1 Monday, 28 May 2001

2 [Open session]

3 --- Upon commencing at 10.20 a.m.

4 [The accused entered court]

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

6 seated.

7 Good morning, ladies and gentlemen; good morning to the technical

8 booth, the interpreters, representatives of the registry; good morning,

9 counsel, the Prosecution, the Defence.

10 We will begin with the rebuttal of the Prosecutor today, but

11 before we proceed with the rebuttal evidence, the Chamber needs to render

12 a ruling concerning the list of witnesses which were proposed for the

13 rebuttal.

14 On the 18th of May, 2001, the Prosecutor submitted a list of 11

15 witnesses that he wanted to call before the Chamber as part of its case in

16 rebuttal. On the 22nd of May, the Prosecutor withdrew one of the

17 witnesses from the list. Out of ten remaining witnesses, two in

18 particular were related to the accused Mr. Kvocka; four of them, the

19 accused Mr. Zigic; and four, the remaining four, were related to the

20 accused Mr. Prcac. The Defence of the accused Kvocka, Zigic, and Prcac

21 submitted written submissions opposing the appearance of these witnesses

22 to the extent, in particular, first of all, that their deposition, their

23 testimony, concerned fundamental issues of the Prosecutor's case and, as

24 such, should have been heard during the Prosecution case in chief.

25 Second, or rather, at the same time, these witnesses of the

1 Defence -- excuse me. Let me correct myself. Secondly, or at the same

2 time, these witnesses would be called in order to challenge the

3 allegations made by the Defence witnesses, in particular in relation to

4 the accused, in respect of which the Prosecutor should have expected such

5 testimony.

6 The Chamber should first of all like to remind you that the

7 parties were notified on several occasions of the fact that the Chamber

8 would strictly interpret the provisions concerning the rebuttal and the

9 rejoinder stages of the trial. In view of that perspective, the Chamber

10 notes that, generally speaking, the witnesses mentioned by the Prosecutor

11 will come to testify about the events related to the indictment or in

12 order to challenge the allegations, such as the fact that one of the

13 accused, for example, did not have a discriminatory attitude towards

14 Muslims, that is to say, in respect of whom the Prosecutor should have

15 reasonably expected that such attitude should go in favour of the Defence,

16 to the benefit of the Defence.

17 In view of the number of criminal incidents which are contained in

18 the indictment and the number of the accused, and also the nature of the

19 defence of each of the accused, it would not be adequate not to authorise

20 any rebuttal by the Prosecutor. In view of such circumstances, the

21 Chamber orders that within the rebuttal of the Prosecutor, only the

22 [redacted]

23 MS. SOMERS: Excuse me, Your Honour. May we request private

24 session for the names. That was filed confidentially in our measures.

25 Thank you very much.

1 JUDGE RODRIGUES: [Interpretation] Yes. You're quite right,

2 Ms. Somers. Let us move into private session, please.

3 [Private session]

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13 [Open session]

14 JUDGE RODRIGUES: [Interpretation] As regards the ruling that we

15 have just read out, only the names of the witnesses need to be mentioned

16 in private session. Only two of the witnesses, I think, are protected,

17 that is, protective measures have been requested in respect of that. The

18 remainder of the decision is public, so the names of the witnesses will

19 not be mentioned in public whereas the text itself of the decision is

20 public.

21 There was another issue that I wanted to bring up and a question

22 that I wanted to ask before we proceed with the rebuttal, namely the issue

23 of protective measures. The Prosecutor has requested protective measures

24 in respect of several witnesses, and I think that in accordance with the

25 ruling that the Chamber has just rendered, only two witnesses are subject

1 of such protective measures.

2 So far, the Defence has not expressed its view of the request for

3 protective measures and before we make a ruling, we should like to hear

4 the opinion of the Defence. So once again, we will move into private

5 session to discuss the issue of protective measures.

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6 [Open session]

7 JUDGE RODRIGUES: [Interpretation] We're going to have a break now

8 and then come back to continue with the hearing of the case.

9 Thirty-minute break.

10 --- Recess taken at 10.55 a.m.

11 --- On resuming at 11.34 a.m.

12 JUDGE RODRIGUES: [Interpretation] You may be seated.

13 The Chamber has already made a decision with respect to protective

14 measures. There was a point that was the object of exchanges between the

15 parties, the problem of communication, and the Chamber considered this

16 matter and didn't communicate it but we had it in our minds. The Defence

17 is going to have an opportunity to cross-examine the witness with all the

18 additional elements of information available and will also have a chance

19 to present evidence, if necessary, in order to contest what the witness

20 has said and so on and so forth. So the Defence will always have occasion

21 to do this in the rejoinder.

22 So I don't think that there is any prejudice with respect to the

23 accused, and thereby we have allowed you the possibility of contesting any

24 of the elements put forward. So the Chamber has decided to go ahead

25 straight away with the work in hand, that is to say, to hear the next

1 witness. Having said that, [redacted]

2 [redacted]

3 MS. SOMERS: The name is a protected name, and I wonder if we

4 would redact -- I'm terribly sorry.

5 JUDGE RODRIGUES: [Interpretation] Yes, you're quite right. I do

6 apologise.

7 Madam Registrar, what will be the pseudonym for this witness, for

8 the witnesses? We have to refer to them in some way, don't we?

9 THE REGISTRAR: Yes. The pseudonym would be AW.

10 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

11 Let us now hear Witness AW.

12 [The witness entered court]

13 JUDGE RODRIGUES: [Interpretation] Good morning, Witness AW. Can

14 you hear me?

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

16 JUDGE RODRIGUES: [Interpretation] We're going to refer to you as

17 Witness AW because you have been accorded protective measures. You will

18 now read the solemn declaration handed to you by the usher. Please go

19 ahead.

20 THE WITNESS: I solemnly declare that I will speak the truth, the

21 whole truth, and nothing but the truth.

22 WITNESS: WITNESS AW

23 [Witness answered through interpreter]

24 JUDGE RODRIGUES: [Interpretation] Please be seated. You are now

25 going to be shown a piece of paper which should have your name on it.

1 Please give us a yes or no answer as to whether it is, indeed, your name.

2 THE WITNESS: [Interpretation] Yes, that's me.

3 JUDGE RODRIGUES: [Interpretation] Very well. Let me start off by

4 thanking you for coming. You are going to start off by answering

5 questions put to you by the Prosecution, and then by the Defence, and then

6 possibly later on by the Judges. But before we begin, we shall have to

7 wait a few moments for the blinds to be raised.

8 Mr. Saxon, I think we can start now. Your witness. Go ahead,

9 please.

10 MR. SAXON: Thank you, Your Honour. Your Honour, before we

11 proceed, could we go into private session for a minute or two, please?

12 That's so I don't ask questions that will identify the witness to the

13 public.

14 JUDGE RODRIGUES: [Interpretation] Yes, you are quite right.

15 Let us move into private session for a few moments.

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8 JUDGE RODRIGUES: [Interpretation] We are in open session,

9 Mr. Saxon. Please proceed.

10 MR. SAXON: Thank you.

11 Q. Witness AW, what is your ethnicity?

12 A. I'm a Muslim.

13 Q. What is the ethnicity of your sister and your brother-in-law?

14 A. Muslims.

15 Q. In November 1990, did your employment change?

16 A. Yes.

17 Q. Did you take up a new position; and if so, what was that?

18 A. I moved and became the komandir of the reserve force of the

19 police, and I was the komandir or leader for several municipalities of

20 Prijedor.

21 Q. Did your reserve police unit have regular training?

22 A. Yes.

23 Q. How often would you have training?

24 A. Some of them had training every day, but we were on duty with the

25 regular police force every day.

1 Q. How long did you work as a reserve police commander?

2 A. Until the beginning of the war in 1992.

3 Q. During that time, did you come to know any of the professional

4 policemen in Prijedor?

5 A. Yes.

6 Q. During that time, did you know a man named Miroslav Kvocka?

7 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Krstan Simic.

8 THE INTERPRETER: Microphone, please. Microphone, Mr. Krstan

9 Simic.

10 MR. K. SIMIC: [Interpretation] I have a feeling that this is a

11 testimony from the case in chief, in the way in which this witness is

12 being questioned, the breadth of the questioning.

13 JUDGE RODRIGUES: [Interpretation] Mr. Saxon.

14 MR. SAXON: Your Honour, if the witness is later on going to

15 mention, perhaps, the accused Kvocka and Mr. Momcilo Gruban, I first have

16 to establish, through the witness, how he came to know these people. That

17 is the purpose of these questions, Your Honour.

18 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic.

19 MR. K. SIMIC: [Interpretation] From the context of this, what does

20 the training of policemen have to do and all the rest that was asked?

21 MR. SAXON: Should I respond, Your Honour?

22 JUDGE RODRIGUES: [Interpretation] Yes, go ahead.

23 MR. SAXON: It will prove that -- the witness will explain that it

24 was in this context that he came to know Miroslav Kvocka. So I have to

25 explain the context first.

1 JUDGE RODRIGUES: [Interpretation] Okay. Mr. Krstan Simic, we

2 could go faster, but I really do think we should set a framework with the

3 questions.

4 So Mr. Saxon, please continue, but thank you, Mr. Simic, for

5 drawing my attention to that. Please proceed.

6 MR. SAXON:

7 Q. During the time prior to the start of the armed conflict, Witness

8 AW, did you know a man named Miroslav Kvocka?

9 A. Yes.

10 Q. How did you come to know Miroslav Kvocka?

11 A. I met him because he lived where I do at Pecani, and also I met

12 him while I was in the reserve police force because, together with the

13 professional police force, we undertook certain tasks in the Prijedor

14 municipality.

15 Q. After the war began in 1992, were you detained?

16 A. Yes.

17 Q. When?

18 A. At the beginning of June 1992.

19 Q. Where were you detained?

20 A. In Keraterm.

21 Q. How much time did you spend in Keraterm?

22 A. I was there until the end of June, July, and the beginning of

23 August 1992.

24 Q. From Keraterm, where did you go?

25 A. I went to Trnopolje.

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1 Q. Was this the Trnopolje camp?

2 A. Yes.

3 Q. How long were you detained in Trnopolje?

4 A. About ten days.

5 Q. After your release from Trnopolje, where did you go?

6 A. I returned to my apartment in Pecani.

7 Q. How long did you and your family remain in Prijedor?

8 A. I remained there until the 29th of March 1994.

9 Q. Witness AW, did your brother-in-law survive the war?

10 A. No.

11 Q. What happened to him?

12 A. In June 1992, he was killed by the Serb police or army, I don't

13 know which, in front of his house.

14 Q. And where was that home?

15 A. In Carakovo.

16 Q. You mentioned that you knew a man named Momcilo Gruban. Prior to

17 the war, did Momcilo Gruban know that your sister and brother-in-law were

18 wealthy?

19 A. Yes.

20 Q. In early 1993, did you have any contact with Momcilo Gruban?

21 A. Yes.

22 Q. Can you explain what that contact was?

23 A. There was a telephone call. He worked in the police station at

24 Omarska and he called me and said that, bearing in mind that my

25 brother-in-law and sister were well-to-do, that I ought to go and dig up

1 the gold and money that they had hidden.

2 Q. Did you feel at that time that you could choose to follow

3 Mr. Gruban's wishes or not?

4 A. No.

5 Q. Why not?

6 A. From early experience gained in a camp and everything that had

7 been done thus far, I didn't have a choice. I suppose my fate would have

8 been a difficult one.

9 Q. What, if anything, during that telephone call, then, did Momcilo

10 Gruban tell you to do?

11 A. He said that the next day at about noon, that he would come by

12 with a colleague of his, in front of my apartment, that is, and that we

13 should then go to the village of Carakovo to get the gold and the money.

14 Q. After you received that telephone call from Momcilo Gruban, what

15 did you do?

16 A. I called up my sister. She was in the Tukovi settlement as a

17 refugee, and half an hour later, I went to see her directly to tell her

18 about the telephone call that I had received.

19 Q. And how did your sister react?

20 A. She was very much afraid. She was frightened that I wouldn't

21 survive, that I wouldn't live through it all if I went off with them to

22 Carakovo village.

23 Q. And what did you tell your sister?

24 A. In order to protect her as her husband had already been killed and

25 she had two small children, I decided to go instead of her to Carakovo.

1 Q. Did your sister tell you where her gold was hidden by the house in

2 Carakovo?

3 A. Yes.

4 Q. Where did she tell you, or approximately where did she tell you

5 the gold would be hidden?

6 A. The gold was along the wall of the shed, and the money was buried

7 where the chickens were, in the chicken coop.

8 Q. So Witness AW, then, on the following day, what happened? What

9 did you do?

10 A. After 12.00, after noon, Momcilo Gruban arrived and Miroslav

11 Kvocka with their car. They came in front of my building to fetch me to

12 go to the village of Carakovo.

13 Q. When you say "Miroslav Kvocka," is this the same Miroslav Kvocka

14 that you knew as a neighbour of yours and as a member of the police

15 force?

16 A. Yes.

17 Q. How were Mr. Kvocka and Mr. Gruban dressed that day?

18 A. Mr. Gruban was wearing a uniform of the reserve police force. It

19 was blue. And Mr. Miroslav Kvocka was wearing a camouflage military

20 uniform.

21 Q. Were Mr. Kvocka and Mr. Gruban armed that day?

22 A. Yes. Both Mr. Gruban and Mr. Miroslav Kvocka had automatic rifles

23 and pistols.

24 Q. What equipment, if any, did Mr. Gruban and Mr. Kvocka have with

25 them?

1 A. In the car, there was a shovel and cramp which -- and pick which

2 they had prepared to do the digging with.

3 Q. And how did they act at that time?

4 A. They looked happy.

5 Q. Who drove out to Carakovo?

6 A. Miroslav Kvocka did.

7 Q. Did you have to pass through any checkpoints on the way to

8 Carakovo?

9 A. Yes.

10 Q. How would you get through the checkpoints?

11 A. Nobody stopped us, except when we passed by the checkpoint, they

12 would raise their three fingers in the Serb national form of address.

13 Q. When you say "they would raise their three fingers," who are you

14 referring to?

15 A. Miroslav Kvocka and Momcilo Gruban. They were sitting in front.

16 Q. Do you know whose car it was that was used that day? Who did the

17 car belong to?

18 A. I do. It belonged to Miroslav Kvocka.

19 Q. When you arrived at the home of your sister and brother-in-law in

20 Carakovo, what condition was the house in?

21 A. The house had no roof, windows, or door, and the shed and other

22 out house were in a state of disrepair.

23 Q. What, if anything, did Mr. Gruban and Mr. Kvocka do when you

24 arrived at the house?

25 A. They took out the shovel and pickaxe from the boot of the car and

1 they told me to start digging straight away and look for the gold.

2 Q. While you dug that day, what were Mr. Kvocka and Mr. Gruban doing?

3 A. They were standing nearby, both of them carrying the automatic

4 rifles in their hands.

5 Q. And if you recall, where were these rifles pointed?

6 A. The rifles were pointed towards me as I was digging.

7 Q. Witness AW, while you dug, what, if anything, did Mr. Kvocka tell

8 Mr. Gruban to do?

9 A. As it was early spring and it got dark quickly, the two of them

10 were talking, and I heard them say -- that is to say, I heard Miroslav

11 Kvocka tell Miroslav Gruban [as interpreted] to hurry up,

12 otherwise -- they told me to hurry up, and if we didn't find anything, I

13 could be dug in myself.

14 Q. Now, just so that the record is clear, did Miroslav Kvocka tell

15 Mr. Gruban to hurry up or did Miroslav Kvocka tell Mr. Gruban to tell you

16 to hurry up?

17 A. Miroslav Kvocka told Mr. Gruban, and Mr. Gruban conveyed what he

18 had said to me.

19 Q. When you say that you heard the words "you could be dug in

20 yourself," does that mean you would be buried there?

21 A. Yes.

22 Q. How far away from you was Mr. Kvocka when you heard this comment?

23 A. Five to six metres away from me.

24 Q. Did you recognise Mr. Kvocka's voice?

25 A. Yes.

1 Q. Were you afraid?

2 A. Yes.

3 Q. On that day, did you find the gold?

4 A. No.

5 Q. As you were digging, eventually did darkness begin to fall?

6 A. Yes.

7 Q. When it was getting dark, what, if anything, did Mr. Gruban tell

8 you?

9 A. Mr. Gruban said that as we hadn't found the gold, we should come

10 earlier the next day and that I was to take my sister along with me.

11 Q. Witness AW, did you feel that you had any choice as to whether or

12 not you would return the next day to search for the gold?

13 A. No. I had no choice. I had to go.

14 Q. Why did you feel that you had to go?

15 A. Because I don't think I would have survived had I refused.

16 Q. Witness AW, as you drove back to Prijedor that day, who was

17 driving?

18 A. Miroslav Kvocka.

19 Q. And as you approached Pecani, what, if anything, did Mr. Kvocka

20 tell you to do the next day?

21 A. He looked at his rearview mirror and he was disappointed because

22 they hadn't found anything, and he said, "If we don't find the gold and

23 the money, somebody the following day might --"

24 THE INTERPRETER: Could the witness repeat what he said, please.

25 MR. SAXON:

1 Q. Witness AW, can you please repeat again, slowly and clearly, what

2 Mr. Kvocka said in the car.

3 A. As we drew closer to Prijedor, Momcilo Gruban was sitting next to

4 Miroslav Kvocka. Miroslav Kvocka was driving the car. And before that,

5 the two of them talked about something. And he looked at his rearview

6 mirror and he could see me sitting on the back seat, and he said, "If we

7 don't find the gold and the money, someone's body might float down the

8 River Sana."

9 Q. Witness AW, just so the record is clear, who made this comment?

10 A. Miroslav Kvocka.

11 Q. Does the River Sana run by the town of Prijedor?

12 A. Yes, and through Carakovo village too.

13 Q. And as you arrived in Pecani, what, if anything, did Mr. Kvocka

14 say to you, if you recall?

15 A. We stopped by Kvocka's garage, and he said that the next day, in

16 the morning, we should start out earlier, together with my sister, and

17 this would give us more time for the digging, so that we could find the

18 money and the gold.

19 Q. All right. Witness AW, would you like to have some water?

20 A. No, thank you. I'm fine.

21 Q. Okay. What happened on the following day?

22 A. I told my sister that she should come to my apartment in Pecani

23 before noon, and so before 12.00, my sister and I went to Kvocka's garage

24 at Pecani.

25 Q. And who, if anyone, did you meet at Mr. Kvocka's garage?

1 A. In front of Mr. Kvocka's garage were Miroslav Kvocka and Momcilo

2 Gruban.

3 Q. What equipment, if any, did Mr. Kvocka and Mr. Gruban have with

4 them that day?

5 A. The same equipment that they had the previous day, and they were

6 wearing the same things, the same clothing, and they had the same weapons

7 as well.

8 Q. When you say "the same equipment," are you referring to the pick

9 and the shovel?

10 A. Yes, the pick and the shovel, and the uniforms too.

11 Q. And did they have the same automatic rifles?

12 A. Yes.

13 Q. During the drive to Carakovo that day, who drove?

14 A. Miroslav Kvocka did.

15 Q. And what, if anything, did your sister say during that drive?

16 A. Prior to arriving at Carakovo, my sister cried a lot and she said

17 that she would show the place where the money and gold were straight away

18 but just they should leave me alone and not beat me.

19 Q. When your sister said that she had money, what currency was she

20 referring to, if you know?

21 A. She was referring to German marks.

22 Q. What was said when you arrived at the house in Carakovo?

23 A. They took out the shovel and pick and told me -- my sister showed

24 me where the gold was straight away, where the gold was buried. And he

25 said that I should start digging straight away and not waste any time.

1 Q. Who said that you should start digging straight away?

2 A. Miroslav Kvocka.

3 Q. And what happened then? Did you begin to dig?

4 A. I started digging right away, and Momcilo Gruban took the shovel,

5 took up the shovel and helped me so that we could get at the gold quicker.

6 Q. Did Mr. Kvocka ever dig?

7 A. No.

8 Q. What was Mr. Kvocka doing at this time?

9 A. He was standing several metres away from us, holding the rifle.

10 He said he was standing guard.

11 Q. Did you find anything?

12 A. Very quickly, we found the gold.

13 Q. And where was the gold contained?

14 A. In a plastic box about two metres [as interpreted].

15 Q. Just so the record is clear, was the box two metres long, or do we

16 have a translation problem?

17 A. Two litres. It was a plastic two-litre container, like this.

18 Q. What did Mr. Gruban do with the box after it was found?

19 A. He took the box and gave it to Miroslav Kvocka and he placed it in

20 the car.

21 Q. Do you know what was in the box?

22 A. Momcilo opened -- took the lid off and saw the gold inside.

23 Q. Was there also some jewellery?

24 A. It was mostly golden jewellery but there were also some -- less,

25 things that weren't worth much, costume jewellery, bracelets and the

1 like.

2 Q. After Mr. Kvocka returned from the car, what, if anything, did he

3 say?

4 A. That we should try and locate the money, that is the German marks,

5 as soon as possible, which were buried in the other side.

6 Q. Did you try and find the money?

7 A. Yes. Again, he was helping me. I was digging with the pick, and

8 Momcilo Gruban was also digging in order to help me so that we could find

9 the money as soon as possible.

10 Q. What was Miroslav Kvocka doing while you and Mr. Gruban were

11 digging for the money?

12 A. He was standing not far away from us, some five or six metres away

13 from us, holding a rifle.

14 Q. Did you find the money that day?

15 A. No, we didn't find the money. Again, it was getting dark and we

16 didn't have any lamps, anything we could use to continue working during

17 the night.

18 Q. Well, eventually did the group drive back to Pecani?

19 A. Yes, we did. When it got dark, we returned to Pecani to Miroslav

20 Kvocka's garage.

21 Q. And when you arrived at Miroslav Kvocka's garage, what happened?

22 A. My sister was told to go back to her apartment. Her children were

23 at my place. And they kept me there.

24 Q. All right. And while you remained at the garage, what happened

25 there?

1 A. Since there was no electricity, Miroslav Kvocka plugged the car

2 battery in the garage so that we can have some light.

3 Q. And then once there was some light, what happened then?

4 A. Then they took this plastic box and they emptied it of its

5 contents on a wooden table, on a long wooden table which was on the

6 right-hand side of the garage.

7 Q. And then what did Mr. Kvocka and Mr. Gruban do with the contents

8 of the box when it was on the table?

9 A. They put the necklaces, bracelets, and rings on the table. They

10 sorted them out in size, and they started dividing the jewellery between

11 the two of them so that each would get the -- an equal share.

12 Q. Was any of the gold given to you?

13 A. I didn't get anything of the gold.

14 Q. Were there any valuable pieces of jewellery?

15 A. All items that were in gold were divided between the two of them,

16 between Kvocka and Gruban. As for the costume jewellery, they put it all

17 on one place, put it back in the box and told me to bring it back to my

18 sister. So whatever was not gold I could take to my sister.

19 Q. Before you left that garage that day, what, if anything, did

20 Miroslav Kvocka and Mr. Gruban say to you about what you should say or

21 shouldn't say?

22 A. Both of them, Kvocka and Gruban, warned me that I should not speak

23 about it to anyone nor should anyone see me, see the direction I was going

24 from towards my apartment.

25 Q. Did anyone tell you what would happen if you did speak about these

1 events?

2 A. Both Gruban and Kvocka told me that I would lose my head and

3 perhaps they, too, would lose their heads.

4 Q. Were any plans made for the following day?

5 A. Yes. On the following day, again, around 12.00, around noon I was

6 told to come to the garage but without my sister this time so that we can

7 continue searching for money.

8 Q. And what happened on the following day?

9 A. Again, I was there at noon o'clock [as interpreted] in front of

10 Kvocka's garage at Pecani.

11 Q. And what did you do that day?

12 A. We headed towards Carakovo, again in an attempt to find the money

13 because, in those days, the German marks were much more valuable than the

14 gold.

15 Q. And were you again with Mr. Kvocka and Mr. Gruban?

16 A. Yes.

17 Q. And when you got to Carakovo that day, what happened?

18 A. The snow was melting, and the level of the Sana River was mounting

19 due to some heavy rains. And the courtyard of my sister's house was

20 covered with water. It was flooded.

21 Q. So were you able to search that day for the money?

22 A. No, we were not, because of this huge amount of water.

23 Q. What, if anything, did Miroslav Kvocka tell you about looking for

24 the money in the future?

25 A. That we would wait for some better weather and that we would come

1 back one day to find the money.

2 Q. Witness AW, can you describe how Miroslav Kvocka looked in 1993?

3 A. He was slightly taller than myself, 1 metre and 82 centimetres,

4 thereabouts, clean-shaven, with receding hair, of medium build. His hair

5 was brown.

6 Q. About how old would Mr. Kvocka have been in 1993, approximately?

7 A. About 35.

8 MR. SAXON: Your Honour, at this time I have no further

9 questions.

10 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Saxon.

11 Mr. Simic, Krstan Simic.

12 MR. K. SIMIC: [Interpretation] Your Honours, I should like to

13 request a brief break at this point so that I could discuss these issues

14 with my client, because we have heard for the first time now about these

15 incidents, and I think we should be granted appropriate time in order to

16 prepare ourselves for the cross-examination.

17 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Saxon.

18 MR. SAXON: I only need to point out, Your Honour, that Mr. Kvocka

19 was asked about this incident during his cross-examination in

20 mid-February, and Mr. Kvocka acknowledged that in certain ways he

21 participated in this incident with this witness. So it seems to the

22 Prosecution that the Kvocka Defence has had two months to discuss this

23 part of their Defence.

24 MR. K. SIMIC: [Interpretation] Your Honour, I will be pleased to

25 respond to my learned colleague's remark. It is correct that Mr. Kvocka

1 in his testimony spoke about this particular issue as well. He spoke

2 about everything he was asked about. However, what he has just heard

3 today is really the first time that this particular incident is

4 specifically mentioned. In principle, we are ready to proceed right away,

5 but we should like to be allowed some time so that we can discuss.

6 [Trial Chamber confers]

7 JUDGE RODRIGUES: [Interpretation] We will have a lunch break at

8 this point, then. I think that this afternoon we will hear an expert

9 witness, Mr. Nedopil. Am I correct, Ms. Somers?

10 MS. SOMERS: Yes, Your Honour, we will.

11 JUDGE RODRIGUES: [Interpretation] So it means that we will

12 continue with the cross-examination of this witness tomorrow, so you will

13 have more time than you thought you would have, because we have to hear

14 another witness this afternoon.

15 So Witness AW, we will continue your testimony tomorrow, as you

16 have just heard.

17 We will now have a lunch break.

18 I'm sorry. I see Mr. Simic on his feet.

19 MR. K. SIMIC: [Interpretation] Your Honours, it is obvious, after

20 this testimony, that Mr. Saxon must have had a statement from this witness

21 for such a detailed testimony. That statement was not disclosed. And in

22 accordance with Rule 66, we request once again for that statement to be

23 disclosed, because such a testimony, such an examination, without any

24 statement, is simply not possible, because Mr. Saxon is not a clairvoyant.

25 JUDGE RODRIGUES: [Interpretation] But Mr. Saxon has a number of

1 qualities as a Prosecutor, but it doesn't simply -- it doesn't mean that

2 Mr. Saxon must have a written statement.

3 Is that what you're talking about, Mr. Simic, a written statement

4 from the witness?

5 MR. K. SIMIC: [Interpretation] Your Honour, Rule 66 -- according

6 to Rule 66, any such interview and conversation constitutes a statement.

7 JUDGE RODRIGUES: [Interpretation] Yes, but I would like to know

8 whether you're referring to a written statement in particular.

9 THE INTERPRETER: Microphone.

10 MR. K. SIMIC: [Interpretation] Yes, a statement or a note about

11 the interview that was conducted with the witness.

12 JUDGE RODRIGUES: [Interpretation] Mr. Saxon, do you wish to

13 respond?

14 MR. SAXON: Yes, Your Honour. I think that Mr. Simic needs to

15 read the Rules more carefully. What Rule 66 requires us to provide are

16 statements, in other words, written statements of a witness. This witness

17 has not provided the OTP with any written statements, nor does the

18 Prosecution have in its possession any signed written statements produced

19 in the past by this witness. The fact that the Prosecution may have had

20 conversations with this witness - and quite frankly, during this past

21 week, obviously we did to prepare the witness for this testimony - but any

22 notes that are made from conversations with a witness are the work product

23 of the Prosecution and under Rule 70 are not subject to disclosure to the

24 Defence.

25 JUDGE RODRIGUES: [Interpretation] We will continue with the

1 testimony of this witness tomorrow. Mr. Simic, maybe by tomorrow you will

2 receive a written statement [as interpreted], and I also think that you

3 can work on the basis of the transcript.

4 [Trial Chamber confers]

5 MR. SAXON: Your Honour, was I not clear?

6 JUDGE RODRIGUES: [Interpretation] Excuse me. I'm sorry, but my

7 words have been misinterpreted. Judge Wald has drawn my attention to the

8 fact -- I didn't say that Mr. Simic would have tomorrow a written

9 statement. I didn't say that. I said that for tomorrow he can have the

10 transcript, the record of the hearing. That is what I said. I didn't say

11 that Mr. Saxon would invent a previous statement to give it to Mr. Simic.

12 I said that by tomorrow Mr. Krstan Simic could have, as an aid, the

13 transcript of the hearing. That is what I said. I think that we have

14 this problem very often. I hope that I will have an official French

15 version of what I said so that I can defend myself.

16 We will have a break at this point, one-hour break.

17 Would the usher please escort the witness out of the courtroom and

18 can we have the blinds lowered down, please.

19 [The witness withdrew]

20 JUDGE RODRIGUES: [Interpretation] One-hour break.

21 --- Recess taken at 12.26 p.m.

22 --- On resuming at 1.33 p.m.

23 JUDGE RODRIGUES: [Interpretation] Please be seated.

24 I think that we have Mr. Stojanovic now. I'm going to give him

25 the floor once we have heard, according to the ruling made by the Trial

1 Chamber previously, the expert witness, Dr. Nedopil. Is that right,

2 Mr. Stojanovic?

3 MR. STOJANOVIC: [Interpretation] If you have given me the floor,

4 Your Honour?

5 JUDGE RODRIGUES: [Interpretation] I'm looking at the transcript.

6 I didn't say that we heard the witness; we're going to hear the expert

7 witness. I apologise to the interpreters who are doing a great job, but

8 we haven't heard the witness. We are going to hear the witness now. What

9 we did in the past was to decide what we're going to do now. So I hope

10 that makes matters clear.

11 Mr. Stojanovic.

12 MR. STOJANOVIC: [Interpretation] Quite so, Your Honour. My -- our

13 next witness is the expert witness, Dr. Norbert Nedopil, from Germany.

14 May he be introduced to the Court. Let me say that the witness expressed

15 the desire to have an interpreter for German. He would have liked to have

16 an interpreter for German but, as far as I am aware, he knows English well

17 and he will make his presentation in English. He will be speaking in

18 English but he would like to ask us to proceed slowly and for the

19 interpretation to be slow so that our expert witness can follow. Thank

20 you.

21 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, please remind

22 me, I think that we accorded 20 minutes to the Prosecutor. Are we going

23 to start out from the principle that you are going to offer your report --

24 tender the report as the examination-in-chief or are you going to actually

25 ask the expert witness questions or will you just be tendering the report

1 in lieu of that?

2 MR. STOJANOVIC: [Interpretation] Your Honour, I think the first

3 variant that you mentioned; the former. We propose that the report be

4 adopted and the Prosecution will use its right to cross-examination. So

5 the Prosecution goes first, and we retain the right to ask some additional

6 questions after the Prosecutor has conducted his examination.

7 JUDGE RODRIGUES: [Interpretation] Very well. Mr. Usher, please.

8 [The witness entered court]

9 JUDGE RODRIGUES: [Interpretation] Good afternoon, Dr. Norbert

10 Nedopil, can you hear me?

11 THE WITNESS: Yes, I can.

12 JUDGE RODRIGUES: [Interpretation] Okay. Would you now please read

13 the solemn declaration that the usher is going to hand to you.

14 THE WITNESS: I solemnly declare that I will speak the truth, the

15 whole truth, and nothing but the truth.

16 WITNESS: NORBERT NEDOPIL

17 JUDGE RODRIGUES: [Interpretation] Please be seated.

18 THE WITNESS: Thank you.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much for coming.

20 We know that you have a lot of work to do so we thank you for setting

21 aside the time to come. I was told that you would be speaking in English

22 and that you have asked us to speak slowly and the interpreters to

23 interpret slowly. I think that the interpreters will be very happy

24 because that is what they are always asking us for in their daily

25 practice. So we are going to make a gift to the interpreters this

1 afternoon, and you'll have the opportunity of speaking as slowly as you

2 like and they will do the same.

3 We have no time constraints today and so, Doctor, you will now be

4 answering questions put to you by the Prosecutor with respect to your

5 report and then, after that, the Defence counsel will probably have

6 additional questions to ask you, and the Judges as well.

7 So without further ado, I give the floor to Ms. Susan Somers and

8 the Prosecution.

9 MS. SOMERS: Thank you very much, Your Honour.

10 Cross-examined by Ms. Somers:

11 Q. Dr. Nedopil, I will be forced to speak very slowly, which is not

12 my habit, and I hope you will bear with me and tell me if I speak too fast

13 for you. Thank you.

14 Doctor, in order to make the best use of time for all parties, I

15 have made references to a number of -- things I'd ask for clarification on

16 in your report and I will refer to the English. Do you have a copy of

17 your own report in English?

18 A. No, I do not.

19 Q. If I may ask my colleague to present you with one so that it might

20 be of some assistance. In the meantime, I will just go ahead and ask some

21 basic questions, if I may.

22 For clarification, Doctor, effectively the only source of

23 information for the report which you and Dr. Hoff worked on jointly was

24 Zoran Zigic, the accused himself. Is that accurate?

25 A. That is not accurate. We also had the indictment and some notes

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3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the French

14 and the English transcripts.

15

16

17

18

19

20

21

22

23

24

25

1 to the indictment.

2 Q. Okay.

3 A. And then we had some medical reports that were given to us by

4 Mr. Zigic.

5 Q. And those reports, if I read correctly your report, concern

6 injuries from 1992?

7 A. Right.

8 Q. There was a point in your report on the English page 7, and I'll

9 just read it to you since you don't yet have it in front of you:

10 "The examined individual refused permission to the assessors --"

11 yourself and Dr. Hoff, I believe -- "to examine the medical documents for

12 the period 1998 to 2000, as prepared in the penitentiary institution."

13 Was there a particular explanation offered to you by Zigic for the

14 refusal?

15 A. No. This was a conversation that Mr. Zigic had with Dr. Hoff, and

16 I'm not quite familiar with the arguments that Mr. Zigic used towards

17 Dr. Hoff. So I just know that he refused it.

18 Q. Doctor, I realise that there are always time limitations on these

19 examinations, but were you afforded enough opportunity to conduct a

20 battery of exams or I guess what I've been told is called a mental status

21 exam? What was the time frame permitting you to do that?

22 A. I could have had all the time I needed. I stopped when I felt

23 familiar with Mr. Zigic and I was confident to give an exact opinion on

24 him. So there was no time frame given to me, but the time frame was set

25 by myself and Dr. Hoff.

1 Q. Doctor, you have had occasion, as a very prominent forensic

2 psychiatrist, to work in cases where allegations of violations of

3 international humanitarian laws, or war crimes, in the euphemism, are

4 concerned; is that right?

5 A. Yes. I have been a witness here in this Court before.

6 Q. In which case, please, or cases?

7 A. The Tadic case.

8 Q. And were you also a witness -- I'm sorry. Were you brought in at

9 the request of the Prosecution or the Defence in Tadic?

10 A. I cannot remember.

11 Q. Okay. In any other country, have you also had input or directed

12 examinations of individuals accused of, for lack of a better term, war

13 crimes?

14 A. Yes. In Germany, I have been an examiner for another person who

15 has been indicted for war crimes in the former Yugoslavia, and I have been

16 an expert for the German courts in war crimes done by German people during

17 both -- Second World War.

18 Q. And generally when you have -- perhaps your system is more

19 neutral, it doesn't have a particular party requesting, but have you been

20 asked by, for example, the Prosecution, ever to make a psychological or

21 psychiatric evaluation, or is it something that's done through a registry?

22 A. In Germany, it's normally the Court itself that appoints the

23 expert, but this is delegated quite often to the Prosecutor by the Court.

24 So in most cases in Germany, the Prosecutor is really calling in the

25 expert. I've been in -- for Prosecutor according to the American military

1 law in Germany, so I'm familiar with the system.

2 Q. I'd like to ask you a little bit about some of the points which

3 perhaps would help us understand more about Mr. Zigic at the time of the

4 occurrences, of the alleged violations. In discussing with Mr. Zigic, on

5 page 23 of your English interview - I'm sorry, report - there is a

6 reference to his having lost a finger or part of a finger.

7 A. Uh-huh.

8 Q. And the comment was -- I don't know if you recall specifically how

9 it was said, but that he was -- after being shot with a bullet. Are you

10 able to recall exactly how this occurred? I do realise that Mr. Zigic, a

11 little later on in that same paragraph, said, "He wished to make no

12 statement about this period."

13 A. Yes.

14 Q. What was your assessment of that type of injury and its impact on

15 the conversation that you had with him?

16 A. As I recall, he told about this injury and he said that

17 he -- well, at first he went home and had some, well, bandages, took some

18 bandages around it, and later on he was concerned about losing his finger

19 because of his guitar playing and the loss of his ability to appear

20 publicly, or play the guitar and to appear publicly as a musician. And

21 then as far as I know -- as far as I remember, I should say, he talked

22 about, well, some sort of despair and some sort of pain because of that,

23 but also that he wanted to continue in his, well, being part of the

24 military or police sort of things that he was involved in at that time.

25 Q. So the --

1 A. He went back -- as far I remember, he literally probably said, "I

2 went back to the police and wanted to do some job for them."

3 Q. On page 24 of your report, you did make mention and you indicated

4 that he had been told at the police station -- although the date says 31

5 May, it says, "He was told that he should register sick because he was of

6 no use for military deployment. However, he did not wish to return home

7 and he was sent to Keraterm as a guard."

8 A. Yes.

9 Q. Was this the type of service that he wished to continue?

10 A. Well, it was not that he said this was a type of service. He

11 wanted to be -- not to be home and be on sick leave, but he wanted to

12 continue with his comrades. That's more the impression I had. And so he

13 was sent to Keraterm because he was of no other use for them.

14 Q. Did he suggest to you that the injury would not prohibit him from

15 returning to the police duty?

16 A. He did not want to. I don't know whether they would prohibit

17 him. He did not want to. That's what ...

18 Q. On the issue of alcohol consumption, on page 27 of your report,

19 you made a note that he remained in the army until March 1993, when he

20 started having psychological problems. Again, this is part of the

21 narrative, as I understand it, Doctor. This is Zigic talking to you.

22 A. Yes.

23 Q. And he suffered from disturbed sleep, sweating and nightmares.

24 A. Uh-huh.

25 Q. He drank a great deal and, on the advice of a doctor friend, was

1 transferred to the military hospital in Belgrade for psychiatric

2 examination.

3 A. Uh-huh.

4 Q. He received no treatment there but remained there until the start

5 of June.

6 A. Uh-huh.

7 Q. He had three interviews with the doctor --

8 A. Uh-huh.

9 Q. -- but did not stay in a hospital --

10 A. Uh-huh.

11 Q. -- but lived in a hotel.

12 A. Right.

13 Q. Were you able to assess from this interaction, this interchange,

14 whether this would have been the appropriate treatment if indeed there had

15 been a serious concern by the military officials as to some type of

16 impairment for drinking?

17 A. It would not be in Germany, but I do not know the situation at

18 that time in the former Yugoslavia so I -- I'm not familiar. For sure I

19 would say it would not be the case in Germany that can be somebody would

20 be sent home and said, "Well, stay away from wherever they can catch you."

21 That's the meaning he gave across, "Stay away from wherever they can catch

22 you. Go home and be quiet."

23 Q. And that would be medical response to an alcohol problem?

24 A. Right. Well, let me just confirm whether -- because I've -- in my

25 memory, I wrote something different in German, but I -- if it's important

1 because I -- as far as I remember, he did not drink that much during the

2 military service when he was in direct action. That was from December or

3 from October 1992 until the spring of 1993. He did not drink. He told me

4 that he did not drink that much. So when you told me that -- but I have

5 to check and -- if it's important.

6 Q. Well, page 27 is where I have found --

7 A. Well, I have to -- to my German notes because --

8 Q. Would you like a copy of your German report?

9 A. I do have the German report. Yes, it's a correct translation, I'm

10 sorry, because in the paragraph before it, it says, and I -- well, I just

11 took the notes, "He did not drink during combat, during the time in

12 combat." Okay.

13 Q. Thank you, Dr. Nedopil. Just going back to his narrative of his

14 history, alleged history of drinking, on page 31, when -- in our English

15 version --

16 A. Yeah.

17 Q. -- he tells you that he really started drinking in Russia but he

18 does tell you things were not too bad because he didn't drink every day,

19 only at the weekends and basically also never felt really drunk.

20 A. Mm-hm.

21 Q. Then he went on to tell you that truck drivers, which apparently

22 was what he was engaged in, have a reputation for drinking and he drank

23 excessively daily?

24 A. Yes.

25 Q. And having given up the profession, his consumption fell somewhat?

1 A. Mm-hm.

2 Q. Was there anything that suggested to you that it was risen to the

3 occasion, it was more playing a role as opposed to some type of need? I

4 wasn't sure what you meant to say there and I was curious as to whether or

5 not -- when the job calls for a certain persona is adapted, is that what

6 you were suggesting there?

7 A. No. No. It was that he -- he had been drinking and he continued

8 drinking when he came back to Yugoslavia and that he -- because that was

9 okay with the profession he was in. Like, for instance, in Germany we

10 would say the same thing about masons. Masons drink and so I -- yeah.

11 Q. Okay. However, a bit later on, and I'll just jump to some of the

12 conclusions, your own findings as opposed to his rendition of things, you

13 commented that on page 39 in the English, that, "Zigic repeatedly showed

14 that he already knew what the assessors wanted to hear."

15 A. Mm-hm.

16 Q. Were you saying, and this is one of the points I really would like

17 some clarification on, that as opposed to fulfilling what the Court

18 mandated you to do, he was going to give you his version of what he

19 thought you should know for that, or how did you mean that?

20 A. Well, the -- what I meant is that he tried to stay in charge of --

21 in control of whatever happened there. He told the things that he wanted

22 to tell and he refused to answer questions that he didn't want to answer

23 to. And he started and stopped the conversation whenever he felt and not

24 when the examiner felt like it. So that's what I wanted to say. He tried

25 to show -- well, that was my impression, "I'm the boss here in this room

1 and this is my home field and not yours."

2 Q. Just again in the interests of time, I would just make references

3 to points that support what you were just saying and if there's anything

4 you might want to add. On page 40 of your report, you refer to, "The

5 impression emerged that the individual examined at all times wanted to

6 maintain control over the subject of discussion and content of the

7 discussion, and also of the entire situation."

8 A. Yes.

9 Q. "And that was it was important to him that his objectives be

10 served by this assessment."

11 A. Yeah.

12 Q. Did it appear that the objectives for which you had come were not

13 high on his list to be served? What was your take on it?

14 A. Well, he not verbally said, but he gave the impression, "I'm

15 talking to you in order to profit from talking to you and not necessarily

16 to clarify the questions of the Court."

17 Q. Okay. Now, you described it, you characterised it on page 42 as,

18 "Like a politician giving an interview." What was it that prompted you

19 to come up with that?

20 A. Well, this is -- this is -- when politicians give an interview,

21 they look into the camera, they look into the public. They look at things

22 going about, and how to get the attention from people that are surrounding

23 them, and not focussing on questions that are posed to them. And when I

24 sat across from Mr. Zigic, I had the impression that he was talking not to

25 me directly and answering my questions directly, but telling me what his

1 opinions were and looking around to see whether people were going by, like

2 a press conference rather than a medical examination.

3 Q. In your conclusions or in your findings, you also make note on

4 page 53 that alcohol abuse plays a not considerable role. You did not

5 find, however, it says, "The alcohol abuse at that time, according to the

6 representations of the individual examined, did not lead to dependency but

7 only to occasional alcohol excesses."

8 A. Mm-hm.

9 Q. Do you draw a distinction between abusing which suggests, perhaps,

10 a willingness to ingest or take a substance, and excesses which also may

11 suggest a certain voluntary control and dependency?

12 A. Yes, of course.

13 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Stojanovic.

14 MR. STOJANOVIC: [Interpretation] I think, Your Honour, that

15 Ms. Somers did not present the statement properly: "not considerable

16 role," and here it says "not inconsiderable role." So quite the

17 opposite. The report says quite the opposite.

18 On page 53, I think that the speed --

19 JUDGE RODRIGUES: [Interpretation] Okay.

20 MR. STOJANOVIC: [Interpretation] -- makes it difficult for me to

21 find my way, but the report says quite the opposite.

22 MS. SOMERS: I have said not inconsiderable, and I didn't check

23 the transcript to see that it may have reflected the opposite. But I --

24 as it should read, plays a not -- "alcohol abuse plays a not

25 inconsiderable role." I hope that's what I had said the first time. If

1 not, I apologise. That's what I should have read.

2 JUDGE RODRIGUES: [Interpretation] Yes. Please bear in mind the

3 time, Ms. Susan Somers.

4 MS. SOMERS: [Previous translation continues]... thank you.

5 JUDGE RODRIGUES: [Interpretation] Very well.

6 MS. SOMERS:

7 Q. Sorry, Dr. Nedopil. Did you catch my question?

8 A. Okay. The difference between dependency and abuse is, of course,

9 a medical one. "Dependency" means one that, after withdrawal or after

10 stopping drinking, you have the withdrawal syndrome that is a physical

11 syndrome, quite serious physical syndrome that might even lead to death.

12 And "abuse" means that you drink more than is socially acceptable and is

13 harmful for your health and might lead to social consequences if -- well,

14 if done -- so there is a clear-cut difference. But abuse can be chronic

15 or regular abuse, or it can be a one-time intoxication, serious

16 intoxication.

17 Q. On page 55, Doctor, you indicated, "There was no discernible

18 evidence of a dependency disorder. Conditions for diagnosis of dependency

19 are not present."

20 A. Yeah.

21 Q. That would translate into layman's parlance as abuse on whatever

22 intervals or at whatever intervals but not a substance-dependent person

23 with a disorder?

24 A. Right. Right.

25 Q. Doctor, on page 58, you discuss the inability or ability to

1 differentiate from right or wrong or loss of competence to act and then

2 you said that that would be only assumed in the most severe cases. You

3 went on to say that there was no information present in this situation

4 with Zigic which refers to such severe cases of intoxication.

5 A. Right.

6 Q. So would you, based on all the factors that as an expert you had

7 at your disposal, at the time of the occurrence or alleged occurrence of

8 these acts of which he is accused, would you have found him able to

9 discern right from wrong?

10 A. He would be able to, according to what I know about him and

11 according what I know about the situations, I would have no indication

12 that he could not discern right from wrong at that time.

13 Q. And a question that was specifically raised -- it was a point

14 perhaps, and I'm not sure how it was raised, but there is an incident on

15 page 35 in which Zigic himself describes an act that is in the indictment

16 and he talks about extremists, including one particular one, bottom of 34,

17 top of 35, about a very thin man in Keraterm --

18 A. Yeah.

19 Q. -- whom he made to run around with a machine-gun --

20 A. Yeah.

21 Q. -- weighing about 15 kilograms. And he forced him to carry it for

22 about, he says, half an hour. He had also beaten him and -- when the man

23 could no longer walk. My question is: The next paragraph down, when

24 asked about the motivation or the motive for the behaviour, he told you,

25 according to what you wrote, that "the man had been a small-time thief

1 from the town whom he had known and he thought, 'How can this little

2 worthless thief dare to attack us? Where did he get the courage from? He

3 was such a coward.'"

4 What led to this particular discussion, and was there anything

5 more that you can recall, perhaps, that didn't make it into the report or

6 how did you respond to this reaction?

7 A. Well, the -- the -- I do not recall any more than I wrote in my

8 report, but I -- the way I quoted the answer was to show that there was --

9 he had a motive that was, well, psychological understandable or -- not

10 pathological but out of the history of his own history into the history of

11 his situation, understandable. So it might be under the influence of

12 certain stress, a certain special -- well, conflictual [sic] situation,

13 but it was not a situation where psychotic or drunkenness would interfere

14 with the motivational -- psychological motivation. That was the point in

15 quoting his remarks.

16 Q. Dr. Nedopil, on page 57 of your report, the last sentence of the

17 last paragraph summarises various facts, and you said, "All of these

18 factors indicate a well-retained competence for action and a conscious

19 control of the then course of events."

20 A. Mm-hm.

21 Q. You stick by this particular finding?

22 A. Yeah. Yeah. I don't -- I have to read it because it's --

23 Q. It's on page 57 in English. I'm sorry I don't have the German

24 one. I apologise.

25 A. 57?

1 Q. Yes, sir, and I'm looking at the very last paragraph in the very

2 last lines.

3 A. Mm-hm. Okay. Yeah. I would agree with that.

4 MS. SOMERS: Thank you very much, Dr. Nedopil. Thank you for

5 coming.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Susan

7 Somers.

8 Mr. Stojanovic, do you have any additional questions?

9 MR. STOJANOVIC: [Interpretation] Yes, Your Honour, a few

10 questions.

11 Re-examined by Mr. Stojanovic:

12 Q. Professor, while you compiled the report and interviewed

13 Mr. Zigic, did you caution him that you do not have to keep secret what

14 you learn from him?

15 A. Yes, I did.

16 Q. Did he -- when you say that he had a reserved attitude, did he

17 have the feeling that from time to time you seemed to be in the role of

18 prosecutor? Was that why he was reserved towards you from time to time,

19 because he thought you might have taken that position?

20 A. I quoted [sic] him, and I remember also his sentence, "You

21 interrogate me like a prosecutor," and that was contradictory to

22 what -- the way probably Dr. Hoff examined and questioned him. So maybe

23 it was my way of posing the questions. But of course I think it is the

24 right and the position of everybody who is accused to have reservations

25 towards an examiner, that he gives his opinion and the facts on to the

1 Prosecutor and to everyone else in the Court. I'm used to that, in all my

2 examinations.

3 Q. Thank you. Professor, you said something with respect to the

4 injury to Zigic's finger. Can you tell us anything more as to the

5 influence of the pain, the psychological and physical pain on the psyche

6 and behaviour and conduct of Mr. Zigic in the period after his wounding

7 and injury?

8 A. Well, as I answered before to the question of the Prosecutor, I

9 know, and he told me, that there was a major influence because he could

10 not play guitar any more, and that was a substantial drawback. Well, I'm

11 lacking the English word now for that. I mean, it's a major harm that he

12 felt, and future disadvantage, because he relied on his guitar playing as,

13 well, for his self-esteem, for his appeal, sex appeal also, or appeal to

14 women. And so it was a major -- had a major impact on him in a negative

15 way. He must have suffered pain from that, because -- physical pain, and

16 he was not very willing to get the adequate medical treatment. So there

17 has been some -- from that point, there has been some psychological

18 disturbance as a reaction to that injury.

19 Q. Thank you, Professor. You compiled your report sometime in August

20 last year. In the meantime, we have heard numerous witnesses and their

21 testimony. May I ask you a hypothetical question. Could you make a

22 comment? If I say that at least 30 witnesses said in the meantime that

23 Zigic, in the critical period, consumed alcohol in large quantities, so

24 much so that he was not able to recognise people he was looking for, would

25 that be correct?

1 A. Well, I cannot say whether it would be correct, because -- or I

2 missed the question. It is in concordance, what he told me, that he drank

3 a lot during that time, but I could not say whether the witnesses gave

4 correct descriptions of what he was doing at that time. If -- in order to

5 not recognise people, somebody like Mr. Zigic, who is used to alcohol, has

6 to have at least a consumption that would lead to a blood alcohol

7 concentration of about 1.8 to 2.5, in that -- or even higher, but 1.8

8 would be the minimum. But this is a rather abstract figure, and I

9 don't -- I cannot really calculate about alcohol concentration. But to

10 have a blood alcohol concentration of that amount, you have to drink at

11 least three and a half litres of beer within two hours. That's for a

12 Bavarian population.

13 Q. Professor, at one point you said - and let me look it up in

14 English - that there are no disturbances -- that there are no obstacles to

15 the reintegration of Mr. Zigic into society. Could you comment? Is that

16 so?

17 A. Yes. Well, from a medical point of view or psychiatric point of

18 view, Mr. Zigic is not suffering from an illness. Mr. Zigic is not

19 suffering from a disturbance. He has some peculiarities of his

20 personality, but he is competent, he is competent to lead a normal life,

21 so there would be no -- from that point of view, no obstacles against a

22 reintegration.

23 MR. STOJANOVIC: [Interpretation] Professor, I should like to thank

24 you. I have no further questions.

25 JUDGE RODRIGUES: [Interpretation] Thank you very much,

1 Mr. Stojanovic.

2 Judge Fouad Riad, any questions?

3 JUDGE RIAD: [Interpretation] Thank you, Mr. President.

4 Questioned by the Court:

5 JUDGE RIAD: Good afternoon, Professor. I just have one question

6 which your last sentence brings to my mind. You said that Mr. Zigic is

7 not suffering from a disturbance, but he has some peculiarities of his

8 personality. In your profession, your field, what do you call

9 peculiarities?

10 A. Well, I should quote from my report or from my conversation with

11 him. I considered his way of living as a little bit immature: not

12 sticking to a job constantly; not -- well, having, at his age, several

13 women at the same time, and getting divorced and living together again

14 with his wife and then still having other women; living from one day to

15 the next day, which would be -- and he said -- well, if I said, "This is a

16 little bit immature for a person your age," he said, "Well, this is from

17 your Western European point of view, but we Mediterraneans are

18 different." So maybe what I call peculiarities are Mediterranean

19 differences from Western European standards. So that's to show what I

20 mean.

21 There's another peculiarity which I described as this need to stay

22 in control, this need for independence, not being influenced by somebody,

23 which has been demonstrated throughout the examination, and this is

24 another peculiarity which makes finding a job and working together in a

25 closed system, like in a bureaucratic system, quite difficult. So

1 he -- but this does not really hinder a reintegration into the former life

2 that he led before.

3 JUDGE RIAD: So apart from the need to stay in control, the other

4 peculiarities are merely cultural; they're not psychiatric?

5 A. None of these are psychiatric. They are just -- as I wrote in my

6 report, they are -- forensic psychiatrists look at personality traits that

7 might lead to difficulties and might show where, in special circumstances,

8 in conflict situations, problems might arise, and that's what I was

9 doing. It's not a psychiatric, pathological trait, but it's more like a

10 personality trait that in some sort might lead to conflicts in certain

11 special situations.

12 JUDGE RIAD: Thank you very much, Professor.

13 JUDGE RODRIGUES: [Interpretation] Thank you, Judge Fouad Riad.

14 Madam Judge Wald has the floor.

15 JUDGE WALD: Dr. Nedopil, the word "control" has come up in many

16 instances in the dialogue you've had with both counsel and with Judge

17 Riad, and you spoke of Mr. Zigic trying to control the situation of the

18 psychiatric interview. Did you get the sense in your evaluation that he

19 tried to control other people in different environmental contexts; in the

20 work he was doing, in the social context, that he had the same tendency to

21 want to take control of a situation? Again, obviously, not a

22 psychiatric. We all like to control to a degree, but did you get a sense

23 that that was an important facet of his personality?

24 A. I think it was a facet in his personality that he does not want to

25 be controlled really, that others don't take charge of him. And so in

1 situations where he has little opportunity to really escape control, like

2 in a detention unit, he has to demonstrate his independence, and by that

3 he tries to take control, and that's probably the thing; not to be

4 controlled by others is more important than really taking control of

5 others.

6 JUDGE WALD: So the term is sometimes used, and I just bring it up

7 to see if you think it fits here or not: Would you consider him in the

8 category of rebels against authority, or people that, you know, chafed

9 under rules or authority, that sort of thing?

10 A. I do not understand quite correctly the term, so I really -- I

11 mean, if I would say yes or no, I might give a misinterpretation.

12 JUDGE WALD: I was just referring to -- there is, I think, a type

13 of personality that doesn't like people to be imposing rules upon them and

14 occasionally rebels by either not obeying them or leaving the scene or,

15 you know, doing something that says, "I won't accept this authority."

16 A. Okay. Yes. He doesn't want to be -- rules imposed on him.

17 JUDGE WALD: Right. Right. Do you think -- a different facet of

18 control. Did you get the sense that Mr. Zigic was a person who was in

19 control of himself? And I'm not talking about the alcohol business now,

20 but just a person who could control his own emotions or who might, on

21 occasion, under extreme stress, you know, just lose control?

22 A. Well, under normal circumstances, he is a person that can control

23 himself. He's probably not -- but this is speculation more than --

24 JUDGE WALD: I understand.

25 A. -- a fact. In stressful situations, I would not trust him to have

1 control over himself.

2 JUDGE WALD: Okay. And --

3 A. Let me -- just to give an example, I would not go on a sailboat

4 with him.

5 JUDGE WALD: Did you think that Mr. Zigic was an introspective

6 person, in the sense a person who is thinking all the time or examining

7 his own conduct or his own motives, or rather a person who is more

8 intent -- who has an image of himself and is more intent on projecting

9 that image out to the world at large?

10 A. The latter.

11 JUDGE WALD: Okay. And my last question would be -- this is more

12 of a general question than targeted at Mr. Zigic. Your report, as you

13 told us, is based upon some documents, indictment, notes, medical reports,

14 as well as your interviews with Mr. Zigic. How important do you think it

15 is to know actual instances of somebody's conduct? I mean, is it very

16 often that you get one impression from your psychiatric interview and a

17 different one when you are told or given authoritative documentation that

18 a person has done some very strange or violent actions? Or does that

19 seldom -- are you seldom surprised by that kind of inconsistency?

20 A. Well, the inconsistency exists, and you can, as an -- well, as a

21 psychiatrist and with some experience, you can expect for some people to

22 have inconsistencies, and for other people you will find that there are

23 very few inconsistencies. I wouldn't -- Mr. Zigic, I would put him in the

24 middle. I mean, he would say -- and this is one of the cues that you have

25 -- if a person quite often says, "I don't want to talk about this," so

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1 this is a cue that he -- that there might be inconsistencies but they are

2 not really dramatic, because he refuses to talk about the things where he

3 expects himself inconsistencies.

4 JUDGE WALD: And my last question. I said that before, but this

5 is really the last one. In the course of your interviews with him, did

6 you have any occasion to ask him about his conduct in the period when he

7 was a guard in the detention camps?

8 A. Yes, I did. I did ask him questions about his conduct in the

9 detention camp and I asked about his emotions in that camp, and he told

10 me, and it is written in the report, that he was unhappy there

11 because -- not because of what he did or -- because so many people he knew

12 from before who lived there under very poor circumstances and he could not

13 do anything about that, because he knew those people. There was a teacher

14 of him, or professor, he said, that had to be there, and so he was unhappy

15 because he didn't feel -- well, he didn't know what to do with them

16 really.

17 JUDGE WALD: And so you felt that that account was to the best,

18 obviously you have no way of knowing, objective truth of any these things

19 of these things that happened outside of your interviews, but you felt

20 that that explanation seemed integrated into the rest of his --

21 A. Well --

22 JUDGE WALD: -- interview.

23 A. I would say everybody who is in the situation of being examined

24 for a court tries to produce his best side.

25 JUDGE WALD: Sure. Sure.

1 A. So I would say this is one part of his personality at the time.

2 It's not the whole story.

3 JUDGE WALD: Thank you.

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

5 Wald.

6 Professor Nedopil, I have four questions for you. I should like

7 to know the fact that we have -- that there is the Defence -- the fact

8 that your expertise has been requested by us, by the Defence, the

9 Prosecution, or the Tribunal, to what extent can that fact affect or

10 influence your testimony and your assessment? Is it possible for that

11 request to influence your assessment?

12 I'm asking this question because very often the individuals who

13 conduct the examination are concerned, are conscious of that fact and

14 sometimes may feel the need to control themselves in view of that

15 particular aspect. I'm not passing any judgements here. I'm just

16 interested to know what your answer to that question would be.

17 A. I'm coming from a German law system where the expert has to be

18 impartial, like a judge, and he is an advisor only to the judge, really.

19 So this means, in our system, that we are really -- well, we do, but we

20 are not supposed to talk to any party, really, before we give our expert

21 assessment to the court. We do, of course, because we know each other.

22 But this is -- you have to be neutral, objective, and impartial because

23 you are part of the court, really. You are an advisor to the court.

24 Of course you have -- the control, I know what you mean, and you

25 have to control. A forensic psychiatrist has to control for his personal

1 feelings, but personal feelings partly rise from one who is asking you to

2 conduct an examination. This is -- you have, of course he tells you what

3 he wants in a way, subtle way, and you have to control for that.

4 But more you have to control for seeing somebody who you interview

5 for, as I did in this case, 7, sometimes 10, sometimes 20 hours, and you

6 have to control for slipping into a medical, therapeutic role. This is

7 what you have to control for most. And so -- but yes, you have -- you

8 always have to control for your impartiality, right?

9 JUDGE RODRIGUES: [Interpretation] Still, regarding this particular

10 matter, I should like to know whether, from your point of view, it is

11 important for the individual that is being examined to see or rather to

12 have the information about the entity, about the party who has -- that has

13 requested the examination, whether it was the Defence, the Prosecution, or

14 the Tribunal. Is that particular fact important for the examined

15 individual and, if so, to what extent?

16 A. Yes. The individual has to be informed which party gave -- well,

17 asked for the examination and the accused or -- should be able to consult

18 with his attorney to -- with his defence lawyer to -- how he should behave

19 because this is the only one who is -- he can rely on. And in this

20 particular case, Mr. Zigic had the opportunity to talk to his lawyer

21 before we -- or during the time we began the examination, and he was

22 informed that we have been asked by the court themselves to do the

23 examination.

24 JUDGE RODRIGUES: [Interpretation] My second question for you,

25 Professor Nedopil, is the following: Could you tell us something as to

1 the fact of Mr. Zigic is left-handed or right-handed? Do you know

2 anything about that?

3 A. That's a good question, whether I wrote it down or not. I could

4 not remember. I remember that I talked to Dr. Hoff about that but I'm

5 not --

6 JUDGE RODRIGUES: [Interpretation] But in any case, Professor

7 Nedopil, when you discussed the issue with Professor Hoff, why did you

8 talk about that particular issue of him being left-handed or right-handed

9 with Professor Hoff? Why did you bring that up? Why did you discuss

10 that, if you can remember?

11 A. Probably because we both missed to ask the questions. I cannot

12 tell you. Probably we both thought afterwards: Do you know whether he is

13 left or right-handed? And we said, well, we don't know. Probably. I

14 don't find it here. So -- and I couldn't --

15 JUDGE RODRIGUES: [Interpretation] Yes, but I don't think that you

16 mentioned this fact in your report. In any case, you don't know, is that

17 the case, yes?

18 A. Yes.

19 JUDGE RODRIGUES: [Interpretation] My third question, Professor

20 Nedopil: If an individual was, let's say, wont to drink a lot, if he was

21 an alcohol addict, for example, 7 or 8 years ago, is it possible to see

22 the consequences of that today? I'm referring to a clinical or perhaps

23 psychiatrical examination of that individual. Would it be possible to

24 establish the consequences of that alcoholism today?

25 A. It depends, really. If he had a strong organic syndrome, or

1 Korsakoff's disease as a consequence of his alcoholism, that would clearly

2 be seen. But in the vast majority of cases, alcohol toxic -- my -- this

3 is my English, it's not my knowledge of medicine. Well, changes due to

4 alcohol within the body, like polyneuropathy, neuropathy or organic brain

5 syndrome have a remarkable ability to vanish again if people are

6 detoxified, if they stay sober. We had -- well, most people, strong

7 alcoholics are examined by forensic psychiatrists in Germany about half a

8 year after their detainment. And at that time, most of the organic brain

9 syndrome is gone. They are just -- if you examine them right after they

10 come into a clinic and have their -- the detoxification treatment, they

11 have major organic brain syndrome, and that is gone within half a year.

12 So after 8 years, 7, 8 years, you could not -- in most cases you would not

13 be able to tell and there is proof either way, and the same thing is true

14 for peripheral neuropathy, so there is no way to tell really.

15 JUDGE RODRIGUES: [Interpretation] And my last question for you,

16 Professor Nedopil: You have spoken about the results of your assessment

17 of Mr. Zigic and you told us that he would, from time to time, interrupt

18 the interview and that he was saying only what he wanted to say and that

19 he attempted to control the situation, and you have described that as a

20 particular personal trait, character trait.

21 The willingness to control the situation is something that I

22 should like to discuss. Let's take an example of a child who always tries

23 to fill in the space and to have the control of the conversation in order

24 to hide his misconduct before his father or mother. Are you familiar with

25 that type of situation? That is to say, that is, attempts to control the

1 situation, to interrupt the conversation. Does it mean that he had

2 something to hide, something that he didn't want to speak or was he simply

3 trying to give you his own version of the situation? Do you understand my

4 question?

5 A. Yes. I -- well, the thing is that what I would infer from my

6 observations is that he wanted to tell me his version of the facts and he

7 got irritated if -- and posed the question whether -- how did I dare --

8 why did I question him like a prosecutor. So he was irritated when

9 another version or -- his version was questioned or challenged.

10 I did not have the feeling that he was telling his version or

11 trying to control or trying to interfere in order to hide something that

12 was behind that. He was more afraid of me taking control over him. That

13 was my feeling, and that is what I said to a previous question, that it is

14 more the fear of being controlled than really taking control that made him

15 act this way.

16 JUDGE RODRIGUES: [Interpretation] Yes, Thank you. But you also

17 mentioned the fact that Mr. Zigic got angry when you tried to ask

18 questions which were irritating for him. Apparently some of the questions

19 irritated him.

20 Could you tell us, do you have any idea what kind of questions

21 were irritating for him? Were they questions about certain facts of his

22 life, questions about his previous life in general? What type of

23 questions irritated him, if you can tell us, please.

24 A. I confronted him with some -- German translator, please --

25 JUDGE RODRIGUES: [Interpretation] I think that you can freely

1 express yourself. Our interpreters, I'm sure, will be able to help you.

2 A. When I confronted him with contradictory remarks of himself or

3 contradictions between his remarks and knowledge that I had from the

4 indictment or other things. So the confrontation with contradictions was

5 when he got irritated. Not when I asked about special facts.

6 When I asked about special facts that he didn't want to answer, he

7 said, "I don't want to answer." But he didn't get irritated. He was

8 like -- well, this was a very stubborn thing, like a politician, "I don't

9 want to answer." But when I confronted him with contradictory remarks by

10 himself or contradictions between his remarks and the knowledge I had from

11 the files.

12 JUDGE RODRIGUES: [Interpretation] Thank you very much, Professor

13 Nedopil. I don't have any other questions for you. Thank you very much

14 for coming here. I fully understand your position about languages and the

15 linguistical problem because I, myself, find -- I am in a similar

16 situation as you are, but I have to compliment on the way you have

17 expressed yourself. We fully understood your testimony, and thank you

18 once again for coming here. We know that it was very difficult for you

19 because of your schedule, but thank you very much and we wish you a

20 pleasant journey back home.

21 THE WITNESS: Thank you very much, and I tell you that it was an

22 honour to be called as an expert by this Court. Thank you.

23 [The witness withdrew]

24 JUDGE RODRIGUES: [Interpretation] I think that we have finished

25 for the day. It seems that Madam Somers wishes to take the floor and,

1 yes, Mr. Stojanovic. Let Mr. Stojanovic first because I think this is the

2 Defence case.

3 I know that we have to obey the rules, "Ladies first," however, a

4 different rule applies to the present situation, so let us hear

5 Mr. Stojanovic.

6 MR. STOJANOVIC: [Interpretation] I will be very brief, Your

7 Honour. We have already tendered this document into evidence. It should

8 perhaps only be marked for identification and appropriate ruling should be

9 made so that we know how we stand. Thank you.

10 JUDGE RODRIGUES: [Interpretation] Yes. Ms. Somers, you can also

11 tell us at the same time if you have any objections to this document being

12 tendered into evidence, and if you have any other remarks to make, we will

13 be pleased to hear you.

14 MS. SOMERS: Thank you very much, Your Honour. The Prosecution

15 has no objection to the document going in as evidence. And the second

16 point, I'm not sure whether it's a subject of private or open session. I

17 wanted to ask if the Chamber could assist us in getting clarification on a

18 comment made by Mr. Jovan Simic this morning about a matter that arose

19 that he learned of in Keraterm.

20 We're just not clear what it is, because the implication was there

21 was an obligation, perhaps on our side, and I wondered if we could get

22 some clarification. If it were appropriate in public session, fine. If

23 not, if we could go into private.

24 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Ms. Somers.

25 Let us proceed in order. I see that Mr. Simic is on his feet. I

1 will give you the floor, Mr. Simic, but first of all, let us see what the

2 document -- whether the number -- what number will be given to this

3 document.

4 THE REGISTRAR: D31/4.

5 JUDGE RODRIGUES: [Interpretation] The document is therefore

6 admitted into evidence under number D31/4.

7 There is something we need to discuss now in response to what

8 Ms. Somers has just said. I don't know whether we should go into private

9 session for that, but before we do that, I wish to bring up something

10 during the public session. As you know, we envisaged two weeks for the

11 rejoinder. But in view of the rebuttal of the Prosecutor, if the

12 rejoinder is designed only to address the issues that were brought up

13 during the rebuttal of the Prosecutor, I think that we will not need two

14 weeks for the purposes of the rejoinder, on the Defence, of course.

15 However, I think, in view of that, we should try and organise our

16 work, because there remain a number of other issues that need to be

17 resolved. So I should like to hear you, from the Defence, what your

18 position is about what I have just proposed. I have to tell you - and I'm

19 speaking now on my own behalf. I don't know what my colleagues

20 think - but I thought that we would not need more than two days for the

21 rejoinder of the Defence. I do not wish to influence your situation in

22 any way. I'm just asking the question because I would like to know how

23 much time we will need. If you need three days, please let us know. I

24 should like to hear your review.

25 Mr. Simic, what is your position?

1 MR. K. SIMIC: [Interpretation] Your Honours, you have initiated a

2 very important discussion indeed, in view of the fact that we are here at

3 the moment and that within seven days a number of technical and other

4 matters need to be resolved. So I think that the rejoinder should be

5 scheduled for the following week, that is, for the beginning of that week,

6 which would give us 14 days to prepare the rejoinder. The Defence of the

7 accused Kvocka intends to call witnesses for the purposes of the

8 rejoinder, because a witness was relevant today. And I would like to

9 address the issue of the possibility of the accused being recalled during

10 the rejoinder, in view of great differences in testimonies, because at the

11 time of the examination of the accused, it was of no importance to us. We

12 had a number of facts which were addressed by the accused, and he spent

13 three days testifying, but he did not address every single issue that has

14 been recently brought up. I should like to call three or four witnesses.

15 Of course, that number will depend upon the cross-examination which is to

16 take place tomorrow; however, I don't think that we should need more than

17 one day or perhaps a day and a half for our rejoinder.

18 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.

19 Mr. Nikolic, I don't think you wish to call evidence in

20 rejoinder.

21 MR. NIKOLIC: [Interpretation] Thank you, Your Honours. You're

22 quite right. This Defence team will not call any evidence in rejoinder,

23 as there was no rebuttal in respect of our client either.

24 JUDGE RODRIGUES: [Interpretation] Thank you very much.

25 Mr. Jovanovic.

1 MR. JOVANOVIC: [Interpretation] Your Honour, since no witnesses

2 were called during the rebuttal to challenge the testimony of the accused

3 Radic and the testimony of Defence witnesses, this Defence team does not

4 have witnesses for the rejoinder. We do not intend to call any such

5 evidence.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much.

7 Mr. Stojanovic.

8 MR. STOJANOVIC: [Interpretation] Your Honours, the way we

9 interpret the Rules is that the right to rejoinder follows from the right

10 to rebuttal. I don't think that that right of ours needs to be

11 exercised. That possibility so far exists only theoretically speaking.

12 It is our assumption that we would not have to call evidence in rejoinder.

13 JUDGE RODRIGUES: [Interpretation] Thank you very much.

14 Mr. Jovan Simic.

15 MR. J. SIMIC: [Interpretation] Your Honours, this Defence team

16 intends to call witnesses in rejoinder, just that at this moment we are

17 unable to say how many witnesses we intend to call and how much time we

18 will need to examine them, since we haven't heard of the witnesses that

19 have been called in rebuttal so far. So we really do not know what the

20 position is at the moment. We have very little information, and I should

21 like to beg Your Honours for understanding. We will express our position

22 as the rebuttal progresses or maybe at the end of the rebuttal case.

23 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan

24 Simic.

25 Ms. Somers, as regards the issue of rejoinder, do you have any

1 comments to make? I know that it concerns the Defence, in principle, but

2 you're also a party here, so I should like to hear you as well.

3 MS. SOMERS: Thank you. I would like, respectfully, to request an

4 opportunity, on a deferred basis, to interpose any objections or not when

5 I have seen, perhaps laid out in a similar format to the way the

6 Prosecution did, exactly what is proposed by each rejoinder witness. At

7 this point, I'm not clear what Mr. Kvocka could say that was not afforded

8 an opportunity to be said on redirect when these points were raised, and

9 in fact it may be an inappropriate time for him to do this. But again,

10 without a summary of that sort, or without -- if there exists statements

11 or some type of summary that the Defence has been good enough to provide

12 us with in the past, I cannot comment. It just would have to depend on

13 what the number is and what the -- you know, the nature of the -- if it

14 truly is rejoinder or not. If it is an attempt to retry the whole

15 case ...

16 JUDGE RODRIGUES: [Interpretation] The Chamber will be very strict

17 in this sense: The rejoinder follows from the rebuttal, and that's it.

18 So once again, our position will be very strict. I do understand the

19 position of the Defence and Mr. Krstan Simic and Mr. Jovan Simic. The

20 rebuttal of the Prosecutor hasn't finished yet, so they're not really in a

21 position to state what their intentions are. It is only at the end of

22 this stage of the proceedings that they will able to express themselves.

23 However, the parties, and including the Defence, know very well that the

24 Chamber announced a long time ago that it would be very strict when it

25 comes to the rebuttal and the rejoinder, and as I said today, we will

1 apply the same strict interpretation of the Rules to the rejoinder case as

2 well.

3 So we will wait. But be that as it may, I think that we have

4 heard -- that I have at least two things on my mind at the time. It is

5 possible to envisage that we will not need more than three days for the

6 rejoinder, I think. And also there is preference which has been expressed

7 by the Defence. Instead of having the week of 11th of June, they would

8 prefer to have the week of the 18th of June for the rejoinder. So that

9 seems to be clear for the time being. On the basis of that -- I will

10 discuss the issue, of course, with my colleagues, and we will see how

11 things unfold this week, and I think that at some point in time we will be

12 able to tell you what week will be dedicated for the rejoinder case. But

13 in any case, we won't need two weeks for the rejoinder. So we will have

14 to find a way to organise our work in view of that. When I say "our

15 work," it basically concerns everyone. I don't think that we can move

16 beyond that today. The Chamber will notify you of its decision before we

17 finish the rebuttal of the Prosecutor.

18 So I think that we will wind up for the day.

19 Ms. Somers, is there anything else you wish to add?

20 MS. SOMERS: Yes, Your Honour. The issue of Mr. Jovan Simic's

21 announcement today about the Keraterm matter.

22 JUDGE RODRIGUES: [Interpretation] Oh, yes.

23 MS. SOMERS: [Previous translation continues] ... private.

24 JUDGE RODRIGUES: [Interpretation] Yes. Let us move into private

25 session, please.

1 [Private session]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [Open session]

11 JUDGE RODRIGUES: [Interpretation] Mr. Simic, Jovan Simic.

12 MR. J. SIMIC: [Interpretation] Your Honours, last week I perhaps

13 was not clear enough, and you didn't understand me correctly. It was my

14 oral motion for a portion of the Keraterm transcript, the pages of which I

15 will indicate later on, to be disclosed and presented to this Trial

16 Chamber and the Defence teams. The matter is as follows: During the past

17 week, during the examination of a Prosecution witness, Senad Kenjar, it

18 appears that the witness had given a statement for the first time before

19 he came to the Tribunal to testify. He did so --

20 MS. SOMERS: Excuse me, Your Honour.

21 MR. J. SIMIC: [Interpretation] He was encouraged to do so by his

22 uncle, Hase Icic.

23 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Somers.

24 MS. SOMERS: [Previous translation continues] ... this was

25 testimony that was given in private or public session, and in an abundance

1 of caution, I would ask that this Chamber hold the deliberations in

2 private. If it were public, I don't know that we would have to make any

3 special request for a transcript. Therefore, I am not clear about which

4 witness we are talking, ultimately, from this Chamber, and I think there's

5 too much risk. I see very little risk in going into private.

6 MR. J. SIMIC: [Interpretation] May I respond to this, Your Honour,

7 please?

8 JUDGE RODRIGUES: [Interpretation] Let me first ask you a question,

9 Mr. Simic. The testimony you have described, was it a public testimony?

10 Was it given in private session or in a closed session? Do you know

11 that?

12 MR. J. SIMIC: [Interpretation] Your Honours, it was given in

13 public session, the portion I'm referring to, and it was only after that

14 that the session was closed, that is, made private. To be more precise,

15 I'm referring to the Keraterm case, page 3586. From line 9, the witness

16 is examined in public, up until line 17. After that, the session was

17 private, and it was open for public only at page 3602. I don't know what

18 happened during that period of time. I don't know what was said in

19 evidence. However, the portion I was referring to was given in public

20 session, and I don't see any reason why we should now be in private

21 session. I think that it is a fact that needs to be publicly expressed.

22 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Somers. If that was

23 indeed the case, if we are indeed talking about a public testimony, I

24 don't see any problem.

25 MS. SOMERS: Your Honour, if it is public and if it reflects on a

1 witness who is not protected for us, then certainly not, but it was

2 unclear to us.

3 JUDGE RODRIGUES: [Interpretation] Mr. Simic, please continue. But

4 tell us first: When you are talking about Keraterm, you're actually

5 referring to the Sikirica case; am I right?

6 MR. J. SIMIC: [Interpretation] Yes, you're correct, Your Honour.

7 I apologise. Sikirica, Dosen, and Kolundzija.

8 In the testimony of the Prosecution witness, he said that he was

9 prompted by his uncle, Hase Icic, who was a witness here and who testified

10 here, and that he went, seven or eight years later, and gave a statement

11 to the OTP in order to obtain a visa. What I assume, but what I don't

12 know for sure, is the way in which he received, obtained, a visa, because

13 from the transcript we can see how he got a visa, what the Prosecution

14 ascertained, and how the request was made for him to be granted a visa. I

15 don't know that, actually, because that was in private session. But the

16 question did come up, that is to say, the question of how witnesses are

17 brought here, come here.

18 It is our information that the Prosecution provided an information

19 to the Trial Chamber in the Sikirica case saying how they determined the

20 category of witnesses, what groups they put them in, what groups these

21 people and status have in the country of their residence [as

22 interpreted]. And we ask ourselves: Is that perhaps the rea and

23 reason - and let me bring our own case up - why we get witnesses coming

24 forward about whom we have heard nothing and about details we have heard

25 nothing.

1 So I apologise for going back to the ruling on rebuttal. We

2 respect that and will abide by it. But now we have two witnesses turning

3 up, and we prepared ourselves for 45 days, and we find ourselves in a

4 situation where we have witnesses who have never given a statement, eight

5 years later or nine years later, after they had been in the Detention

6 Centre, and that we find ourselves in this position. That is to say, I

7 don't know what is happening. I just don't know what is happening, and

8 I'm trying to get at the truth. I'm trying to see what the conditions are

9 under which witnesses are brought to the Tribunal. We must leave no

10 shadow of doubt. That is to say, we must see that people really come here

11 because they want to and not because their residence in a country is

12 conditioned by it, or whether their visa there, residence visa there, is

13 conditioned by it. But if that is true, then we see witnesses coming

14 forward, but we're not aware of all the facts. So the Defence - and I

15 have to say this on behalf of our client and ourselves - this is prejudice

16 against us by bringing in witnesses for whom we are not ready. We shall

17 conduct the examination tomorrow, but it won't be the same thing as if we

18 had had advance notice and were fully appraised of the facts.

19 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

20 MS. SOMERS: I confess, Your Honour, I had a little difficulty

21 understanding what appeared to me to be a fairly emotional outburst, and I

22 think, if I understood it correctly, then I would actually ask the Chamber

23 to strike it as rather scandalous accusations that are, frankly,

24 outrageous. I think these questions, if they are questions that Mr. Simic

25 as Defence counsel wishes to put to a witness, can be put to a witness.

1 But the insinuations, or perhaps the overt suggestions, are, I believe,

2 not appropriate to be in front of a Chamber, and I see them as being

3 something that, if he has a question, then perhaps he should raise it in

4 the appropriate manner. But this was certainly, I would say, a very

5 unthought-through allegation to make. Thank you, Your Honour. And if

6 need be, if we need to prepare some type of response in the appropriate

7 form -- but I frankly don't know where he's coming from. Thank you.

8 JUDGE RODRIGUES: [Interpretation] Do you wish to respond,

9 Mr. Jovan Simic?

10 MR. J. SIMIC: [Interpretation] Your Honour, I apologise if

11 somebody misunderstood me that I was accusing. No, I -- all I wanted to

12 know was to learn how witnesses come forward. What is the process? I

13 know that there is an investigation and interest shown of this kind in the

14 Sikirica case. Now, I would like to know how things stand.

15 I would like to know the truth how things come about. I don't

16 claim they come about in that way, but I'd like to take a look at the

17 transcript to see whether somebody has come here in order to obtain a

18 residence visa. I don't claim that it is true or not true. I do this in

19 good faith.

20 If I have misunderstood, then let that be the case, but I would

21 like to have information on the subject. Thank you.

22 [Trial Chamber confers]

23 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Jovan Simic. You have

24 asked us a difficult question, a question which is difficult for the

25 Chamber as well. As you know, the Chamber does not control the work of

1 the parties. The Chamber coordinates and directs and steers, guides the

2 work, but we're not in the system, that you are well aware of and I,

3 myself.

4 The system we have here is that for some witnesses that are to be

5 presented here, there is the party who presents the witness, who examines

6 him, and the cross-examination. The subject of the cross-examination is

7 always the subject of the deposition and the credibility of the witness.

8 So if there's a problem that raises your doubts, you will have to

9 investigate it and do research into it and ask the questions of the

10 witness.

11 It is not up to the Chamber to answer the questions. You are

12 asking us a complicated question. It is up to the parties themselves to

13 bring everything into the courtroom, to ask witnesses questions that can

14 bring into play or test the credibility of the witness. If you have a

15 doubt, a suspicion, you can investigate it and then ask your questions and

16 say, "Why have you come to testify? Did the Prosecutor, did anybody else

17 induce you," and so on.

18 Because the same question can be raised by the Prosecution.

19 Perhaps the Prosecution can ask many questions with respect to the Defence

20 witnesses and their presence here in the courtroom. So it's not a

21 question of bringing into question the honesty of somebody personally.

22 This is always a question that has to be looked at, and I always like to

23 find something positive and I'm doing so in this case as well.

24 The parties always have the right to put questions concerning the

25 credibility of the witness, to test the credibility of the witness and, as

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1 you know, we are always in search of the truth that you, yourself, brought

2 up. We are in the quest of truth, and that is why the Trial Chamber can

3 always call its own witnesses because, for parties in the system, there

4 could be some witnesses which were not conducive to their cause. So that

5 is the equality of arms, the intellectual balance that we tend to strike.

6 And it is the parties themselves that have their place and role in this.

7 The Chamber conducts, observes, make judgements, and itself has the power

8 to call witnesses.

9 So the truth that you mentioned, the real truth, that is a happy

10 term, "the real truth," the right and proper truth, must always emerge

11 from a respect of the rules. And now whether the rules are good or not,

12 that is another matter altogether, but I feel in this case, the Chamber

13 cannot, to my mind, do anything else but receive the witnesses, give you

14 the opportunity to test the credibility of those witnesses.

15 So there you have the answer. We cannot do anything else but

16 that, Mr. Simic.

17 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.

18 JUDGE RODRIGUES: [Interpretation] Okay. We resume tomorrow

19 morning at 9.20 and adjourn until that time.

20 --- Whereupon the hearing adjourned at 3.10 p.m.,

21 to be reconvened on Tuesday the 29th day of May, 2001,

22 at 9.20 a.m.

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