You can't base

16 any procedure on assumptions. So my answer would be along those lines.

17 That is to say, I did not enter into concrete matters, because each case

18 has its own stages, intrinsic stages. Whether they are pursued in detail,

19 how one inspector proceeds as compared to another, each individual case is

20 different. That is my opinion. So with certain facts, parameters,

21 evidence, and factors, one would be able to analyse cases, and one case

22 can be made by following the Law on Criminal Procedure and the parameters

23 thereof. One case may go along those lines, another may not, because

24 another inspector might be in charge of it. So if I were to give you -- I

25 could only give you an objective answer if I had all the facts before me.

1 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, please be

2 mindful of the time.

3 MS. SOMERS: Thank you, Your Honour. I'm narrowing my questions

4 and I'm winding down. Thank you for reminding me.

5 Q. Doctor, if criminal procedure were applicable, let's say from the

6 Republic of Bosnia-Herzegovina at the time or from the Republic of Serbia,

7 how many days could an individual be detained without charges being filed

8 or without probable cause for the arrest? Would there be a time limit? I

9 believe there is a time limit imposed. Could you comment on that? If

10 someone were arrested or charges filed.

11 A. Just a moment, please. May I take a few moments to find what I'm

12 looking for?

13 Q. Yes. If you could just be good enough to tell us from what you

14 are reading, it would be helpful.

15 A. The Law on Internal Affairs. I apologise. Yes, it is the Law on

16 Internal Affairs. I will answer your question.

17 Q. From -- I'm sorry.

18 A. Just a moment for me to take a look.

19 Q. [Previous translation continues] ... What entity?

20 A. It is the Republika Srpska, but it is absolutely identical with

21 the law which was enacted in 1992. But it is the same as the law that was

22 valid in the former Republic of Bosnia-Herzegovina during the time of the

23 former Yugoslavia. And I think that you will be -- that my information is

24 enough.

25 As for the answer to your question, the law on criminal

1 proceedings, and pursuant to that law, a police detention could last up to

2 three days, but for me to be able to understand your -- to answer your

3 question in detail, and that was why those people found themselves in the

4 investigation centre or collection centre, whatever term you are currently

5 using, and whether it was necessary for security reasons to have

6 individuals in a certain locality. The law on internal affairs allows for

7 this, but it is not treated as custody, as detention. But up until a

8 certain situation sets in. That is to say, they can prolong that period

9 and secure those individuals for as much time as the situation lasts, a

10 situation which, for security reasons, is termed to be able to jeopardise

11 the lives of people and property. So when an assessment of that kind is

12 made, and when it is found that in certain cases movement should be -- the

13 movement of people in a certain area should be restricted, and therefore

14 this cannot be treated as detention or custody, then one can proceed in

15 that way.

16 Therefore, although I do not have all the necessary facts, I can

17 claim that measures of that kind, in the aim of providing security, under

18 certain conditions and in certain situations, that is possible, without

19 having the situation treated as custody and detention. Otherwise, police

20 detention regularly, under normal circumstances, lasts for three days, and

21 the investigating judge can prolong that period for up to a month, and

22 then another month, which means two months, and the Supreme Court can

23 prolong it for up to three months, which means a total of six months.

24 Now, if we were to accept this opinion put forward by me that we

25 have had that triage, although the triage is not the right term to use

1 when you're talking about people, but if you can do this police-wise, and

2 there is no doubt that -- and that there are no suspicions that they have

3 committed a criminal act, then they can be released. But detention

4 actually exists, if they were actually in custody, police custody, three

5 days, plus the Court custody, which can go up to six months for grievous

6 crimes and for less grievous up to three months.

7 Q. Accepting that --

8 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, I apologise

9 for interrupting, but how much time do you think you have left?

10 MS. SOMERS: I had originally asked the Court for one hour. I

11 have used 26 minutes -- before the break.

12 JUDGE RODRIGUES: [Interpretation] Your time expired at five

13 minutes past 12.00 so please conclude. I don't know how you do your

14 calculations. I think you should change watches.

15 MS. SOMERS: Your Honour, I am prepared to actually close if I

16 could just --

17 JUDGE RODRIGUES: [Interpretation] Please wind up, otherwise I'm

18 going to have to cut you off.

19 MS. SOMERS: Thank you for notifying me. I did have a different

20 time, and I apologise for the difference in time.

21 Q. Dr. Lakcevic, just in summary, did you study the provisions of the

22 constitution, the criminal procedure, that were initiated by those who had

23 taken power in what is called the Republika Srpska before you came and

24 gave your -- both your evidence and when you wrote your report. Did you

25 have an opportunity to study them carefully and compare them with other

1 existing nations that have emerged from the former Yugoslavia?

2 A. My answer to that is as follows: The law on criminal procedure

3 which was in force in the Federal Republic of Yugoslavia was applied in

4 the republics as well, was in force in the republics as well which

5 separated, and some became inaugurated as states, others did not manage to

6 do that, and some of them today apply those provisions identically, the

7 identical provisions. So I am well acquainted with the provisions of the

8 law on criminal procedure as applied in Republika Srpska, the entity

9 there, in the sense of having custody and detention lasting according to

10 the police and court proceedings up to three months. For less serious

11 crimes it is in the competence of the lower courts and the district court

12 up to six months so there is no dilemma there with respect to the duration

13 of detention.

14 And the question of principles, rules and phases of criminal

15 procedure, as I say, they are identical, absolutely identical as they were

16 in the Law on Criminal Procedure in the SFRY or as they are today in the

17 laws of the Republic of Yugoslavia.

18 MS. SOMERS: Thank you very much.

19 THE WITNESS: [Interpretation] Thank you too.

20 JUDGE RODRIGUES: [Interpretation] Thank you, Ms. Susan Somers.

21 Mr. Masic, any re-examination?

22 MR. MASIC: [Interpretation] We have no additional questions, Your

23 Honour.

24 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. Judge

25 Fouad Riad has the floor.

1 Questioned by the Court:

2 JUDGE RIAD: Good morning, Dr. Lakcevic, can you hear me?

3 A. Good morning. I hear you very well.

4 JUDGE RIAD: I just want to make sure that I understood you

5 rightly. You, right from the beginning, mentioned that your information

6 was mainly -- the source of information was mainly from media and TV

7 reports of the Serbian TV especially in the period from late 1991 to end

8 of August 1992. Did I understand you rightly?

9 A. Your Honour, I didn't mention dates at all so that is not what I

10 actually said. I didn't mention August 1992.

11 JUDGE RIAD: Good. Well, I mentioned it. Is it -- I linked it

12 with it. Is it all right or in this period you had more concrete

13 involvement?

14 A. No, I didn't, because there was no reason for that. I personally

15 had no ambitions in that direction. And secondly, nobody engaged me, that

16 is to say, asked for my opinion or any more direct involvement.

17 JUDGE RIAD: And in fact, you -- to several questions you answered

18 that your answer is "... on the basis of my own thinking and not on the

19 concrete situation." And several times you mentioned that. Now, you

20 affirmed, nevertheless, that you denied what Knezevic stated that force

21 was resorted to frequently. Now, can you deny it only on theoretical

22 reasons, on your knowledge as a scholar or on concrete information?

23 A. Your Honour, I am not saying that off the bat without resorting to

24 facts and factors. I am talking about the time during the former Federal

25 Republic of Yugoslavia when that existed and where I was involved and

1 where we have records with respect to the application of force or the

2 threat of force by a policeman performing certain operative criminalistic

3 operations and their conduct and behaviour towards citizens. And to bear

4 this out, I state that the use of physical force, the use of a rubber

5 truncheon or firearms and other means, chemical or whatever, that was

6 monitored at the level of the federal Ministry of Internal Affairs

7 where -- and I denied or, that is to say, I am trying to indicate that the

8 statement made by Knezevic, I understood it in that way, that the police

9 organs, on several occasions, several times behaved -- resorted to the use

10 of force and threat in order to come by information. So at the level of

11 the federal secretariat, this was monitored and reports from all the

12 republics were monitored to see if, indeed, rubber truncheons were used,

13 physical force, firearms and so on and so forth.

14 For every instance in which this was resorted to, rubber

15 truncheons, physical force, firearms or any other means, a report had to

16 be compiled and sent into the competence superior who would either justify

17 or not justify the acts of the policeman in question, the policeman who

18 was included in a criminalistic investigation of any kind.

19 JUDGE RIAD: That's why you said that those who resorted, I'm

20 quoting you, "Those who resorted to threat and deceit among the policemen

21 were sanctioned." That it was this -- did you see this happen at that

22 time, the period we mentioned which is 1991, 1992? Because also you

23 mentioned the situation could be different in wartime.

24 A. I did not see I -- my job was a scientific approach and the

25 problems looked at in that way. And in this scientific approach, I asked,

1 I looked at the reports and analytical reports and they never had the name

2 and surname of a policeman but they would refer to them in numbers and say

3 there were five instances where firearms were used, ten instances where

4 rubber truncheons were used. And it was on the basis of information of

5 that kind and data of that kind that I said that the rules and legal

6 provisions are such that nobody has the right, in the name of the state,

7 to use force and threat or deceit of any kind with respect to suspects.

8 And that is the general principle, the general rule of constitutional laws

9 and by-laws.

10 And only if there were individual cases, and there were individual

11 cases, we can't say there weren't, but if these were manifest in the way

12 that Knezevic described, then that would mean in the former SFRY, there

13 was police anarchy and that is absolutely not true.

14 JUDGE RIAD: Now, I'm not speaking about SFRY, a great country,

15 civilised as we know --

16 A. Yes.

17 JUDGE RIAD: -- but we are speaking about a period of war which you

18 said is different and you mentioned that you, in the reports you would

19 find that mentioned numbers of policemen who used what you mentioned,

20 threat or bullets, but did you see in these reports that they were

21 sanctioned?

22 A. Yes. I did come across that, and then disciplinary action would

23 be taken and criminal action would be taken as well if it was a more

24 serious case. So if a crime had been committed either through the

25 violation of the law or abuse of one's position or competence. But for

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14 and the English transcripts.

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1 lesser offences, for misdemeanours and lesser offences, and for

2 infringement of labour discipline and the labour offences of this kind,

3 then disciplinary measures would be taken, and they could take the form of

4 the person being relieved of his duties.

5 If a crime had taken place, then that particular individual would

6 have lost his job even for less serious offences. Whereas for serious

7 offences, for crimes, they would certainly be relieved of their duties,

8 certainly lose their jobs with criminal sanctions to follow as pronounced

9 by the courts.

10 JUDGE RIAD: And this is in the light of your -- as you mentioned

11 before, on the basis of your own thinking and deduction?

12 A. I apologise. I am talking about the previous time when I had

13 statistical data from the analytical investigations and then I was able,

14 in a fully competent way, of making these observations on the basis of the

15 concrete data, that is, at the level of the SFRY, as well as on the level

16 of republican SUP. We would have information of any possible

17 infringements. And Knezevic, or anybody else linked to that period, I am

18 afraid I cannot comment, because it is not something that I'm well

19 acquainted with. But as somebody who has delved in this kind of matter,

20 regardless of whether you're going to accept what I say or not, I should

21 nonetheless like to state my views. And as I say in my report, that the

22 highly professional or most professional people are sent there, then I, as

23 a human being and as a policeman with experience in the field, I claim

24 that those people, those investigators - I don't know if that's the best

25 expression - but those investigators or people who -- were people who

1 respected the laws, legal provisions, and the rules of service. But as I

2 say, I can't answer the question with respect to each individual, concrete

3 case.

4 JUDGE RIAD: Now, you mentioned -- you spoke about the custody and

5 you said the custody was -- should be for three days and then it would

6 come out to three months through the investigating judge, or I think one

7 month, and then the Supreme Court can extend it three and six months. So

8 without a court decision or without any investigating judge, it should not

9 exceed three days?

10 A. According to the Law on Criminal Procedure, pursuant to that law,

11 police detention lasts up to three days. Afterwards it is given to the

12 investigating judge; it goes into his hands. But I presented my view here

13 without any desire to impose my opinion. What we would have to do would

14 be to read the laws on internal affairs, which take a given situation, and

15 in this particular case the collection centre, whether it is a function of

16 the investigation process or whether it is a function of another process,

17 and whether all the people who found themselves there in those collection

18 centres, being suspects - I can't say being accused of something, but

19 suspects, suspects - whether they stayed there longer, but not as

20 detainees, and what their function was. So I really can't say. But I

21 should like to ask you, if possible, to look at the provisions on the law

22 of internal affairs when the law restricts the movement of certain

23 individuals, without it being a criminal offence, whether that question

24 has been solved in those provisions. And I'm sure that this Honourable

25 Trial Chamber will look into the matter and check it out, because

1 provisions of that kind existed in the law of internal affairs of the

2 Republic of Bosnia-Herzegovina as well.

3 I think you understood me correctly, and you're quite right:

4 Police detention on the basis of a decision with the right to appeal is

5 three days, but the investigating judge can take the matter further and

6 ordain a month's detention. But as I say, for me personally, and I would

7 like to assist the Court, I would like to be of assistance to the Tribunal

8 and to help myself, and in order to be able to do that I would have to

9 have all the facts pertaining to the concrete situation. But as I say,

10 what one should do is to check it out, to see if this complied with the

11 laws and provisions of the law of internal affairs of Bosnia-Herzegovina

12 which was in force and applied to this locality and this area where we had

13 the predominance of the Serb side, and whether looking at all that there

14 were any legal provisions providing for the fact that people be detained

15 for a longer period of time without being held criminally responsible,

16 because police detention still does not imply criminal proceedings.

17 JUDGE RIAD: Thank you very much, Dr. Lakcevic.

18 A. Thank you.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge Fouad

20 Riad.

21 Madam Judge Wald, please.

22 JUDGE WALD: Dr. Lakcevic, I would like to ask you a few questions

23 about police theory and/or practice that you have observed, and we can use

24 peacetime as the basis, as you did in your report. My first question

25 would be: In any police station, department, whatever a unit of police

1 organisation would be, is it consistent with either theory or practice, in

2 your experience, that the commander, whom you spoke of a few times as

3 having the authority over that unit of the police organisation, whether or

4 not when the commander was necessarily absent or was not there, somebody

5 else would be authorised in his place to give orders or to do what was

6 necessary in any emergency that was not covered by previous orders that he

7 may have issued; in other words, that there would be somebody in command

8 in his necessary absences? Would that be consistent with the police

9 structure, theory, and practice in peacetime?

10 A. With all due respect, madam, I must make a slight digression. We

11 have to make a distinction between a police station and a police

12 department.

13 JUDGE WALD: Yes, I'm aware of that. But I'm asking you -- you

14 can address both, but I'm quite aware of the difference.

15 A. Yes. I do not know whether you know that in the police station

16 there is the commander, there is his deputy, and two, three, or five

17 assistants, depending on the problems, the size of the territory,

18 et cetera. A station may be situated in an industrial town where, the

19 number of personnel, including executives, will be more numerous. There

20 can be the chief of the shift on duty, patrols, and so on. All those

21 stations are divided into security sectors. A sector is a Latin word

22 meaning a segment of a circle, and in that sector we have a person who

23 leads the sector. Then the sector may cover a local community. It is

24 lower than the municipality, the lowest possible territory unit, and it

25 covers this one or possibly two local communities. And in that sector

1 there is the patrol activity and policemen on the beat. These patrols may

2 consist of two or three men on foot; they may also use a car; in some

3 countries, helicopters and ships as well. Then the other group go on

4 foot, policemen.

5 But that is not the problem, as I understand it. When the

6 commander is absent, for one reason or another, then his deputy can take

7 over, or his assistant. However, when we are dealing with a department of

8 the police station, a department that is detached, displaced, outside the

9 police station, in that case we have a leader or commandeer, commander,

10 and a certain number of policemen in uniform. They may be a crime

11 technician and an operative who would be in civilian clothing. If a

12 criminal act were to occur, they would be there to react. However, he

13 does not have his deputy; he has a policeman on duty. He is not a shift

14 leader; he is simply the policeman on duty, and he should keep a record,

15 such as the diary of the duty service. Everything has to be entered into

16 that diary.

17 JUDGE WALD: If I may interrupt, in the interests of time here.

18 Let me pose my -- let me pose my question. I understand the difference

19 between a department and a station, and a department may normally not have

20 a deputy. My question is more of a both theoretical and practical

21 application. I have had a fair amount of experience with the police

22 organisation in the American system, and I know that however small a unit

23 may be, and it may have only one commander and five foot patrolmen or

24 whatever it is, that there is usually some mechanism when the commander is

25 temporarily out of duty. If he's hurt in an automobile accident, if he

1 simply cannot be there, there is some provision made for someone else in

2 the department to be able to take over, otherwise you have

3 absolutely -- you have an anarchy. I'm simply asking you if in the theory

4 or practice that you're familiar with, there isn't some equivalent. If

5 the commander is simply out of operation, what happens? It isn't enough

6 to say you make a diary of it. If you have a fire, a riot, while he's out

7 of operation, does not somebody have to be in command to give orders at

8 that point, even if he doesn't have a title called deputy? I don't

9 understand how police operations can operate otherwise. Maybe you can

10 help me out.

11 A. I should like to thank you, because your question will allow me to

12 answer your question more easily than I thought originally. Because you

13 said there must be a mechanism, but this mechanism need not necessarily be

14 just a man, or it could be reduced to communications. What I'm saying is,

15 a policeman is a man who has the authority and the training to act.

16 The example that you have mentioned, in the case of a fire, the

17 duty officer who has been informed that a fire has occurred, he informs

18 the fire brigades, or fire police force, as it is called, who will come to

19 deal with it. On the other hand, if the senior executives of the police

20 wanted to transfer my authority - let me say I was the commander - then in

21 my absence they would have designated a deputy. This commander, during

22 his working hours, is duty-bound to carry out all tasks to designate who

23 comes to work, when, who will patrol which area, et cetera, and the

24 telephone is the aid by means of which this officer on duty can call up

25 the commander. If he's sick or absent, then he will inform the police

1 station, where also there's a duty service round the clock, and the lowest

2 possible executive there is the assistant commander. He would be third in

3 rank, the commander being the first, the deputy second. So one of the

4 assistants has to be there. Communication devices exist, and they are

5 used in such cases.

6 And a policeman as an authorised official has his own labour

7 obligation and he must have self initiative.

8 JUDGE WALD: Right. So let me just give one last example and I'll

9 move on. You have your duty officer there at the police department. He

10 receives a call saying there's a big bank robbery going on at a certain

11 point and they -- the robbery is in process. Does that -- and the duty

12 officer cannot get in touch with the commander, he simply can't get in

13 touch with the commander. Does that duty officer have some authority to

14 call patrolmen who are in other places and say, "Get over to that bank,

15 there is a bank robbery going on," or does he have to go upstairs to a

16 bigger unit in which case probably the bank robbery is all done and

17 finished by the time somebody gets on the scene? I'm just using practical

18 policing common sense to ask you the question.

19 A. I think you, yourself, have provided the answer but allow me to

20 explain. He informs, by telephone, the leader of the sector that such and

21 such a thing has happened. He has nothing to order him to do. If I

22 inform him that there's a robbery going on in such and such a street or of

23 such and such a bank, he gets moving automatically. That is what he is

24 authorised to do. Otherwise, he will be taken to a police court or a

25 criminal court.

1 So I think there's no dispute. These are not orders. This is

2 information which obliges me, as an operative, to react, and this is

3 envisaged by the rules of service. Because it says in the rules of

4 procedure and the law on criminal proceed -- and the rules of service, as

5 soon as there are reasonable grounds to suspect at the lowest level of

6 suspicion, therefore, to be more precise, information by the duty officers

7 obliges the patrol to react in accordance with their police authority.

8 Otherwise, they will be called to account by disciplinary or criminal

9 courts.

10 JUDGE WALD: Okay. Let me move on to another point in your

11 report. You talked a bit about crime technicians in your report and that

12 of course is because Mr. Prcac was a crime technician. On pages -- in the

13 English version, but it's only one sentence, so on pages 9 and 10 of your

14 report, you say that, "The crime technician is a member of an

15 investigation team, never a head of the investigation team. He finds the

16 traces and interprets them."

17 Now, that appears to say that the crime technician, he's never the

18 head of the investigation team and he usually is a part of an

19 investigation team. I take it that's the context that you're talking

20 about. Does that mean that the investigation team does have a head? I

21 mean normally there will be somebody who is in charge of the investigation

22 team and tells the people on it what he expects them to do; is that

23 right?

24 A. As in all police forces in the world, so in our country too, there

25 are on-site investigations which is an urgent investigative act which,

1 according to the law on criminal procedure, may be performed by bodies of

2 the internal affairs, that is, by authorised official persons and, of

3 course, by the investigating judge. But as an investigation is an urgent

4 investigative procedure which means going on site immediately to the crime

5 scene so as to get there as quickly as possible for the traces not to be

6 removed or destroyed, that is, all material evidence, to discover

7 immediately or capture the perpetrator of the criminal offence, then there

8 is a team. A team may consist of two or three men, but the smallest

9 possible team would be a two-man team. One of whom is the inspector who

10 goes to the crime scene and regulates how the investigation should be

11 conducted, and a crime technician accompanies him.

12 JUDGE WALD: Now, on page 7 of your report, you talk a little bit

13 about the army and you say in the second paragraph on page 7, you tell us

14 about the duty of the corporal of the guard. I understand that's in the

15 army, I take it, is the post to relieve the guards -- to visit and control

16 each guard at least once. He's accountable to the commander. You're

17 talking there about the army; is that correct? I just want to make sure

18 because --

19 A. Yes.

20 JUDGE WALD: My question to you, because it assumes that I mean --

21 it says here that the army has a situation where there is somebody called

22 the corporal of the guard who, in the English translation, visits and

23 supervises -- the word control is used, each guard at least once.

24 You are -- is it true or is it not true that the police structure

25 in the system with which you are familiar, has no counterpart to that? In

1 other words, is there any counterpart to that duty of the corporal of the

2 guard? Is there anybody who performs that kind of function for policemen

3 normally in a police structure and, if so, who?

4 A. In my report, I wanted to show that the police structure is not

5 identical to the army structure.

6 JUDGE WALD: I understand.

7 A. And that we must make a clear distinction between police workers

8 or policemen who are employed, who are under work duty, and who do not go

9 to their workplace with somebody with a higher rank than they in order to

10 reach their place of -- security post. I am not using the term "guard"

11 intentionally because in our laws and regulations, we use the term

12 "policeman providing security" or "on security." But as he is an

13 employee and is trained how to reach his workplace, he knows what his

14 duties are, he simply goes to the police station to change his civilian

15 clothing for his uniform, to pick up his weapon and other means such as

16 communication devices, and then he goes on to do his duty. He knows what

17 his working hours are, and what his duties are.

18 So in this case, this corporal of the guard, he distributes the

19 guards. These are younger privates doing their military service. They

20 are not professionals. He takes them there, and takes over those who

21 have -- whom they have relieved. As for the policemen, the policeman

22 alone goes to his post and is informed by his colleague he is relieving

23 whether anything new has happened. And then the person who is being

24 relieved goes back to the station and, if necessary, writes up a report.

25 JUDGE WALD: That's very interesting. Let me ask you this

1 question. In the American, and I believe in many other countries with

2 which I am familiar, in their police systems, they actually use the army

3 terminology. They have privates, they have sergeants, they have

4 lieutenants, and they have a hierarchy. And certainly if you are a

5 sergeant in the police force, you have authority over and you have power

6 to give orders to -- within limits, people who are private. If you are a

7 lieutenant, then you have authority to give some orders to sergeant.

8 Now, is there no such comparable hierarchy in the Republika Srpska

9 or the Serbian police forces? You don't have any of that kind of

10 terminology or hierarchy of people that are authorised to give orders or

11 to supervise others below them?

12 A. The question is whether a navy captain can give an order to an

13 ordinary soldier to carry out a certain task. What I am trying to say is

14 that the authority that somebody has emanates from the legal provisions,

15 that is, from the rules of service and organisation and the organigramme

16 of the institution.

17 I can assert that a captain of the traffic police could not give

18 an order to a public order policeman because all I could do would be to

19 caution him and in view of his obligations, he will carry out certain

20 tasks of his own accord. So in that case, we would have an accumulation

21 of titles, and the professionalisation of the police, and I have read

22 about American experiences, that making policemen into professionals means

23 that they have the initiative to address certain issues because as you

24 know, technology can have a detrimental effect on our minds too.

25 For the moment, that has been our option and -- but time will show

1 whether we were right or not. So where there are ranks, then there may be

2 a certain hierarchy, but again, we have to make a distinction whether a

3 person belongs to a special unit, the regular police, the traffic police,

4 the border police, and so on.

5 JUDGE WALD: My last question to you: Based upon, again, both

6 police theory and practice as you knew it in peacetime in Serbia, if you

7 had a police force in a city which suddenly, in an emergency, was required

8 to keep control over or supervise several thousand people, several

9 thousand civilians, it was necessary for security, as you suggested

10 earlier, there may be some provisions in your law which are not treated as

11 custody but where people are not allowed to move for some other reasons.

12 But suppose you had a police force in a city which was required to control

13 the movement or to guard several thousand civilians, would you expect

14 under sound police theory or practice that there would be some level of

15 supervision between the single commander at the top and every one of say

16 20, 30, or 40, 50, however many guards were necessary, to supervise those

17 2.000 people?

18 A. I am not familiar with the concrete situation you are referring

19 to, but the theoretical answer would be that regardless of the policemen

20 engaged, there are also persons who do that. If it is a department, then

21 it would be the commander or the leader of the department, but the

22 question now is, and I really don't know how it was in that particular

23 case, whether somebody tours or visits those persons to see how they were

24 performing their official duties.

25 Therefore, we must bear in mind the theory, and it is quite

1 acceptable and necessary to tour those policemen, but as regards the

2 concrete case, I don't know whether there was sufficient people, capable

3 people or not, or whether they resorted to other technical devices to

4 provide security for those men. I really cannot tell you. But

5 theoretically speaking, somebody should tour them and control them. But

6 bearing in mind what I just said, that they have their duties which is, in

7 itself, the greatest control over them.

8 JUDGE WALD: Thank you.

9 THE WITNESS: [Interpretation] Thank you too, Your Honour.

10 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

11 Wald.

12 Dr. Lakcevic, I also have some questions. My first is of a purely

13 practical nature. Persons who contacted you to come here, what did they

14 ask you to study?

15 A. Thank you for your question. The people who asked me to prepare

16 this report, they learnt of my experience through some other people they

17 had had contact with, and in view of the period up to 1990, 1991, that is

18 the former SFRY, they asked me --

19 JUDGE RODRIGUES: [Interpretation] I'm sorry for interrupting you.

20 I did not ask you why, I asked you what. What did they ask you to do?

21 What was the purpose of your research?

22 A. The purpose was to explain, that is how I was informed, that there

23 was certain problems in clarifying what is a security centre, what is the

24 public security service, what is a police station and its leaders, and

25 what is a department of the police, to explain these things. Then also to

1 explain the relationships when providing security of facilities, whether

2 they -- these were guards or were they policemen who have different ways

3 of relieving each other and performing their tasks and also to explain

4 what is a crime technician, who can perform those duties, what those

5 duties are. And I think that I have provided answers to those questions

6 put to me. I have seen -- I have not been asked any questions by them so

7 far, and I feel that I have fulfilled my obligation in relation to them.

8 As for you, I will be very sorry if I have failed.

9 JUDGE RODRIGUES: [Interpretation] Very well, Doctor Lakcevic. In

10 any event, you analysed all that from the standpoint of a situation of

11 peacetime, not wartime; is that right? Is my understanding right?

12 A. Yes, that is so.

13 JUDGE RODRIGUES: [Interpretation] Let me ask you another

14 question. The rules that you analysed and that you know, do they envisage

15 a situation of war or a situation of conflict?

16 A. No. The law on internal affairs and the rules of public security

17 have no such provisions, because nobody expected a war to break out. And

18 I hope that a war will never occur, but this is something that all the

19 police forces in the world will have to take into account.

20 JUDGE RODRIGUES: [Interpretation] So from the standpoint of rules,

21 we are, in a sense, in a situation which is not adjusted to the rules.

22 What would be your comment?

23 A. In my opinion, those rules of public security service enacted in

24 1977 and which specifies the legal competencies, it is compelling and

25 specific, and it also envisages the possibility of engaging the reserve

1 force, and the engagement of reserve policemen may be done only if there

2 are extraordinary circumstances. And as a theoretician, a man, a

3 researcher in this area, would consider this to be an extraordinary

4 situation. So those rules enacted then and which are still being applied

5 in both entities do envisage extraordinary security. In paragraph 4 I

6 identify that with this wartime situation.

7 JUDGE RODRIGUES: [Interpretation] Yes, but in general terms, could

8 it be said that those rules are adapted, and I underline adapted, to an

9 extraordinary situation? Yes or no?

10 A. To ask me to say yes or no, I don't think would be right, and I do

11 apologise. Because the security situation is assessed by the person in

12 the police station, and he provides certain instructions or written orders

13 that attention should be paid to such-and-such. So the rules as such do

14 not specifically say that a football match should be secured in

15 such-and-such a way or that the investigation centre or collection centre

16 should be secured in such-and-such a way. That will be done by the

17 executive who has the authority, knowing the number of people involved,

18 the configuration of the land, the need for security. He will decide what

19 actions should be taken. Therefore, these rules can be applied, but in an

20 elaborated form.

21 JUDGE RODRIGUES: [Interpretation] We have already heard other

22 witnesses about this, but what I would like is to put a question to you to

23 summarise things. From the theoretical point of view, and confronted with

24 a practical situation, that is, the extraordinary circumstance of a

25 conflict, and from the standpoint of logic and honesty of reasoning, is it

1 adapted -- is it correct to invoke normal rules to an extraordinary

2 situation?

3 A. Yes, it is possible, and I'll explain why. For me to be able to

4 apply certain codes of conduct towards the people who are there, I must

5 adhere to the rules. I have to have an interview with him. I have to

6 compile an official report or his statement. So these rules and

7 regulations make up and indicate the road that I, as a policeman, the

8 authorised professional person, is duty-bound to follow. Now, whether a

9 centre or not can or cannot [as interpreted], this is a question that can

10 be solved, in my personal opinion, on the basis of the decision of the

11 responsible person. But the rules must be applied even under conditions

12 of this kind, in line with the competencies and authorities provided,

13 otherwise we would have anarchy.

14 JUDGE RODRIGUES: [Interpretation] Yes. Otherwise we would find

15 ourselves faced with anarchy. You said, Dr. Lakcevic, that a policeman is

16 trained to react and should be able to react and act. I think that what

17 you are saying here is providing a basis for having discipline. We have

18 to react in a certain way. Now, how do you see this question, the

19 obligation to react and discipline? Do they have any points in common,

20 something to do with each other?

21 A. My answer would be as follows: The authorisation and competencies

22 of police forces in the world, and in our country too -- and I did

23 investigation into this, just for digression, that about 1.500 different

24 authorisations, whether large or small, is something that the police has.

25 Or, as in the United States, even to take an old lady across the street or

1 to take down a cat from a roof, that is also one of the things that

2 policemen do. But I want to say is that the competence and authorities

3 given to a professional, with the use of force and detention, custody,

4 firearms, and so on, an individual must be well versed in matters of this

5 kind, in training and education, and I consider that the concept by which

6 these people should take their own initiative in that this must be the

7 binding motive force and must adhere to principles in his conduct towards

8 society and towards himself.

9 JUDGE RODRIGUES: [Interpretation] Yes. We now have duty and power

10 to react, on the one hand; we also have discipline, on the other. And I'm

11 going to ask you to look at a third factor: How to act, the ability to

12 react, discipline, and organisation and hierarchy, how do all these parts

13 of the puzzle fit in? Because does hierarchy have something to do with

14 discipline and the duty to react? How do you see this interconnection?

15 A. Formally speaking, it does have.

16 JUDGE RODRIGUES: [Interpretation] Let's have a look at the

17 practice of it, practical terms, please.

18 A. Yes, the practice. Services are centralised, and that means that

19 we go down from the ministry. The ministry proposes a rule and

20 organigramme for the internal organisation of the service. This is then

21 adopted by the government. So the minister has his deputy ministers, or

22 subministers or secretaries or whatever you like to call them, assistant

23 ministers or whatever. Then we have the centres themselves, who have

24 their chiefs, and they are underneath the ministry, but they are above the

25 public security station, which has its leadership organogram as well. And

1 then we come down to the police station itself, where the number-one man

2 is the commander. So hierarchy must exist. Hierarchy has to exist. And

3 there are duties and responsibilities between the -- from the lower chains

4 up the chain of command, upwards.

5 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Lakcevic. You

6 said on several occasions that you were a man of science, that you were

7 interested in theoretical studies and analysis and so on and so forth.

8 Did you ever see, have occasion to see or read or reflect about the social

9 psychology with respect to hierarchy, social psychology and hierarchy, the

10 links there?

11 A. My answer to that is that I can't provide a satisfactory answer in

12 the exact scientific sense, but of course every type of investigation

13 demands the study of social psychology. So my answer is no, I did not,

14 strictly speaking, examine and investigate that subject.

15 JUDGE RODRIGUES: [Interpretation] Yes. Very well. Now, do you

16 have any information with respect to hierarchies, even informally? That

17 is to say, you might have a situation where there is no rule, formally

18 established rule, but in a given practical situation, the hierarchy is

19 necessarily born, because it is impossible to live in a group, especially

20 for a particular action and operation, without having some kind of

21 hierarchy. Now, do you have any of your own thoughts with respect to the

22 need for a hierarchy, even an informal, unofficial hierarchy, in a given

23 situation?

24 A. In view of the police structure, the rights and duties, as in the

25 army, there is nothing informal there or unofficial, lack of authority, or

1 anything like that. Everything will depend on people's culture,

2 education, and upbringing, whether I'm going to accept something that

3 somebody has told me which, by virtue of the chain of command, is not

4 authorised to do so. And that means that if somebody who has some sort of

5 respect were to draw my attention to my own conduct and behaviour or the

6 execution of my duties, that will depend on my goodwill. But it means

7 that somebody has to have a piece of paper, speaking conditionally, of

8 course, authorising him to ask for something or order something, because

9 otherwise why should I listen? Why should I follow what he says? That

10 will depend on my own upbringing, my culture, and so forth, but I wouldn't

11 be duty-bound in any way.

12 JUDGE RODRIGUES: [Interpretation] Very well. Let us take a

13 concrete situation, and I'm going back to a question that my learned

14 colleague Judge Wald raised a moment ago. Let us imagine a particular

15 situation where you have thousands of people, a situation with thousands

16 of people gathered together, and there are, for example, just 15 policemen

17 who have to take care of the security of these thousands of people, and in

18 actual fact, de facto, there is no commander available, due to force of

19 circumstance. Do you admit that in the natural course of events, there

20 has to be somebody to whom the other people address themselves, choose to

21 address themselves in order to have a problem that crops up resolved?

22 Naturally, by the natural development of events, without having an actual

23 official in place.

24 A. Well, I don't think situations like that exist. The police force

25 has been instructed in such a way that it must have. It necessarily must

1 have. Now, some -- the commander of a department or so on --

2 JUDGE RODRIGUES: [Interpretation] I must interrupt you at this

3 point. Just a moment, please. I asked you the theoretical question.

4 Imagine a situation of this kind, and when I say imagine, the commander is

5 not available. He's not there. He's not present. There's no telephone

6 and there's a problem that has arisen. That is the practical situation.

7 Whether it is imaginary or not, let us leave that aside for the moment.

8 On the basis of your experience, on the basis of your knowledge, as a

9 specialist for security matters in the police force, how do you resolve

10 this situation? How is this situation organised? What would you say to

11 that?

12 A. My answer would be as follows: In situations of this kind, if we

13 know each other amongst ourselves, these 15 policemen or 20 policemen or

14 however many, we know -- we would know who has more experience, who is

15 better professionally trained, is at a higher cultural level and is better

16 brought up and can organise some things, because the law means nothing

17 unless it is applied. And in this case, law would mean nothing unless

18 somebody were to determine whether somebody was going to take up a

19 position here or there. Because if I am a stronger personality with more

20 culture and so on, I will say, "You will stand there to protect the

21 people. You, on the other hand, will stand here." So that is in the

22 human sense and human relations and that is the social aspect of it all,

23 so that would be necessary, yes.

24 JUDGE RODRIGUES: [Interpretation] Very well, Dr. Lakcevic. We

25 could go on discussing this question ad infinitum but we shall have to end

1 here for today. We thank you very much for coming and for bringing to us

2 your experience and knowledge to throw more light on the situation.

3 We wish you every success in your work to follow and a lot of

4 thought in the subject matter that you are versed in. Thank you.

5 THE WITNESS: [Interpretation] Thank you too. Thank you too.

6 [The witness withdrew]

7 JUDGE RODRIGUES: [Interpretation] We now have a conflicting

8 situation. Shall we adjourn for luncheon and come back because we have

9 some other matters to treat or shall we stay on and then everybody's going

10 to look at their watches or clocks and not listen to what we're saying.

11 What shall we do? Mr. Jovan Simic perhaps has an answer. And we also

12 have documents to be tendered into evidence but Mr. Jovan Simic, I'm sure

13 you have a good suggestion to make.

14 MR. J. SIMIC: [Interpretation] Your Honour, I propose that we

15 continue and if we see that we are going on for too long and that we can't

16 get to the end of it, then we could take a break but I think that we

17 could, perhaps, start and see how things develop and I hope that we'll

18 finish on time.

19 JUDGE RODRIGUES: [Interpretation] I am looking round at all

20 parties. The interpreters, whether we can continue or not. I think we've

21 already overstepped the time. We'll try and end as quickly as possible

22 but we always run the risk of taking up too much time.

23 Anyway, we have three questions to address. The tendering of

24 documents, that is one point, an oral ruling is point two with respect to

25 Mr. Radic's case, and thirdly, certain indications for the rebuttal of the

1 parties to follow.

2 The first point, Ms. Susan Somers, documents to be tendered. Tell

3 us what you have on your list.

4 MS. SOMERS: Your Honour, for this past witness who has just left,

5 Dr. Lakcevic, I would ask to have admitted into evidence Prosecution's

6 3/275A and B. And there is a declaration which is attached to it which is

7 C.

8 JUDGE RODRIGUES: [Interpretation] Is that all, Ms. Susan Somers?

9 MS. SOMERS: For today --

10 JUDGE RODRIGUES: [Interpretation] For admittance. All right.

11 We'll treat the others separately.

12 Mr. Jovan Simic.

13 MR. J. SIMIC: [Interpretation] Your Honours, as far as Exhibit

14 3/275A and B are concerned, we oppose it. We object because we don't know

15 whether it has come into force or whether this is an integral text or text

16 proposed. There's no signature, no stamp. All we have is evidence as to

17 the way in which it was come by.

18 As far as the statement is concerned, I think this Trial Chamber

19 has already taken the position that we cannot have statements admitted, if

20 I understood correctly, that is.

21 JUDGE RODRIGUES: [Interpretation] Which declaration are you

22 talking about? What statement? Are you talking about the declaration

23 with respect to authenticity?

24 MR. J. SIMIC: [Interpretation] I apologise, I misunderstood. I

25 misunderstood. I thought it was a statement by Mr. Knezevic which my

1 learned colleague referred to. I do apologise. We just object to the

2 document that we stated for the reasons we stated.

3 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, would you like

4 to respond with respect to the reasons put forward by Mr. Jovan Simic?

5 MS. SOMERS: If the reasons concern authorship, at the very

6 beginning of the text, Your Honour, on page 2 of the English, pursuant --

7 it reads pursuant to Article 33(1)(ii) of the law of the interior, it

8 indicates that it is published in the official gazette of the Socialist

9 Republic of Bosnia-Herzegovina and is adopted. So this is text which made

10 its way into the official records of the Socialist Republic of

11 Bosnia-Herzegovina and questions were put to the witness from this to

12 which the witness had comment.

13 I think it is certainly the subject matter with which he has some

14 expertise and it was during a time period that was prewar. I think that

15 the -- I think it would be very helpful for the Chamber to have the

16 document in its deliberations and that is why we brought it in. Its

17 relevance, I think, is established.

18 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, do you stand by

19 your objection after that explanation?

20 MR. J. SIMIC: [Interpretation] Just briefly, Your Honour, it does

21 say on -- pursuant to which law, but -- and in keeping with the law but,

22 we have no evidence to show that this was presented and applied anywhere.

23 It is customary, at least in the former Yugoslavia, that the

24 person, the institution compiling, an institution that it is registered

25 that it has a number, that it has a stamp, and is signed. This is perhaps

1 just a proposal, a draft proposal which was never actually practically

2 applied or adopted in the organisation. That is why we object. Thank

3 you.

4 JUDGE RODRIGUES: [Interpretation] Just a moment, please, the

5 Judges will confer.

6 MS. SOMERS: I wanted to just respond.

7 JUDGE RODRIGUES: [Interpretation] Did you answer?

8 MS. SOMERS: I didn't realise that one of the issues was

9 authorship per se, but Alija Delimustafic's name does appear at the end of

10 it who was the Minister of the Interior, and I just wanted to bring that

11 to the Chamber's attention in so considering.

12 JUDGE RODRIGUES: [Interpretation] Yes, I did notice that, but it

13 doesn't change what Mr. Jovan Simic said. I did notice that there was a

14 Minister of the Interior, Alija Delimustafic but --

15 JUDGE WALD: Was there a signature on there or just the printed

16 name?

17 MS. SOMERS: Your Honour, I have no signature.

18 JUDGE WALD: I don't either. Either one.

19 MS. SOMERS: If the Chamber just takes a glance at the source, it

20 was from the faculty of criminology at Sarajevo University. It is a

21 working document that they use.

22 JUDGE RODRIGUES: [Interpretation] Just a moment, please. The

23 Judges will confer.

24 [Trial Chamber confers]

25 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, regarding the

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1 admission of this document, the Chamber adopts the following position, the

2 Chamber would like to have the official text from the gazette. Therefore,

3 the Chamber gives you the possibility of providing the Chamber with the

4 official text and then we shall wait for you to give this official text to

5 the Chamber and the Defence.

6 Are you ready to do that, Ms. Susan Somers?

7 MS. SOMERS: Your Honour, I would have to go back to the

8 individual from whom this came and ask for it and I will report back to

9 the Chamber as soon as I've been able to get the text. Thank you. Thanks

10 for the opportunity.

11 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,

12 Ms. Susan Somers. So this document will wait for notification from your

13 side.

14 A second point is a decision, an oral decision of the Chamber

15 concerning the admission of expert reports by the Radic Defence, the

16 Defence counsel for Mr. Radic. The 27th of April 2001, the Prosecutor and

17 the Defence for Mladjo Radic requested the admission of expert witnesses

18 reports by Professor Nenad Kecmanovic and Dr. Robert Donia. The Chamber

19 had already taken on the 9th of March 2001 the following decision, "The

20 Chamber admits the report of Mr. Kecmanovic and the written response of

21 the Prosecutor in the file without any prejudice at this stage as to the

22 possible weight which will be attached to it." And that is to be found on

23 the English LiveNote page 9012.

24 The report of Dr. Robert Donia constitutes the written response on

25 behalf of the Prosecutor noting that all the conditions have been met to

1 decide finally as to its admission, the Chamber confirms the admission

2 into evidence of these files and notes that numbers 34/3 and 3/2.66 have

3 already been granted with respect to the reports of Professor Kecmanovic

4 and Dr. Robert Donia.

5 A third point, if I may say so, the Chamber would like to share

6 with the parties a few guidelines regarding the rebuttal and rejoinder

7 which, as you know, has already been scheduled for the week of the 28th

8 for the Prosecution, the rebuttal, and for the Defence, the weeks of the

9 11th of June, and the 18th of June, whereas for the Prosecutor it is the

10 28th of May.

11 As we come to the end of the Prcac Defence case, we have also

12 completed the presentation of evidence by the Defence. So at the end of

13 the presentation of the Prcac Defence, this also marks an end of the

14 presentation of evidence by the Defence for all the accused. We will meet

15 again in order to hear the rebuttal of the Prosecutor followed by the

16 rejoinder, by the Defence counsel for each of the accused.

17 I see Mr. Stojanovic on his feet. You wish to interrupt me? Is

18 it that urgent?

19 MR. STOJANOVIC: [Interpretation] Your Honour, you frightened me by

20 saying that the Defence case had been completed. In the course of my

21 opening statement --

22 JUDGE RODRIGUES: [Interpretation] We know that there is also

23 Nedopil, but that is a special case. We'll come to that. We haven't

24 forgotten your expert witness. We thought that we would hear him on the

25 28th, but regarding everything else, we have completed the Defence.

1 MR. STOJANOVIC: [Interpretation] Your Honour, we had some other

2 submissions. I was in contact with Madam Registrar. There was some

3 evidence that I mentioned in my opening statement. There are three

4 documents, the fourth has been admitted. It was our exhibit.

5 JUDGE RODRIGUES: [Interpretation] Just wait, please. Wait a

6 moment. There is a certain order that has to be respected, please. I was

7 saying that the presentation of evidence for the Defence, in principle,

8 has been completed. There are a few exceptions.

9 As I was saying, before parting, I should, however, like to remind

10 the parties of the rules of admission of evidence which the Chamber

11 intends to apply during the rebuttal and rejoinder stages of the

12 proceedings. As you know, the Trial Chamber III in the Kordic case

13 indicated that it would only admit evidence which does not relate to

14 points already raised during the presentation of evidence by the parties

15 in their cases in chief. The Chamber will apply that same principle.

16 More specifically, the Chamber intends to apply the test mentioned

17 in the Celebici appeals ruling on the 20th of February, as this Chamber

18 has already done in the Krstic case. This means that the evidence

19 presented in rebuttal by the Prosecutor will be admitted only if they are

20 important and if they directly relate to evidence presented by the

21 Defence. That is why elements which relate to an essential aspect of the

22 Prosecution case in chief will not be admitted.

23 Certain elements may appear to be fundamental and therefore could

24 be admitted if the Prosecutor was not able, in spite of diligence, to gain

25 possession of them to present them in their case in chief, and if,

1 furthermore, they relate directly to a point raised by the Defence during

2 their presentation of evidence. Of course, the same rules will apply to

3 the evidence presented by the Defence in the rejoinder stage.

4 To summarise - and as you know, there are often translation

5 problems, because in the French terminology there lacks certain terms that

6 only exist in English - to sum up, it should be said that the Chamber will

7 apply the jurisprudence from the Kordic case, which the parties are

8 familiar with, I'm sure, the Celebici jurisprudence, and there is also the

9 Krstic jurisprudence, which is quite recent.

10 So this is simply to facilitate your task. The Chamber is telling

11 you clearly that it will be strict in the application of these rules, so

12 do not try to tender something that you know already will not be

13 admitted. Of course, we can always discuss whether something should be

14 considered or not, but that's another matter. And I really do call upon

15 you to exchange views amongst yourselves, between the parties, if you have

16 any doubts, before submitting a motion or making any request, because the

17 rule of this Chamber has been, from the beginning, that before presenting

18 a motion, the motioning party should consult the other party and appear

19 with a motion, making such-and-such a request: I have consulted the

20 opposing party and they agree or they disagree. Why? Because we are

21 going to have very limited time, and therefore we really must take

22 advantage of that time, otherwise we will have insurmountable scheduling

23 problems. I'm reminding you of this and I invite you to prepare things

24 well so as to avoid finding ourselves in a situation which could prove

25 difficult to manage, in view of the time constraints that this Chamber

1 has.

2 That is what I had to tell you. Those were the three points. Now

3 I give the floor to Mr. Stojanovic to share with us his concerns that you

4 have already mentioned, in a sense.

5 Mr. Stojanovic.

6 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. However,

7 I have received a note from Madam Registrar.

8 JUDGE RODRIGUES: [Interpretation] Please go directly to the point,

9 because we have to adjourn. You wanted to clarify a point, to be clear,

10 concise, and concrete, the rule that we always apply.

11 MR. STOJANOVIC: [Interpretation] Your Honour, we did request, in

12 writing, admission into evidence of Exhibit D6/4 and D7/4, which I

13 tendered during my opening statement. Then also there were two other

14 exhibits --

15 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, excuse me. Oh,

16 dear me, dear me. The registrar is responsible for reviewing all

17 questions relating to pending documents, outstanding documents. It is her

18 duty to discuss these things with you, and then we will address them.

19 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. I have just

20 received those instructions from Madam Registrar, and everything is in

21 order then.

22 JUDGE RODRIGUES: [Interpretation] Thank you. We must have a

23 certain degree of organisation and discipline. There are situations where

24 there is a lack of discipline, but here we must be disciplined.

25 Mr. O'Sullivan.

1 MR. O'SULLIVAN: Your Honour, could we have some guidance on the

2 schedule for receiving what the Prosecution intends to present as

3 rebuttal, a timetable for our response to the Chamber responding to what

4 the Prosecution proposes? I wish to emphasise that the case for Kos

5 closed on 19th of February, and under Rule 82, in a joint trial, he is

6 viewed to have rights separate and equal to the other accused. So in the

7 last few months we've heard nothing from the Prosecution on whether or not

8 they intend to present rebuttal evidence in response to the Kos case. We

9 don't know when that will be coming. We expect it will be soon, I

10 suppose, but we would like to know by when we can respond, if we have any

11 response at all, to what the Prosecution is proposing in regards to Kos.

12 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

13 MS. SOMERS: Mindful of the time, Your Honour. The Prosecution,

14 with no other direction, is applying the same seven-day rule, and we are

15 preparing, hopefully for the end of this week, the overall rebuttal list.

16 What I propose to do, if time permits, is to have a chart indicating the

17 witness, the point that the rebuttal is directed to, and any possible

18 exhibits that we may be using in support of that point known to us at this

19 time. So by the end of the week we should have our preliminary draft, and

20 we appreciate the Chamber's guidance in its standards for proof.

21 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, does that -- is

22 that a reply to your concerns?

23 MR. O'SULLIVAN: That means that we will receive it before the

24 close of business Friday; is that correct?

25 JUDGE RODRIGUES: [Interpretation] That was my understanding, the

1 end of this week.

2 MS. SOMERS: With the seven-day rule applicable. If there are

3 seven days prior to calling a witness, it would be concerning Kos or any

4 other -- yes.

5 MR. O'SULLIVAN: With respect, that's not the practice on

6 rebuttal. The Prosecution, in my submission, must tell us, in advance,

7 who they intend to call in response to which allegation against Kos or

8 which part of the Kos defence. Because, Your Honour, we've had three

9 months of inactivity or no communication from the Prosecution. Are we

10 supposed to not investigate these people? Are we supposed to not prepare

11 our rejoinder, if any? This isn't just a seven-day -- the seven-day rule,

12 Your Honour, applies to the trial, when disclosure has taken place months

13 in advance, with statements, and Rule 65 and all the rest. This is

14 patently unfair to suggest that seven days before any rebuttal witness is

15 called, that that's proper notification for the Defence to investigate and

16 prepare any rejoinder. In my submission, that's not what Rule 85

17 contemplates, nor the practice of the Tribunal.

18 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, excuse me. I

19 think we have to have a break and come back to discuss this matter. We

20 have almost been working for two hours, and the question you have raised

21 is an important one. So I think we're going to have our 50-minute lunch

22 break and we'll come back here to discuss the issue, because I think it is

23 not possible to go on under these conditions. So we're going to have our

24 50-minute break and come back after that.

25 --- Recess taken at 1.36 p.m.

1 --- On resuming at 2.34 p.m.

2 JUDGE RODRIGUES: [Interpretation] Please be seated.

3 MS. SOMERS: Your Honour, may I ask the Chamber's indulgence to

4 just clarify something that I said this morning?

5 JUDGE RODRIGUES: [Interpretation] Yes. We have plenty of patience

6 as far as that is concerned.

7 MS. SOMERS: Thank you. And Mr. Jovanovic brought it to my

8 attention that I may have been less than clear. In the document which the

9 Chamber has requested us to find out from Sarajevo about its publication,

10 it does indicate that it will not be published in the official gazette but

11 rather it comes into force on the 8th day following the adoption, and I'm

12 referring to document 3/285A, B and C. What I will have to do then, Your

13 Honour, so that the Chamber does not expect to see a gazette entry is to

14 go back to the professor and find out what triggered the adoption, and I

15 will report back to the Chamber, but just to make it clear.

16 JUDGE WALD: I think the only thing we're primarily interested in

17 is whether it was adopted, because when you go in on a raid or whatever

18 and you pick up a thousand documents, you could pick up drafts that never

19 came, actually, into being. Just so long as we know that it really was,

20 at some point, the rules and regulations in effect.

21 MS. SOMERS: Your Honour, this was not from a search. This was

22 actually from the Criminal Justice Faculty of Sarajevo, but I will give

23 you the information. Thank you very much.

24 JUDGE RODRIGUES: [Interpretation] So you see, when you speak the

25 same languages without making pauses, you have to wait for a while at the

1 end. So the things have been cleared up now.

2 I think we can take up again the question which has brought us

3 back to the courtroom. Mr. O'Sullivan, perhaps you could please summarise

4 your question for us after which I'll give the floor to Ms. Susan Somers

5 for her response. So please, Mr. O'Sullivan.

6 MR. O'SULLIVAN: Thank you, Your Honour. Our position is this on

7 behalf of Kos: The Prosecution has not indicated to us whether or not

8 they intend to request to call any rebuttal evidence. So I'm answering in

9 the abstract as far as that goes. They may have none. We don't know.

10 But the Kos case closed on the 19th of February almost three months ago.

11 If, indeed, the Prosecution intends to request rebuttal evidence,

12 it certainly had time in the intervening weeks, if not month after the

13 close of our case, to notify us and their obligation under Rule 66 is to

14 make available to the Defence the statements of any additional witnesses

15 they intend to call. That's 66(A)(ii). We say that our case closed on

16 February 19th or 20th under Rule 82(A), "In a joint trial, the accused

17 enjoys the rights as if he were tried alone," in this regard. And

18 therefore it cannot be said, in our submission, that following four Kos

19 witnesses, the Prosecution did not know a very long time ago to what

20 extent, if any, it would rebut any of those witnesses.

21 So until we know if, indeed, the Prosecution intends to call

22 witnesses, we can't be more specific than that. But I can tell the

23 Chamber that our position will be based, our response will be based on the

24 suppositions I have just put before you. So this may be moot because

25 there may not be any Prosecution request for Kos. We don't know. But the

1 time frames are important between the close of our case and today. The

2 discovery obligations are important, and we say it's within that context

3 we would respond to any request, if any, by the Prosecution.

4 JUDGE RODRIGUES: [Interpretation] Perhaps before I give the floor

5 to Ms. Susan Somers, I would like to know what the position is of the

6 other counsel so that Ms. Susan Somers can respond to all of them and have

7 a general idea of the positions. Do any other Defence counsel have any

8 observations to make in this connection?

9 Mr. Lukic.

10 MR. LUKIC: Your Honours, we had the opportunity to discuss the

11 same issue during the break and we only can state that we join the same

12 position as my learned friend O'Sullivan.

13 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic. No, I'm sorry,

14 it's Mr. Jovanovic.

15 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. We actually

16 agreed at the break, as my learned friend Mr. Lukic said, and our position

17 is a common one regarding this issue.

18 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.

19 MR. STOJANOVIC: [Interpretation] Your Honour, I also join my

20 colleagues in this position, but I see an additional problem here. I

21 assume that it is also our obligation to inform the Prosecution seven days

22 in advance what we intend to call as evidence in the rejoinder, but we

23 will not know that before the end of the rebuttal case, and the rebuttal

24 is scheduled to end on the 1st of June. For us to be able to abide by

25 this time limit of seven days, the deadline for the preparation of the

1 rebuttal case and for informing the Prosecution is the 3rd -- on the 1st

2 of June the rebuttal ends, on a Friday, and the last day for us to give

3 the Prosecution seven days is the 3rd of June, on a Sunday. So could we

4 have Your Honours' guidance with respect to that point too? Thank you.

5 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

6 MS. SOMERS: Thank you, Your Honour, for letting me handle it in

7 one fell swoop. There is no basis for the position of any of the

8 Defence. In fact, Rule 85 is silent as to when the announcement of a

9 rebuttal case or not a rebuttal case is to be made. And I think that

10 Mr. O'Sullivan is confusing generally the substantive rights and the

11 procedural rights that are normally afforded and should not be abridged;

12 in other words, the right to cross-examine. Article 21 typewrites that

13 they should not be abridged by virtue of a joint trial.

14 The practice -- during the lunch break there was an

15 opportunity -- I'm sorry. I speak fast. During the lunch break, I was

16 able, aside from drawing on my own experience from the Kordic case, which

17 is a two-accused case -- in that particular case, at the close of all the

18 Defence evidence, in other words, Kordic and Cerkez, only at the end did

19 the rebuttal decisions come forth and was there a witness list presented.

20 It was not when Kordic finished his case, then we presented the Kordic

21 matter. These are joint trials because they have something in common, and

22 they are dynamic throughout. Indeed, the Prosecution may not know until

23 the very close of all the evidence, of all the defendants. And this

24 Chamber has seen ample indication that there are, as it were, interlocking

25 defence considerations, the sharing of witnesses, the sharing of

1 affidavits. These are accused whose -- the allegations against whom arise

2 out of the same episodes, and the trial has remained dynamic until the

3 very end. The Chamber recognised that in affording cross-examination to

4 every Defence counsel after the witnesses came up, recognising that

5 something could arise that would alter the position or interests of each

6 accused, even though his case may be over, the case in chief.

7 Clearly, the Prosecution has to examine the entire case, and if

8 something new came up, let's say for an example, in the Prcac case,

9 concerning Kos, we would not be bound to an original assessment. We would

10 then have to look at the case as it stood when the case closed as to all

11 defendants, because it is a joint trial.

12 In fact, in the Delalic case, the Celebici case, there was an

13 attempt by the Defence to -- there was a proposal raised that the

14 Prosecution should present its rebuttal evidence after Delalic had

15 presented his defence case, followed by rejoinder evidence by Delalic,

16 final arguments by Delalic and then OTP and judgement by the Chamber as

17 regards Delalic. The Chamber would then proceed to each of the other

18 accused, presumably in the same fashion. The Chamber rejected this

19 approach, stating it would be analogous to conducting separate trials, and

20 it had already rejected applications for separate trials. Indeed, this is

21 a joint trial, and its jointness has been emphasised at practically every

22 stage.

23 There is no prejudice that can possibly be alleged that would

24 stick, in that up to the very end questions were still being asked by

25 other Defence counsel, including recently the Kos Defence counsel

1 cross-examining some of the witnesses of late.

2 The seven-day rule that was referred to that has been the rule in

3 this Chamber should provide ample opportunity for the Defence to be on

4 notice about the issues. I think the Prosecution probably will end up

5 with a bit of a lesser period of time ultimately because the rejoinder

6 would afford us less time to investigate, but we're not looking at that

7 side. I think that the issue is when is the case finished as to all

8 defendants, and in a joint trial, it is not finished as to all defendants

9 until all the evidence is in.

10 Again, Kordic worked on that principle. In Foca, in the Kunarac

11 case, there were three co-accused, and I believe at the end of the trial,

12 from what we were informed, the Prosecution indicated that it would seek

13 rebuttal evidence as against one accused. But it was after all the

14 evidence of all accused were in, which makes sense.

15 In Kupreskic, there were discussions, there were questions, but

16 there was no definitive, I'm told, and I'd have to confirm, but I was

17 informed by the case manager that the evidence for rebuttal, ultimately

18 discussions concerning it, arose after the conclusion of the

19 multidefendant case.

20 The Prosecution has proposed, and I hope the Chamber will find

21 this an acceptable way to frame issues fairly and expeditiously, that it

22 would do by the close of business Friday its assessment of the witnesses

23 it proposes to call, bearing in mind this Chamber's guidelines, whose

24 evidence it is proposed to rebut and the point of rebuttal. Any witness

25 statements under Rule 66 would only be applicable once there is a decision

1 or not to call rebuttal evidence. That decision cannot intelligently be

2 made until the case is closed.

3 I think the Tribunal has consistently seen that this is how it is

4 in a joint trial.

5 JUDGE RODRIGUES: [Interpretation] I think, Ms. Susan Somers, that

6 you have answered the additional question by Mr. Stojanovic. Does it

7 interest you? Have you answered that question? I don't know whether you

8 have provided an answer to that question too.

9 MS. SOMERS: The seven-day notice. I think I alluded to the fact

10 that we may end up, the Prosecution may end up somewhat on the short end

11 of the stick, which can happen. We will have -- we will certainly -- we

12 ask, of course, that good faith be exercised and that, to the extent that

13 seven days are permissible, that we have that seven days.

14 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, anything to

15 add?

16 MR. O'SULLIVAN: A couple of points very briefly. One has to ask

17 why the Prosecution would sit on statements that they think -- that

18 they've taken that they think can be used in rebuttal against Kos until

19 the 11th hour. For three months they've had a chance to consider what

20 they would do in rebuttal of Kos, and it's patently unfair to the Defence

21 not to be made aware of those statements of potential witnesses that the

22 Prosecution may want to call in rebuttal. That clearly flies in the face

23 of Rule 66 and disclosure obligations on the Prosecution. My learned

24 friend quotes the Celebici decision. I would very much welcome the

25 Chamber applying the Celebici trial and appeal decision on rebuttal, in

1 which case the Prosecution was precluded from calling rebuttal evidence

2 against the accused Delalic in part because his case closed in early

3 spring and it wasn't until July that the Prosecution made an announcement

4 of what they intended to do.

5 My last point is: Rule 82 does not in the least limit the rights

6 of the accused to be tried as if he were alone to strictly Article 20 and

7 21 matters. They go to procedure and substance, in my submission. The

8 right to cross-examination is always a right that an accused has. So in

9 short, this time frame to have the Prosecution sit on what it may -- a

10 statement it may have taken is designed, in my submission, to preclude us

11 from investigating and preparing and addressing what may ultimately be

12 allowed in rebuttal.

13 JUDGE WALD: I've got a question. Mr. O'Sullivan, today is

14 Tuesday, the Prosecution says it will submit some kind of an omnibus thing

15 with who it intends to call as witnesses, and I guess what exhibits

16 pinpointed against each particular defendant. I assume if a witness - you

17 can correct me if I am wrong -- Ms. Somers, I assume if the witness is on

18 that list at that point, that would trigger the fact that the Prosecution

19 intended to call them and so they'd get the statement at that time.

20 What do you propose? I mean what is your solution now? I mean

21 leaving for the moment your -- we're well aware of your criticism of the

22 delay that's come about, but what's your proposal now?

23 MR. O'SULLIVAN: As far as Kos goes, to deny a request to call

24 rebuttal.

25 JUDGE WALD: Because of the past delay?

1 MR. O'SULLIVAN: Yes.

2 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, I don't know

3 whether you can answer this or not. Why are you raising this question now

4 since we already have that schedule established for a long time now?

5 MR. O'SULLIVAN: With respect, I think that's a question for the

6 Prosecution. They're the party who's deciding whether or not they call

7 rebuttal. And as Your Honour has said, they should contact us before any

8 written submission is made and we've had no indication from the

9 Prosecution at all.

10 JUDGE RODRIGUES: [Interpretation] In that case, you raise the

11 question because today we spoke of the Prosecutor's rebuttal; is that

12 right?

13 MR. O'SULLIVAN: I believe --

14 JUDGE RODRIGUES: [Interpretation] So you learned today that there

15 will be a rebuttal.

16 MR. O'SULLIVAN: Well, certainly I haven't heard that there will

17 be Kos evidence, but it seems that there will be if the Prosecution has

18 not said there is no Kos evidence. And if there is a proposal of Kos

19 evidence, we may have a reaction to whether or not it fits within the

20 Celebici and Kordic tests.

21 JUDGE RODRIGUES: [Interpretation] Another question,

22 Mr. O'Sullivan: Do you see in the rules any time limit within which the

23 Prosecutor is obliged to make this notification of rebuttal?

24 MR. O'SULLIVAN: I say it exists on two bases. First, the

25 disclosure obligation under Rule 66 of statements when the Prosecution

1 decides it will call someone. And the fact that an accused, in a joint

2 trial, enjoys rights as if he were tried separately. And it's prejudicial

3 for the Prosecution to sit back for months, in this case, at least two, if

4 we give them a month to investigate and decide, it's prejudicial for the

5 accused not to be put on notice what may be proposed in rebuttal.

6 In our submission, rebuttal is not a generic response to

7 everything that's happened during all five cases. It's a response to what

8 happened in Kos's Defence.

9 JUDGE RODRIGUES: [Interpretation] So the time limits which we see

10 in Rule 66, it's a delay that the Chamber fixes, determines and, as you

11 have said, the rebuttal had a completely different dimension than the case

12 in chief. At this stage of the trial, I think there are only very limited

13 questions to be addressed. So would you agree, for example -- of course I

14 have to confer with my colleagues, but this is my own personal idea that

15 we respect this time limit as we have envisaged in the schedule, and if

16 you feel that there is significant prejudice for you, you can notify the

17 Chamber of it. What is your position?

18 MR. O'SULLIVAN: I'll make two observations. First, in regards to

19 Rule 66(A)(ii), the last sentence where it says, "A decision is made to

20 call those witnesses." In my submission that's the decision of the party,

21 of the Prosecution, not a decision of the Chamber. When the Prosecution

22 decides it wants to call someone, it must disclose statements.

23 And the second point is it's a mystery to us why there's such

24 secrecy around whether or not the Defence can expect or request a

25 rebuttal. Why aren't we told up front? Why is the Prosecution not

1 telling us in advance? Not seven days. It's completely unreasonable for

2 us to respond and investigate and prepare. It may be one witness, it may

3 be 10. We don't know. So why the secrecy? We don't see any

4 justification for withholding this given that for the last three months

5 the Prosecution has been able to think about what it would do in response

6 to our Defence case.

7 JUDGE RODRIGUES: [Interpretation] I think that some new points

8 have been raised. I don't know whether you -- Ms. Susan Somers has any

9 response.

10 MS. SOMERS: I would like to respond, Your Honour. I sense a deep

11 bad faith in this argument and I'm very concerned about. This Chamber has

12 always been very fair to all parties and I resent deeply the Defence's

13 implication that we have sat on something that there are latches. That is

14 not the case. There has not been a rebuttal conference, that is true, but

15 the Chamber did raise it, and we consistently asked about our time for

16 rebuttal.

17 We -- I believe we are within our rights until the end of this

18 case to decide if we will proceed in rebuttal or not because of its very

19 restrictive nature, and because of a number of other factors including

20 multiple calling of witnesses. If we took the Defence's position at its

21 face value, then when Kos finished then we might have to call witness --

22 any old name -- Witness John Doe, and then again perhaps call Witness John

23 Doe when Kvocka finished, that is an abuse of the process and that was

24 never contemplated by these rules, and nor would it be in any

25 jurisprudence that has concern for fairness.

1 The Defence, the Kos Defence, in particular, has had ample time if

2 they had a question. We have never been approached by them. The

3 communication runs two ways. We have all been at many conferences in

4 which the Chamber has given us dates. There was never an issue raised by

5 the other side, well, please let us have it by such and such. And of

6 course if this Chamber --

7 JUDGE RODRIGUES: [Interpretation] Excuse me, Ms. Somers, I feel

8 that the interpreters have enormous difficulties in following you. I'm

9 going to switch to the English channel. But I think the interpreters

10 really are having a lot of difficulty following you. Either you speak

11 more slowly, or we are going to have a real problem on our hands.

12 MS. SOMERS: I'm sorry, Your Honour, I'm obviously very disturbed

13 by what I've been hearing from the Kos -- from the Defence at this point.

14 I feel that it is a blind sided bad-faith approach. We have always been

15 open to any discussion.

16 This Chamber has been very open to any issues on time, on

17 extension. As a matter of fact, this Chamber has been so open that it

18 took out of order, essentially in contravention of Rule 85, it allowed

19 Kvocka and Radic to go completely out of order and the Prosecution went

20 along with it.

21 For any member of the Defence to allege that which has been

22 alleged I think is completely unreasonable. Rule 66 specifically does

23 discuss, in (A)(ii), "within the time limit prescribed by the Trial

24 Chamber." Had this Chamber had any concern about time limits or fairness

25 or not, I'm confident it would have notified the parties, as it always

1 does. And I see no basis, on any ground that's been alleged, for denying

2 the Prosecution its opportunity to present thoughtfully its rebuttal

3 witnesses, not just to throw out names. We don't want people to go off

4 and investigate for nothing. We waited until the finish of the case, we

5 have a solid idea of what needs to be rebutted and what does not, and we

6 are very mindful of the limitations of rebuttal. It is not a retrial of

7 the case. And one would think that an entire reinvestigation would have

8 to be undertaken. That is not the case. These are points that were

9 within the knowledge of the Defence and raised by the Defence that would

10 be rebutted.

11 So there's absolutely no basis. We see no prejudice, and we would

12 ask the Chamber to permit us to present our list, and of course with the

13 Chamber also receiving its copy, and allow the case to move forward, as it

14 apparently had deemed it was moving forward without any concern about --

15 JUDGE WALD: Let me ask you a question. I don't know, obviously,

16 who you're going to call or how many. You're the only one that knows that

17 right now. But let me ask you: I don't know how much time in Kordic

18 elapsed between the time that the Defence people were given a rebuttal

19 list and the time that the actual rebuttal took place, whether it was

20 longer than a week, but can you give us assurances of your professional

21 opinion that -- I don't know how many are going to be called for each

22 defendant, but that really a week's time will be adequate for them to look

23 into however many witnesses or exhibits you may be calling?

24 MS. SOMERS: I'm trying to think back to the time limit in Kordic,

25 and I would have to check various orders, but I wouldn't want to give you

1 the wrong impression, Your Honour. But it was -- we finished the case and

2 we moved on. It was not an extensive -- to my recollection, it was not a

3 terribly great gap.

4 JUDGE WALD: But a week is a pretty modest period of time. I'm

5 just asking you: Do you honestly think that if they're conscientious,

6 they can really do everything they have to in that week?

7 MS. SOMERS: I do, Your Honour, because these are issues that were

8 raised by --

9 JUDGE WALD: Well, I know you said that, and we all know that in

10 the abstract. But I mean, there's a big difference between if you

11 suddenly find there's going to be five rebuttal witnesses, you know, and

12 your one defendant, or if you find there's going to be one and a couple of

13 documents. You know, it makes a difference.

14 MS. SOMERS: I think, given the way we have to react on,

15 oftentimes, much, much less than a week. And in general, as I'm sure this

16 Chamber knows, the Prosecution reacts often in one night or two days. So

17 we have been able to carry out our functions for cross-examination on

18 really turning around very quickly. I think with diligence it should not

19 be difficult, and we act in good faith. We are not trying to put

20 roadblocks in, but there are points that do need to be addressed in order

21 for the record to be complete. So I would hope that it would be enough

22 time, Your Honour. Again, based on our experience of having had the

23 tables turned for almost the entire Defence case, we've had to act on the

24 spur of the moment.

25 JUDGE WALD: Are you in a position to answer the following

1 question for me? If you aren't, I guess I understand. What would you

2 say, without identifying who the witnesses are or anything like that, but

3 what's the maximum number of witnesses that are going to be called in

4 rebuttal against any one defendant? And you don't have to say what

5 defendant it is.

6 MS. SOMERS: Can I take a second?

7 [Prosecution counsel confer]

8 MS. SOMERS: Without being completely held to it --

9 JUDGE WALD: I understand. I understand. I'm just trying to --

10 MS. SOMERS: Maximally, maximally, five or six, and I --

11 JUDGE WALD: Five or six against one accused.

12 MS. SOMERS: Well, if there is, for example, a week, and there are

13 several points that were raised -- it's not the same point, but if several

14 points were raised, and again I have an idea of -- but that would be the

15 maximum, and if there are documents that go along with --

16 JUDGE WALD: Well, I understand the documents.

17 MS. SOMERS: -- we would provide them, or at least a summary of

18 the document, if it were in a phase pending translation. And that is an

19 outside figure. I'm trying not to go that road.

20 JUDGE WALD: Yes, I understand.

21 MS. SOMERS: But with the five-defendant case --

22 JUDGE RIAD: Ms. Somers, I tend to believe that you cannot judge

23 the capacity of the Defence lawyer with your capacity. When you say that

24 you can overnight, your machine is much bigger, so you have to make

25 allowance for their limited capacities.

1 MS. SOMERS: I appreciate that, Your Honour, and I understand

2 that.

3 JUDGE RIAD: Thank you.

4 MR. O'SULLIVAN: Your Honour, I have nothing further to add, but I

5 do wish to express apologies to Ms. Somers if she thought I was offensive

6 to her. I certainly did not intend that and I apologise if it was taken

7 way that. And I say to the Chamber that I never have and I never will act

8 in bad faith. I'm simply trying to defend my client within the law.

9 JUDGE RIAD: Mr. O'Sullivan, the fact still remains that you could

10 have drawn our attention before.

11 MR. O'SULLIVAN: Well, Your Honour, I didn't know if she had any

12 rebuttal evidence or not.

13 JUDGE RIAD: You know she is very active. You should have

14 expected that.

15 JUDGE RODRIGUES: [Interpretation] Just a moment. The Judges will

16 confer.

17 [Trial Chamber confers]

18 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, we would like

19 to have some additional information, please. What are you going to convey

20 to counsel on Friday? You spoke of a list of witnesses, et cetera.

21 However, will the witness statements be included or not? What are you

22 going to hand over?

23 MS. SOMERS: Your Honour, what we have hoped to have in hand would

24 be a table - I think it's nicer in table form - the name of the rebuttal

25 witness, the testimony at which he or she is aimed, the point to be

1 rebutted, and any witness statements that would be accompanying. Some may

2 or may not be fully translated, but if we have, certainly -- whatever

3 language we have available as of Friday, we turn over, and the other part

4 of it, either the B/C/S or the English, as soon as we have it in our

5 hands. But I would like to give as full a picture of what is required

6 from the Chamber's order in Krstic as is possible to know what evidence it

7 is. I think it's fair that they should know and that everybody should

8 know what the narrow point is. So I'd like to have the documents, the

9 statements, prior witness statements. And if I do not physically have any

10 documents or exhibits we might try to put in, at least, if they're not

11 ready, then at least itemise them or give a summary of what we would be

12 using in support of that witness' testimony, if anything. It may just be

13 verbal. But certainly have the 66 witness statements in whatever form we

14 would have them, if they exist. And if there is no statement, then a

15 summary, almost a 65-ter-style summary of the witness' proposed testimony

16 on the point of rebuttal.

17 JUDGE RODRIGUES: [Interpretation] So you are in a position to

18 provide all that on Friday?

19 MS. SOMERS: We will make ourselves in that position, Your

20 Honour. We represent to this Chamber in good faith that we will have, at

21 the very minimum, identified the names, the issues, the points of

22 rebuttal. If we have witness statements, we will turn over whatever form

23 we have them in; if there are no existing statements, then a summary of

24 the proposed testimony. But yes, yes.

25 JUDGE RODRIGUES: [Interpretation] Let us not repeat ourselves.

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1 Can you hand over anything today or tomorrow?

2 MS. SOMERS: I believe some names could be handed over tomorrow.

3 If we've been able to gather the documents, I would do what I could in

4 terms of the witness statements, if they're ready. But I think the names

5 could be prepared tomorrow.

6 JUDGE RODRIGUES: [Interpretation] So the decision of the Chamber

7 is as follows: You're going to communicate, at the latest, on Friday, all

8 the necessary elements for Defence counsel to be able to prepare. And

9 when the Chamber says "at the latest," that means that if you can

10 communicate certain elements today and tomorrow already, you should do so.

11 In that way, the Chamber is going to maintain the timetable that

12 has been established a long time ago. The Chamber cannot give a date now

13 but, if necessary, a date will be given.

14 The Defence counsel, by the end of next week, relating to the

15 evidence that they will receive from the Prosecutor, will notify the

16 Chamber of two things: First of all, whether there is any prejudice

17 regarding the rights of the accused. And secondly, which are the grounds,

18 what are the grounds and nature of that prejudice for the accused? So

19 that is the decision as regards that matter. I think we have finished our

20 discussion relating to this matter.

21 Mr. O'Sullivan, have you any other questions regarding the points

22 you have raised or not?

23 MR. O'SULLIVAN: No, that's fine, Your Honour.

24 JUDGE RODRIGUES: [Interpretation] Very well. From the

25 Prosecution, are there any points that require further clarification or

1 have we finished?

2 MS. SOMERS: If the Chamber would perhaps indicate, will there be

3 a similar order to the Defence on rejoinder once this type of order is

4 complied with by the Prosecution? At that point, it may be evident to the

5 Defence if they would be offering rejoinder evidence. That would be my

6 first concern.

7 And secondly, I do not know if counsel, because we may be

8 finishing our schedule ahead of time, if counsel will be remaining in The

9 Hague and if not, I would just be grateful to know locations so we can get

10 things to them if not personally delivered, then by fax or some equally

11 reliable way.

12 JUDGE RODRIGUES: [Interpretation] I think there are two points

13 here, whether the Chamber is going to issue another order, I think that is

14 not necessary. After all, Ms. Susan Somers, you accepted the risk so I

15 think there is good faith on the part of all parties, and I don't think

16 that the Defence is going to deliberately create problems for all the

17 Prosecution. If there is a problem, you will let us know.

18 As for the places of communication, after all, as you know, the

19 Chamber doesn't have addresses of Defence counsel. It is up to the

20 registry to take care of such things, or you can get in touch with counsel

21 directly so that no papers stay on here and they are gone and then the

22 Prosecution tells us that they sent the documents and you haven't received

23 them and so on.

24 So please take care of those things. It is not up to the Chamber

25 to get involved in such things.

1 I see you are on your feet, Ms. Susan Somers. Anything else?

2 MS. SOMERS: Your Honour, I'm afraid perhaps there is a

3 misunderstanding. I may not have been clear. Is the Chamber going to

4 issue the same order to the Defence on their rejoinder case, in other

5 words, in terms of lists of witnesses for rejoinder? I'm sorry if the

6 Chamber misunderstood me. I'm not asking for a written order on today's

7 about the Prosecution, but when it becomes clear what the rebuttal

8 evidence will be, will there be a similar requirement of the Defence, upon

9 the Defence? That was my question.

10 JUDGE RODRIGUES: [Interpretation] I must admit that I don't quite

11 understand what you are saying. I don't know whether there is a

12 translation problem. You are now asking the Chamber whether the Chamber

13 is going to issue another order similar or identical to this one; is that

14 what you are asking?

15 MS. SOMERS: On the Defence's rejoinder case. In other words, if

16 the Defence cares to put in additional evidence after the Prosecution's

17 rebuttal case, will the Chamber be minded to issue any time frames on

18 notifying the Prosecution just -- of its rejoinder witnesses. That would

19 be our question.

20 JUDGE RODRIGUES: [Interpretation] Maybe it's fatigue, Ms. Susan

21 Somers, but that was not the question raised by Mr. Stojanovic, was it?

22 I'm sorry.

23 [Trial Chamber confers]

24 JUDGE RODRIGUES: [Interpretation] As far as I am able to

25 understand the question, I think we are more or less in the same

1 situation, mutatis mutandis, the same decision applies. But I think we

2 might fall in a situation, and maybe I am obsessive in a situation raised

3 by Mr. Stojanovic because we have to respect the seven-day time limit.

4 Mr. Stojanovic noted quite well that this day falls on the 3rd of

5 June, a Sunday. And therefore, at the end, this boils down to the same

6 question and your response to this was that very often, the Prosecutor has

7 to work with even shorter time limits. So I understood that you

8 accepted.

9 Now, you have asked the question and the answer is that the

10 decision applies mutatis mutandis which means that you will have to accept

11 that the counsel communicate to you by the 5th or something like that.

12 But we can't be rigid because, as you know, you will finish your rebuttal

13 on the 1st of June which is a Friday.

14 So it's rather difficult to provide the time. So we have to be

15 flexible. The decision applies mutatis mutandis with a grain of salt

16 between people who have control over the situation and who do not want to

17 make problems when problems can be avoided.

18 Are things clear now?

19 MS. SOMERS: I think they are, Your Honour. I was also just

20 trying to have in our hands some idea, a list, a similar type of list, and

21 I understand there may be a reduced time because of weekends. That wasn't

22 so much the issue, it was more a mutuality of listings.

23 JUDGE RODRIGUES: [Interpretation] For me, it was clear from the

24 very beginning because I think that the Defence never wanted to impose a

25 rule on the Prosecutor which it did not wish to accept for itself. That

1 was my impression, maybe I was mistaken, but for me it was clear. Maybe

2 it's even clearer now.

3 So I think we are all a little tired by now and we need to adjourn

4 because though we are tired, we have a lot to do. As you know, this is

5 not the only case in the Tribunal. The Chamber is involved in several

6 cases and we have other obligations, and we forget when we're involved in

7 this particular case that it has a world of its own, but there are

8 others. But today we will adjourn.

9 Thank you very much for your cooperation and we -- I am assured

10 that we will continue like that until the very end. So success in your

11 work and we meet again on the 28th of May.

12 --- Whereupon the hearing adjourned

13 at 3.27 p.m., to be reconvened on Monday

14 the 28th day of May, 2001, at

15 9.20 a.m.

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