Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3168

1 Monday, 2 June 1997

2 IT-96-21-T







9 Ex parte hearing, pages 3168 to 3188 in closed session

















Page 3189

1 Monday, 2nd June 1997

2 (11.45 am)

3 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.

4 Can we have the appearances now?

5 MR. OSTBERG: Good morning, your Honours. I am Eric

6 Ostberg. I appear today with Mr. Giuliano Turone, Ms.

7 Teresa McHenry, Mr. Stephen Waespi and our case manager,

8 Elles van Dusschoten.

9 JUDGE KARIBI WHYTE: Can we have the appearances for the

10 defence, please?

11 MS. RESIDOVIC (in interpretation): Good morning, your

12 Honours. I am Edina Residovic, defence counsel for

13 Mr. Zejnil Delalic, together with Mr. Eugene O'Sullivan,

14 Professor of Criminal Law from Canada.

15 MR. OLUJIC: Good morning, your Honours. My name is Zeljko

16 Olujic. I am defence counsel for Mr. Zdravko Mucic.

17 With me in the courtroom is Mr. Michael Greaves, attorney

18 from the United Kingdom and Northern Ireland.

19 MR. MORAN: Good morning, your Honour. I am Tom Moran and

20 I represent Hazim Delic in this case. As the Trial

21 Chamber knows, the lead counsel, Mr. Karabdic, is out of

22 town on business. I believe he will be back in the

23 morning.

24 JUDGE KARIBI WHYTE: Thank you very much.

25 MR. ACKERMAN: Good morning, your Honours. I am John

Page 3190

1 Ackerman, appearing on behalf of Mr. Esad Landzo. Ms.

2 McMurrey remains in the United States on business.

3 I believe she will be back in front of the Tribunal on

4 Wednesday, June 4th. Thank you.

5 JUDGE KARIBI WHYTE: Mr. Ostberg, where are we now?

6 Mr. OSTBERG: We are going to call our next witness, which

7 is to be Mr. Regis Abribat.

8 MR. GREAVES: Before that happens, I have an application.

9 JUDGE KARIBI WHYTE: Let us hear it.

10 MR. GREAVES: Your Honours will recall on Friday of last

11 week your Honours kindly heard a motion concerning the

12 failure of the prosecution to supply information to the

13 defence and your Honours indicated that you would go

14 away and give consideration to the motion as it had been

15 argued before you on Friday of last week. At

16 6.00 o'clock on Friday of last week a document was

17 served on all of the defendants which was fifteen pages

18 of text, plus a number of annexes, which in our

19 submission amply demonstrates the need for the kind of

20 procedure that was placed before you as being

21 appropriate.

22 Can I tell you what the document is? It is a

23 document called "Prosecution's Response to the Mucic's

24 Defence Motion to Exclude Evidence". It is a curious

25 document. It is undated. It, however, refers to

Page 3191

1 Mr. Branislav Tapuskovic and Mr. Mustafa Brackovic as

2 being counsel for the accused. Your Honour will recall

3 those learned gentlemen ceased to be counsel a fortnight

4 ago, and our documents have been filed in respect of new

5 counsel who have been instructed in the case of Mr. Mucic

6 and Mr. Landzo. It rather suggests that that document

7 has been in preparation for some considerable period of

8 time. It is a document which starts off in this way

9 "Statement of Facts" and it is signed by various

10 members of the Prosecution. It reads like a witness

11 statement. In it is many pages of assertions of fact

12 which are made in the guise of a motion. That, of

13 course, is quite improper for counsel to do. Counsel

14 do not give evidence in this case. What it reveals,

15 and I do not know if your Honours have even seen this

16 document, bearing in mind it was only served on us at

17 6 o'clock on Friday of last week, and bearing in mind

18 the Prosecution are just about to call the witness to

19 whom all this relates, I am quite astonished if your

20 Honours have not seen this document, because how your

21 Honours can listen to this witness and determine the

22 matters which are the subject to this motion without

23 seeing the Prosecution's response to it is beyond me,

24 but it contains a wide number of items of purported

25 evidence which suggest to even the most casual of

Page 3192

1 readers that the Prosecution have not complied with

2 their duty of disclosure in this case under Rule 66.

3 If your Honours have not seen it, I would

4 respectfully submit that your Honours ought to see it

5 before going any further. If you do not, you cannot

6 determine this issue properly. I would respectfully

7 invite your Honours to have a copy of it to read it and

8 to enable us to discuss it properly. I see from your

9 learned clerk's nodding of his head or rather shaking of

10 his head that I do not think even he has seen it. As

11 I suspect, it is milling around somewhere in the system

12 waiting for your Honours to read it at some future date,

13 when the matters we are about to discuss this morning

14 are long forgotten. I think my learned friend

15 Mr. O'Sullivan has something to add as well about this.

16 MR. OLUJIC: Your Honours, with respect to what has been

17 stated by my learned co-counsel, Michael Greaves, of

18 course this motion that was submitted to us at the end

19 of working hours on 30th May at 6.00 pm and it was

20 written obviously at least 20 days before then. Though

21 it was handed to us just before the weekend, I would

22 like to respond to this motion immediately, which is

23 legally unfounded and which speaks for the thesis that

24 we presented during the closed part of our meeting this

25 morning.

Page 3193

1 So if I may be allowed, I should like to refer to

2 all the allegations that we consider to be necessary

3 with respect to this motion which we received on 30th

4 May. Am I allowed to proceed?

5 JUDGE KARIBI WHYTE: It appears you are reacting to the

6 response itself? Is that so, in which case you cannot

7 complain about impropriety. Are you reacting to the

8 response itself and dealing with it as it is without

9 having any objections to it?

10 MR. OLUJIC: Your Honours, we do have objections regarding

11 the procedure. We appeal that such situations do not

12 happen again, that is that we do not receive documents

13 at the last minute, but since I have received this

14 response, I consider it necessary to respond to it,

15 because it is not ground in fact or in law.

16 JUDGE KARIBI WHYTE: Let us hear you.

17 MR. OLUJIC: Thank you, your Honours. First of all, on

18 page 2 of this response the Prosecution in the document

19 of 30th May does not say in which language the policeman

20 told the suspect why he was being arrested. This is

21 legally very important, because it is of decisive

22 importance how he understood that statement. If he was

23 told, for example, that he had beaten, raped or killed,

24 then clearly Mr. Zdravko Mucic considered himself to be

25 completely innocent regarding such charges and so he did

Page 3194

1 not ask for around attorney.

2 Secondly, the daughter, who was an interpreter, is

3 a person of confidence and there is no dispute about

4 that. Nonetheless, your Honours, she is not a

5 qualified person. Can she, does she know how to

6 interpret and who will she be responsible to if she

7 misinterprets, and why was there not an official

8 interpreter present from that moment? On page 3 at the

9 hearing of the 19th March 1996 it is clear that my

10 client spoke without a lawyer. However, Zdravko Mucic

11 did not say that he does not want an attorney but that

12 he does not want any attorney to be informed, which

13 means that he does not have an attorney of his own, but

14 he is not renouncing the right to an attorney.

15 JUDGE KARIBI WHYTE: You appear to be dealing with the

16 merits of the response when I thought you said you are

17 dealing with the objection about the propriety itself.

18 MR. OLUJIC: Your Honours, these are all incorrectness,

19 because the Prosecutor in his file claims that

20 everything was conducted lege arcis, that my client was

21 clearly informed of his rights, and we are trying to

22 explain that that does not correspond to the truth.

23 Therefore, on page 4 what the accused says, that

24 he understood the interpretation of his daughter, does

25 not mean that he understood the arrest warrant.

Page 3195

1 Secondly, why did the Croatian -- why was the Croatian

2 Embassy not informed immediately? It was said that it

3 would be informed the next day when everything was

4 over. Thirdly, Mucic said because he does not consider

5 himself responsible, he will not ask for a lawyer, but

6 he is not waving his right to a lawyer. Fourthly, in

7 his talk with Ms. Claudia Ortna, a distant judge in

8 Vienna, Mucic did expressly require a lawyer.

9 Furthermore, he agrees to talk to representatives of the

10 United Nations, but under supervision.

11 On page 5 of the prosecution response, first it is

12 correct that Mucic did confirm the statements made to

13 the police, but in doing so he also confirmed that he

14 wanted a lawyer, and he told Ms. Ortna. He speaks for

15 a second time and expressly requests a lawyer, that he

16 wants to talk to him as soon as possible.

17 Secondly, Mr. Mucic asked for a half hour break,

18 but that break was not given to him.

19 On page 6 of the prosecution response Abribat

20 states clearly -- this is the proposed Prosecution

21 witness -- that according to the Tribunal's statute and

22 Rules of Procedure he is entitled to an attorney of his

23 choice and if he cannot find one, an attorney will be

24 assigned to him. Then we see the sentence:

25 "Do you agree with the investigation without the

Page 3196

1 presence of an attorney?"

2 It follows logically from this, your Honours --

3 JUDGE KARIBI WHYTE: Excuse me. Can the Registrar find a

4 couch for Mr. Ackerman?

5 MR. ACKERMAN: I apologise, your Honour. I am sorry.


7 MR. OLUJIC: It logically follows from this that Mr. Abribat

8 wrongly informed Zdravko Mucic. He namely told him

9 that if he does not appoint an attorney of his own, then

10 in any event an attorney will be assigned to him.

11 Therefore in any event he would have an attorney. Of

12 course, this is fully in accordance with the law and

13 criminal procedure of the Republic of Croatia.

14 However, Mr. Abribat never told Mr. Mucic that if he

15 waives the attorney, that he would not have the right to

16 an attorney, which is, of course, contrary to the

17 Croatian Rules of Procedure. On the contrary,

18 Mr. Abribat misled him by saying that if he did not

19 select an attorney of his own choice, an attorney would

20 be assigned to him.

21 Secondly, at the interview on March 20th, 1996 at

22 9.30 am the same was repeated as before. There is

23 another misconception we would be bold to say. As in

24 the case for the attorney, the interviewer said that

25 Mucic is also entitled to the free services of an

Page 3197

1 interpreter. Mucic says that he does not want an

2 attorney of his own, nor does he want an interpreter.

3 Mucic knows that according to the Croatian law on

4 criminal procedure an attorney has to be present. So

5 what happens? He sees the questioner in the room and he

6 sees somebody else in the room who is also interpreting,

7 but he sees another person, that is Mr. Peter Nicholson,

8 who is responsible for the equipment. We ask: how

9 does Mr. Mucic know which one of those gentlemen present

10 may be his attorney, an attorney assigned to him by the

11 Prosecution, because he never said that he wanted his

12 own interpreter. Yet an interpreter was there.

13 Therefore, if he did not say that he wanted his own

14 attorney, an attorney should be there nevertheless.

15 The presence of an interpreter leads Mucic to believe

16 that his attorney is in the room too. It is Mr. Mucic's

17 right to have the assistance of an attorney of his own

18 choice and legal assistance free of charge.

19 JUDGE KARIBI WHYTE: Mr. Olujic, I do not want to interrupt

20 your presentation but I thought if all you are

21 contesting is that everything here is incorrect, then

22 perhaps there are other ways of doing it. If evidence

23 is being led then you might want to challenge the

24 evidence, because this is not how to oppose what is in

25 this response. This is a response to your own

Page 3198

1 presentation.

2 JUDGE JAN: Apart from that, you are talking about matters

3 which have yet to come out in evidence. The facts

4 stated in the motion are not really evidence. When you

5 cross-examine these persons, bring out all these facts

6 and then we will know what is the value of that

7 statement which Mucic is alleged to have made in

8 Austria. All these things have yet to come on the

9 record. You are talking about matters which are yet to

10 come on the record.

11 MR. OLUJIC: Your Honours, may I say the following? First

12 came the defence motion of 8th May 1997. Then on 30th

13 May 1997 the Prosecutor submits their response, and now

14 I am taking this opportunity to respond to that

15 response.

16 JUDGE JAN: It will be more appropriate when the evidence

17 has been recorded that you raise these objections. You

18 first cross-examine the person who recorded the

19 statement, get all these things on the record first.

20 MR. OLUJIC: Certainly, but we are now in such a legal

21 situation that we have the Prosecution response, which

22 denied all the allegations in our motion to exclude

23 evidence to be submitted before this Trial Chamber, and

24 we are not in a position to be able to respond to that.

25 JUDGE JAN: Wait until the evidence is recorded. You

Page 3199

1 bring out all these facts from the witness who proves

2 the statements. Then you can argue while recording the

3 statement of Mucic all these precautions were not taken,

4 precautions to which you are entitled as a right.

5 JUDGE KARIBI WHYTE: That is the position in which we are

6 at now. They have to lead evidence to support whatever

7 allegations they have made. You are challenging all of

8 them, which you can do when they present the evidence,

9 and at the close of the evidence you still make your

10 submissions to see whether they have substantiated what

11 they have been saying. You do not do it by this

12 rejection because they will lead evidence in support of

13 whatever claims they are making.

14 JUDGE JAN: They are aware of the objections which you have

15 raised and they will have to take care of them. They

16 will have to prove before recording the statement of

17 Mucic all these precautions were taken. You can

18 challenge them. Then at the end we will know whether

19 the statement can be admitted.

20 JUDGE KARIBI WHYTE: At every stage you can object to those

21 things.

22 JUDGE JAN: If motions are stated, why hold a trial at

23 all? Just collect the papers and give a judgment.

24 MR. OLUJIC: Your Honours, I certainly understand this to be

25 your will and desire. It is up to you to decide

Page 3200

1 dominus letus as this Trial Chamber and I appreciate

2 that, but I feel I have been deprived of the possibility

3 of completing my response to the Prosecution response.

4 Thank you.

5 JUDGE KARIBI WHYTE: I think you are still under a

6 misconception of how to go about these things. It is

7 not a whim of the judge to tell you not to waste the

8 time, your own time and that of everybody. It is not a

9 whim. What we are saying is you have joint issues on

10 certain things. The Prosecution has now come to lead

11 evidence to those things to which they make claims.

12 You are entitled to reject them by cross-examination and

13 make them establish those things. It is not by your

14 own submissions alone. So it is not a whim.

15 JUDGE JAN: I do not intend to cut down your argument, but

16 I am just pointing out.

17 MR. OLUJIC: Thank you.

18 MR. O'SULLIVAN: Your Honours, if I may be permitted to say

19 a word about this motion and in particular the response

20 by the Prosecution, it is my submission that it is

21 inappropriate to hear this witness at this time for

22 several reasons. The first one, which was pointed out

23 by my learned friend, Mr. Greaves, is that this fifteen

24 page document was served on us at approximately 6.00 pm

25 last Friday, at the end of the day during which we had

Page 3201

1 motion and argument on the appropriateness and

2 timeliness of being served with documentation in support

3 of direct evidence by the Prosecution. That is the

4 first point. Your Honours may now just have had this

5 document served at you at noon on Monday.

6 The second point is: in reading this response by

7 the Prosecution it becomes clear that this contains many

8 statements of fact, which suggest that the Prosecution

9 has interviewed people and taken statements from people,

10 in particular several of the witnesses who will appear

11 today and tomorrow. We have never on the defence

12 received those statements from the Prosecutor, which the

13 rules require, which the order requires. That is the

14 second reason why we should not be hearing those

15 witnesses at this time until we get those statements

16 from Prosecutor, because they are necessary to prepare

17 our cross-examination. We have been through this with

18 you before. In hearing a witness it is appropriate to

19 know what this witness' previous out of court statement

20 would be to compare it with what he or she may say on

21 direct. To be precluded of that ability is not only in

22 violation of the rules and orders of this court; it is

23 also prejudicial to preparing a proper defence and

24 cross-examination.

25 The final point, and I will end here, is that in

Page 3202

1 reading this document it becomes apparent that there may

2 be a need for the defence of Mr. Delalic, in fact, to

3 seek to contact and interview people from Vienna,

4 because there is more than passing interest in our

5 client's case on the events that occurred in Vienna.

6 Some of these police officers and investigators were

7 present in Vienna and their investigations impact

8 directly on evidence which the Prosecution may attempt

9 to lead against Mr. Delalic.

10 So for all those reasons, your Honours, the

11 untimeliness of the serving of this response, not being

12 given witness statements which appear to exist and the

13 need now that we see the position of the Prosecutor to,

14 in fact, contact people who will be coming -- even to

15 have witnesses appear in rebuttal to the Prosecution's

16 attempt to prove the legality of the statements and

17 seizures, it is inappropriate at this time to hear these

18 witnesses. Those are my submissions.

19 JUDGE KARIBI WHYTE: Thank you very much. I follow

20 Mr. Greaves' submission, but when lead counsel gets up

21 you do something else, I suppose one assumes that is the

22 position of the team. Now I agree if there are

23 additional statements which have not been served on

24 counsel and appearing in the response, that might create

25 problems for cross-examination and might require a

Page 3203

1 re-examination of the whole situation, but for the

2 authentication I suppose that is another matter which

3 perhaps could be made by the Prosecution itself. If

4 they really can own up to you that it is their document

5 and that they have produced it, perhaps you might waive

6 any clerical omissions which are made there, but for

7 other matters about statements which are additional to

8 what they have taken before, I think that is fundamental

9 and should be served on you. Can we hear the

10 Prosecution on that?

11 MS. McHENRY: Yes, your Honour. In responding to the

12 various claims made by the defence, I will first note

13 that with respect to some statements made by Mr. Olujic,

14 who referred to the closed hearing this morning, we are

15 obviously unable to respond since we were not present

16 and we had assumed that it had nothing to do with

17 anything to do with the Prosecution case, since we were

18 not present. To the extent that Mr. Olujic says that

19 some of these matters are related to the matters raised

20 this morning, the Prosecution is unable to respond, and

21 so I will not do that.

22 This entire issue I think raises -- as the defence

23 says, this is a perfect example of an issue that -- the

24 Prosecution in all frankness thinks this is a perfect

25 example of how the defence is attempting to make sure

Page 3204

1 that this trial does not focus on important issues or

2 truth seeking or even justice but tries to really just

3 raise issues that are not appropriately raised. In

4 particular, the Prosecution finds it frankly incredible

5 that after the defence of Mr. Mucic was permitted to

6 raise this allegation out of time, and if you will

7 remember the Prosecution objected to the defence raising

8 this issue, because it is something that could have been

9 raised over a year ago and four attorneys ago. The

10 Trial Chamber, because of the very serious nature of the

11 allegation decided at least to let the defence raise

12 this issue even though it was untimely. The

13 Prosecution then started trying to respond, and filed on

14 Friday a response to the defence motion, which responds

15 to certain factual allegations made in the defence

16 motion. So this document was not prepared three weeks

17 in advance. In fact, we did not even know that there

18 would be an issue about this three weeks ago. This

19 document was finished frankly a few minutes before

20 6 o'clock on Friday.

21 Now, we emphasise that if this document had been

22 submitted a week later, this does not mean that these

23 witnesses could have testified. I will also state that

24 it is not the case that we have additional witness

25 statements. This is a matter that was raised several

Page 3205

1 weeks ago, as has been informed to defence counsel. The

2 Prosecution, to be fair and appropriate, and to be able

3 to respond to these allegations which we had never had

4 any hint of, then started a brief investigation which

5 included phone calls of certain people trying to

6 reconstruct what had happened. In an effort again to

7 assist the Chamber and the defence we put down our

8 belief of what the evidence will show, but there are no

9 statements. Had this matter been raised within 60 days

10 it is very possible there could have been statements and

11 this issue could have been handled in a very slow,

12 thorough, methodical way, but because the defence raised

13 this two months into trial, which includes very serious

14 allegations, the Prosecution is responding.

15 Now, many -- and I believe, in fact, the documents

16 -- any documents attached are just correct translations

17 of what the accused had already filed as attachments to

18 its own motions, and so I think this is just an example

19 where the Prosecution tries to do everything it can in

20 good faith to respond in writing and to assist the

21 defence and the Chamber in laying out what it believes

22 the evidence will show, that there are not witness

23 statements and in particular the next witness, both

24 Mr. Abribat and the witness after him, Mr. d'Hooge, will

25 speak to what the circumstances surrounding Mr. Mucic's

Page 3206

1 interview were. We said that weeks ago when the

2 defence first raised this, and we said we wished to have

3 Mr. Abribat speak to those issues. We also in an effort

4 to assist the court have put some issues in there about

5 the Viennese police and, as your Honours know, last week

6 we orally requested leave to call Mr. Gschwendt, an

7 Austrian police officer, to explain that part of it,

8 just to make it crystal clear that everything was done

9 properly here and that the statements are admissible.

10 The fact that we respond to the defence motion does that

11 mean that witnesses cannot be heard.

12 I would suggest that the appropriate procedure is

13 for the witnesses to be heard and if it is at some point

14 later on a case that something unexpected happens that

15 could not have been anticipated, then the witness can be

16 recalled, but the fact that the defence has been allowed

17 to bring this up and the Prosecution wants to call

18 witnesses, I think the Prosecution has acted more than

19 fairly in this case, and to the extent there is any

20 problems or issues they can easily be resolved by

21 having, if necessary, to recall the witnesses. I hope

22 that assists your Honour.

23 JUDGE KARIBI WHYTE: Yes, Mr. Greaves?

24 MR. GREAVES: I note my learned friend refers to the fact

25 they believe this will show that everything was done

Page 3207

1 properly. They assert in their document that this is a

2 statement of the facts. That is an assertion that they

3 are right and we are wrong, and they are giving

4 evidence, signing their names to it. That is not

5 proper. They are asserting matters that are properly

6 matters for witnesses other than themselves to give and

7 secondly matters that are entirely within your Honour's

8 province to decide whether these are facts or not.

9 The second matter is this. They complain they

10 have not had a chance to take statements from anybody.

11 Your Honours will recall when the matter of contempt was

12 raised before this Tribunal, one of the witnesses who

13 was present here in the Hague was one Regis Abribat who

14 had to be sent away again because we could not deal with

15 him. I ask this: why on earth was a statement not

16 taken from him then when an ample opportunity was

17 present to do so? It seems to me that the Prosecution

18 are being somewhat prevaricatory about that. They have

19 had a plain opportunity to take statements from these

20 people in the last three weeks. They have not done

21 so. What is being done here is a gross violation of

22 Rule 66. It is thoroughly unfair, thoroughly unjust

23 and it makes the preparation of the defence of these

24 people absolutely hamstrung at times. For the

25 Prosecution to complain that this is just simply a time

Page 3208

1 wasting tactic is frankly an outrageous suggestion.

2 MR. O'SULLIVAN: Your Honours, the Prosecutor has just said

3 that in regards to Mr. Abribat and Mr. d'Hooge, she knew a

4 long time ago what they would say. I submit the way

5 you would know what a witness is going to say is you

6 have spoken to this witness. Both Mr. Abribat and

7 Mr. d'Hooge were on the March 7th witness list. They were

8 on the revised May 13th witness list and they were

9 scheduled to testify in the middle of May. When the

10 Prosecutor speaks to a witness and signed out what that

11 witness is likely to say on the stand, they have taken a

12 statement. We are entitled to know what that statement

13 says. This is not to waste time. We are talking

14 about fundamental admissibility on the statements and

15 seized objects. This goes to the heart of the evidence

16 in this case, your Honours. .

17 MS. McHENRY: I agree with Mr. Greaves that this is unfair

18 and unjust. I think we disagree who it is unfair and

19 unjust to. The Prosecution would submit it is to the

20 Prosecution. It is certainly the case that the

21 Prosecution does not believe that there is any

22 obligation anywhere that it take a witness statement

23 every time it speaks to a witness. The Prosecution

24 would agree that the defence should be entitled to have

25 some idea of what a witness is going to speak to and, of

Page 3209

1 course, as your Honours know and as can be seen, in most

2 cases we do take statements from witnesses, but in this

3 case it is the case that several weeks ago the

4 Prosecution stated in open court, and there was much

5 discussion with all defence counsel, about the fact that

6 Mr. Abribat and Mr. d'Hooge were going to testify about

7 the introduction of the statements. That is not

8 anything new. That is what they are going to testify

9 to. If there is some huge surprise that could not have

10 been anticipated by the defence, well, then the court

11 always has the option of potentially recalling a

12 witness, but there is absolutely nothing in the rules

13 that requires that the Prosecution take a witness

14 statement from every witness or with respect to every

15 time it speaks to a witness. If defence wish to

16 suggest that the rules be amended to do that, they

17 may. I will also bring up the fact that this issue has

18 already been decided by the court with respect to,

19 I believe, the expert witnesses, and the Prosecution

20 does not have to take a witness statement. The

21 Prosecution should give the defence a fair idea of what

22 a witness is going to speak to, and the Prosecution has

23 done that in this case.

24 MR. ACKERMAN: Your Honours, I think one of the problems is

25 one of definition here this morning. The Prosecution

Page 3210

1 seems to be taking a very, very restricted and narrow

2 view of what is a witness statement. The Prosecution

3 seems to define that as a document in writing signed by

4 the witness. I think that is an extremely narrow

5 definition and a dangerous definition. It would, if

6 that were the proper definition of a witness statement,

7 permit the Prosecutor to avoid this court's orders

8 altogether and never turn over a witness statement to

9 the defence merely by the tactic of interviewing the

10 witness orally, making a Memorandum of that interview

11 and yet never having the witness sign it and therefore

12 being able to say: "It's not a witness statement." I'm

13 convinced that the witnesses that we're talking about

14 here today the Prosecution has talked to at length,

15 probably made memoranda of those conversations or notes

16 of those conversations and when the witness gives

17 factual information to the Prosecutor, my view is that

18 is a statement of the witness that should be turned over

19 to the defence. Otherwise you give the Prosecutor the

20 power to totally flaunt the rules of this court.

21 MR. GREAVES: Can I just refer your Honours to Rule 6,

22 please? The only people who are entitled to propose

23 amendment to the rules are the judges, the Prosecutor or

24 the Registrar, not the defence. That is why we have to

25 ask your Honours to use Rule 89 to stop this thing

Page 3211

1 happening, as it has been happening time and time again

2 throughout this trial. This is just another flagrant

3 and blatant example of what has been going on. There

4 is another argument that Rule 6 and possibly all the

5 rules are ultra vires, because the defence do not have

6 any rights under that Rule, but that is another argument

7 altogether.

8 JUDGE KARIBI WHYTE: I believe the defence feels

9 incapacitated continuing with the hearing because of

10 this lapse. This is the argument. Is that the

11 argument, that you cannot follow the proceedings because

12 you do not have these witnesses' statements in whichever

13 form?

14 MR. GREAVES: In a nutshell.

15 JUDGE KARIBI WHYTE: I think we will get on with the

16 witnesses so that you will be able to cross-examine them

17 as best as you can.

18 MS. McHENRY: Thank you, your Honours. The Prosecution

19 calls Mr. Regis Abribat.

20 (Witness enters court)

21 Mr. Regis Abribat (sworn)

22 Examined by Ms. McHenry

23 MS. McHENRY: Sir, would you please state your full name?

24 A. (In interpretation): My name is Regis Abribat. I am a

25 French citizen. I work for the police as a Division

Page 3212

1 Superintendent.

2 Q. How long have you worked for the French police?

3 A. About 20 years ago I began working for the French

4 police. Basically I was a commissioner in the fight

5 against organised crime and against terrorism.

6 Q. Has there been a time when you worked for the Office of

7 the Prosecutor of the International Tribunal for the

8 former Yugoslavia?

9 A. Yes. Through 1995/1996 I was recruited to the

10 International Criminal Tribunal for the former

11 Yugoslavia. I was responsible for heading an

12 investigative team in the Office of the Prosecutor.

13 Q. As head of the investigative team -- of an investigative

14 team within the Office of the Prosecutor, were you

15 involved in an investigation into crimes alleged to have

16 been committed in the Celebici detention camp?

17 A. Yes, that is correct. I was involved in this

18 investigation. I set it up. I was involved in

19 managing the record, the case file, yes.

20 Q. As part of the investigation and Prosecution were there

21 interviews of any persons accused?

22 A. Yes, there were. These were carried out by

23 representatives of the Office of the Prosecutor. They

24 were questioning of people who were subsequently

25 indicted.

Page 3213

1 Q. Did you participate in any interviews of persons who

2 were subsequently accused by the Tribunal?

3 A. Personally I did, yes. I was present at a hearing, the

4 one of Mr. Mucic.

5 Q. Can you please tell us when Mr. Mucic was interviewed by

6 representatives of the Office of the Prosecutor?

7 A. Mr. Mucic was questioned after he had been arrested. He

8 was arrested in Vienna and we questioned him after that.

9 Q. Do you know when Mr. Mucic was arrested and who arrested

10 him?

11 A. I think that I recall it he must have been arrested on

12 18th March 1996 in Vienna by the Austrian police.

13 MR. GREAVES: Well, your Honour, I object to this

14 evidence. Unless the Prosecution can lay a proper

15 foundation for introducing hearsay evidence under the

16 decision in Tadic, this evidence should not be given.

17 I invite the court to exclude it.

18 JUDGE JAN: I thought you were interested about the date on

19 which he was arrested by the Vienna police.

20 MR. GREAVES: I am very interested but the Prosecution have

21 still got to go through the process of adducing its

22 evidence properly. If it does not do so, it should not

23 be permitted to give that evidence.

24 MS. McHENRY: May I continue, your Honours?

25 JUDGE KARIBI WHYTE: Yes, you may continue.

Page 3214

1 MS. McHENRY: Thank you. Were you present during the

2 arrest of Mr. Mucic?

3 A. I was in Vienna but I wasn't present at the location

4 itself, because we were in the police facilities in

5 Vienna, the Vienna police facilities and we were

6 waiting. I wasn't at the place where he was arrested

7 but I was working on this case very actively.

8 Q. Who else from the Office of the Prosecutor was in Vienna

9 around the time that Mr. Mucic was arrested?

10 A. We asked for permission to be in Austria when Mr. Mucic

11 was arrested. There were four of us representatives of

12 the office of the prosecutors, plus an interpreter.

13 Q. Can you tell us who was present from the Office of the

14 Prosecutor?

15 A. You want the names?

16 Q. Yes, please.

17 A. There was a legal officer, Mr. du Toit. I don't

18 remember what the position of the second person was but

19 I think he was an expert of some sort, Peter

20 Nicholson. There were two investigators. There was

21 an investigator from my group, myself and an

22 interpreter.

23 Q. Okay. What was the name of the other investigator?

24 A. Du Toit, Nicholson, Bart d'Hooge and myself.

25 Q. How did you learn that Mr. Mucic had been arrested on

Page 3215

1 18th March?

2 A. We were in Vienna. We had contacted the authorities in

3 Austria. After that we were sent to a police

4 service. We met the person who was in charge who was

5 the one who were carrying out the investigation and the

6 arrest of Mucic. He gave us details. He said that

7 everything was set up, that they were waiting for the

8 perfect time to do what had to be done. We did not

9 know how long it would take. Therefore they suggested

10 to us that we wait somewhere else if we wanted, go

11 somewhere else in the city, and they would contact us

12 once it was carried out. We had a portable

13 telephone. It was very easy for him to contact us.

14 We went out. I think we must have gone out to have a

15 drink in the meantime.

16 Q. Were you subsequently informed when Mr. Mucic was

17 arrested?

18 A. Yes, we were. As I said, we had a portable

19 telephone. We were informed that Mr. Mucic had been

20 arrested and so we went back to the police station.

21 Q. Okay. On 18th March did you or anyone from the Office

22 of the Prosecutor have any contact with Mr. Mucic?

23 A. On the day that he was arrested? On that day all five

24 of us went back to the police station. We had a

25 discussion with the police officer who was responsible

Page 3216

1 for the operation, and after the discussion I asked him

2 whether I could meet Mr. Mucic to explain to him who we

3 were and what procedure would be -- could be followed

4 should he accept to give testimony -- make a statement

5 rather. Then I asked to see him.

6 Q. What happened, please?

7 A. The Austrian police officer said that that was all

8 right. He said that I could come with him as well as

9 the interpreter, and that he would let us speak with

10 Mr. Mucic. That is what was done. I went with the

11 police officer and the interpreter. He took us to a

12 kind of a cell, like the cells we have in my country,

13 and there I met Mr. Mucic.

14 Q. Can you please tell us what happened when you met

15 Mr. Mucic?

16 A. I introduced myself. I told him who I was.

17 I introduced the interpreter and I told him that we were

18 members of the Office of the Prosecutor of the

19 International Tribunal, that there were specific

20 proceedings that were followed at the International

21 Tribunal, and that we wished to ask him questions and

22 that in order to do so we would have to honour the rules

23 of procedure and evidence. That's what it was.

24 I spoke to him for maybe one minute, maybe two minutes.

25 Q. In what language did you speak -- did you use when

Page 3217

1 speaking to Mr. Mucic?

2 A. To speak with him I spoke in English at the request of

3 the police officer from Austria, because that person did

4 not speak French and he asked me to speak in English,

5 because he understood English. So I spoke English and

6 the interpreter interpreted into Mr. Mucic's native

7 language.

8 Q. Was the Austrian police officer present the whole time

9 that you were with Mr. Mucic?

10 A. Yes. Actually it lasted so little time.

11 Q. Did Mr. Mucic say or indicate anything to you after you

12 explained who you were and that any interview would have

13 to be done according to the rules of the Tribunal?

14 A. There was no real discussion, because I simply came in

15 to see Mr. Mucic and to explain who I was, that is to

16 introduce myself, to explain the rules and I simply

17 wanted to know whether he agreed or not to be

18 questioned. He answered -- he nodded. Actually, which

19 meant "yes" and that's all.

20 Q. On 18th March did you or, to your knowledge, anyone else

21 from the Office of the Prosecutor have any contact with

22 Mr. Mucic other than what you have just described?

23 A. Aside from what I have just told you, no. Nobody, no

24 member of the team had contact with Mr. Mucic.

25 Q. Going to the next day, sir, 19th, can you please tell us

Page 3218

1 what happened on 19th?

2 A. The day after the arrest the entire team, that is the

3 five people, we went to the investigating judge's office

4 in Austria, the person who was in charge of the case.

5 We met him. He explained to us that there would be a

6 discussion with Mr. Mucic in order to tell him that there

7 was extradition proceedings going on and that after

8 that, if possible, we ourselves would proceed to ask the

9 questions that we wanted to speak. We had asked very

10 specifically that we be the ones to carry out the

11 questioning of Mr. Mucic for the Prosecutor.

12 Q. What happened next?

13 A. Together with the judge we went to the facilities that

14 were used as a prison, because, if I remember correctly,

15 it was in the same building where the judge's offices

16 were as well as the facilities use for a prison. We

17 went to that part which was used as a prison. We went

18 into an office. The investigating judge was there, his

19 interpreter, the five members of the team -- their names

20 I have already given you -- from the Office of the

21 Prosecutor. Mr. Mucic was brought in. The

22 investigating judge spoke with Mr. Mucic. He spoke in

23 German. That was interpreted for Mr. Mucic through the

24 judge's interpreter. We said nothing. We did not

25 participate in that discussion. We have simply

Page 3219

1 listened, and I asked our translator to give me a

2 synopsis of what the judge was saying to Mr. Mucic. That

3 is how I was able to understand that the judge was

4 apparently explaining the extradition proceedings, after

5 which, with his authorisation, we could ourselves

6 question him.

7 Q. When you say that the Tribunal interpreter gave you a

8 synopsis, does that mean that she did not translate word

9 for word what was being said by the judge or by

10 Mr. Mucic?

11 A. No, she didn't translate word for word. We weren't --

12 it was not a comfortable situation. There were eight

13 of us in the room. We were in one corner of the

14 office. We didn't want to disturb anybody and we

15 really didn't want to disturb anybody. So she was

16 whispering and telling me what was said.

17 Q. Can I ask you to speak a little slower so the

18 interpreters ...

19 A. Bien sur.

20 Q. Do you remember whether or not there was any discussion

21 of attorneys during the judge's interview with Mr. Mucic?

22 A. If I recall correctly, I followed these things in a

23 really synoptical form, what my interpreter was saying

24 to me. It seemed to me that the Austrian investigating

25 judge must have said to Mr.. Mucic that he was entitled or

Page 3220

1 he should insist on his right to having an attorney

2 during the extradition proceedings.

3 Q. What happened at the end of -- let me go back. Was

4 there any discussion that you are aware of whether or

5 not Mucic wished to or should have an attorney with

6 respect to any interview to be conducted by the Office

7 of the Prosecutor as opposed to the extradition

8 proceedings?

9 A. No, not at all. From what I remember, and I think I do

10 remember things rather well, it was a question of a

11 lawyer but only for the extradition.

12 Q. What happened at the end of the judge's interview with

13 Mr. Mucic?

14 A. It seems to me that the judge must have explained that

15 we would then have a hearing, but that before that took

16 place if Mr. Mucic wanted to rest a bit, wanted a break

17 before we began, I think he must have asked him that

18 question, because Mr. Mucic, in fact, did say that he

19 wanted to have a break before we would begin.

20 Q. What happened next?

21 A. The guards must have asked Mr. Mucic to withdraw. We

22 also left the office. The judge told us that we could

23 not use the office we were in because it had to be used

24 for something else. I do not really remember what it

25 was but it had to be used for something else in any case

Page 3221

1 and that we would have to go into an adjoining room.

2 It was actually adjoining the office. It could be

3 compared to a kind of a place where people speak to

4 prisoners in a prison. It was a narrow room. That's

5 where we went. When I say we, it means the second

6 investigator of the group, Bart d'Hooge, the

7 interpreter, Peter Nicholson, who was responsible for

8 the recording equipment that we had brought with us and

9 myself. So then there were four of us only. The

10 legal expert, Mr. du Toit, was involved doing other

11 things with the Austrian authorities, so he didn't stay

12 with us.

13 We went into that room, as I said, which was right

14 next door. We prepared the recording equipment, that

15 is the tape recorder and the camera. It took us a

16 little bit of time because it was a very small room.

17 We had to find the proper angle where we would be able

18 to take pictures properly. That was not an easy thing

19 to do. Then we waited until Mr. Mucic came back.

20 Q. What happened when Mr. Mucic came?

21 A. When Mr. Mucic arrived he sat down in front of us and

22 then at that point we began to ask the questions.

23 Q. Can you tell us more exactly what exactly -- when

24 Mr. Mucic entered the room, was the recording equipment

25 already going? Can you just explain exactly how that

Page 3222

1 worked, and if any conversation occurred before the

2 recording equipment started, can you please just tell us

3 about that?

4 A. Mr. Mucic arrived. He sat down. I think I said

5 "Hello" to him again. I must have shown him the

6 camera and I said to him: "This is the equipment that

7 we're going to use in order to record this hearing.

8 I'm also going to show you the video recorder", saying:

9 "This is the other piece of equipment we are going to

10 use, and with respect the formulas that I gave to you

11 yesterday". I told him: "We can begin when you

12 want." He must have said: "All right" and then we

13 began.

14 Q. When you said -- what happened then? Was the recording

15 equipment turned on?

16 A. From the point on that he said: "All right", that is

17 from the point that he agreed to our recording what he

18 said, we started the equipment and I again told him what

19 point we were at, who was there. I don't exactly

20 recall all the legal formulas that I had. Do you want

21 me to repeat exactly what they were, these legal

22 formulas, saying what was said at that point, exactly

23 what was said to him?

24 Q. You are asking whether or not -- you have already told

25 us what occurred before the recording started; correct?

Page 3223

1 Was anything else said to Mr. Mucic before the recording

2 started other than what you have just testified to?

3 A. No. Not at all. After that everything that was said

4 was recorded.

5 Q. Okay. On March 19th was there ever a time when you

6 were alone with Mr. Mucic?

7 A. No, absolutely not.

8 Q. Was there ever a time when Mr. d'Hooge or Mr. Nicholson

9 were alone with Mr. Mucic?

10 A. No, not at all.

11 Q. Did you always use an interpreter when talking with

12 Mr. Mucic?

13 A. Yes.

14 Q. Okay. At any time prior to or during the interview did

15 Mr. Mucic ever suggest that he might wish to have an

16 attorney present when he spoke with representatives of

17 the Office of the Prosecutor?

18 A. No. This was a problem which had been clearly brought

19 up. He had answered very clearly and had said that he

20 agreed to cooperate, that he didn't need an attorney at

21 that point.

22 Q. Okay. With the assistance of the Registrar, I would

23 now like to show the witness a transcript of the

24 interview. Maybe while the Registrar is marking those

25 exhibits I will just go on, Mr. Abribat, with a question,

Page 3224

1 which is: when Mr. -- the Office of the Prosecutor,

2 were they in charge of Mr. Mucic; in other words, were

3 you permitted to speak with Mr. Mucic whenever you

4 wanted? Could you just have authority to do that by

5 yourself?

6 A. No, not at all. You know, in this type of proceedings

7 I am familiar with the police, traditional police

8 procedures, but you are in a foreign country to carry

9 out a rogatory commission for an international body, you

10 are at the disposal of the local authorities and you are

11 subject to the local rules. You have absolutely no

12 initiative that you should take. You are simply there

13 to carry out procedural matters but not to take any

14 initiative if you are on your own.

15 Q. Sir, I'm showing you what has been marked for

16 identification purposes as Prosecution exhibit 101.

17 Copies of this have previously been provided to the

18 defence. Three extra copies are provided for the

19 judges. Sir, I ask you to look at that and tell me if

20 you recognise what that is.

21 A. Yes, in principle this is the translation of the

22 questioning of Mr. Mucic. The translation into English

23 of the questioning that I carried out.

24 Q. Just so the record is clear, what language did you use

25 in asking questions?

Page 3225

1 A. When I questioned Mr. Mucic I spoke in French, which was

2 translated into his native language by an interpreter.

3 Q. Thank you. Have you had occasion to review the

4 transcript or the interpretation of the interview of

5 Mr. Mucic at least -- and let me be clear now -- at least

6 with respect to March 19th?

7 A. About two weeks ago I leafed through the English

8 translation of what had been done, yes.

9 Q. With respect to the interview on the 19th, is it a

10 complete and fair transcript of the interview you

11 conducted with Mr. Mucic on the 19th?

12 A. I assume that this reflects everything. I can't tell

13 you this word by word because it's a translation into

14 English and I spoke in French.

15 Q. But without saying whether or not the word to word

16 translation is correct, is it a fair reporting of your

17 interview with Mr. Mucic?

18 A. Yes, absolutely.

19 Q. Does the interview correctly reflect that when the

20 interview started Mr. Mucic was advised of his rights

21 pursuant to the Tribunal's Rules of Procedure and

22 Evidence?

23 A. Could you ask that question again, please?

24 Q. Does the transcript of the interview correctly reflect

25 that at the commencement of the interview you advised

Page 3226

1 Mr. Mucic of his rights under the Tribunal's rules of

2 procedure and evidence?

3 A. Yes, absolutely, of course. I did it several times,

4 because I did it during the interview when I said: "This

5 is the procedure which is in effect of the Tribunal."

6 I told him the rules that were followed, what were his

7 rights. When we began the recording I told him once

8 again what the defence's rights were.

9 Q. Among the rights that you advised Mr. Mucic of, did you

10 advise him that he had the right to an attorney and that

11 if he did not have the possibility of getting one

12 himself, one would be assigned to him?

13 A. Yes, absolutely. I said it twice before we began the

14 questions, so that he might do what's necessary if he

15 wanted him, which would give him some time, because I

16 had seen him on the 18th when I explained that to him as

17 well, and I gave him enough time in order for him to get

18 into contact with counsel. The next day, when I saw

19 him again in order to hear his statement I asked him.

20 I said: "Do you want an attorney? You are entitled to

21 have an attorney." He said that he was prepared to give

22 a statement without an attorney being present.

23 Q. Was Mr. Mucic advised that he had the right to remain

24 silent?

25 A. Yes, absolutely, yes. It was the same thing under the

Page 3227

1 same circumstances. Before the interview I told him

2 that and even before the interview of the 19th, yes.

3 Q. Was Mr. Mucic advised that everything he said would be

4 recorded and could be used in evidence?

5 A. Yes, that as well. Since what he said had to be

6 recorded, he had to agree with that. I asked him

7 whether he agreed to its being recorded. "In that case

8 you know anything you say may be used in evidence." He

9 was informed of that on two separate occasions.

10 Q. Was Mr. Mucic asked whether he was willing to provide an

11 interview without the presence of an attorney?

12 A. Yes, absolutely. I explained how things worked and

13 I asked him: "Do you agree to speak without counsel

14 being present?" He answered: "Yes" and then we began.

15 Q. Did you make any reference to the fact that he had

16 previously spoken, albeit briefly, with Mr. Mucic in the

17 recorded part of the interview?

18 A. Yes, of course. I referred to that, because for me

19 I simply had to refer to the first explanation of his

20 rights. That would seem normal to me for us to speak

21 what had been said. I said. "I have already explained

22 your rights to you. I am going to repeat what I have

23 said and afterwards you will give your answer and say

24 whether or not you agree to speak".

25 Q. Was Mr. Mucic willing to provide an opportunity without

Page 3228

1 the presence of an attorney?

2 A. Yes. He gave a declaration and then he answered our

3 questions in an ordinary way. There were no problems.

4 JUDGE KARIBI WHYTE: I think it is convenient for us to

5 stop for lunch here and come back at 2.30.

6 (1.00 pm)

7 (Luncheon Adjournment)



















Page 3229

1 (2.00 pm)

2 JUDGE KARIBI WHYTE: Have you anything to say, Mr. Greaves?

3 MR. GREAVES: Your Honour, yes. A situation has come to my

4 attention during the course of the luncheon

5 adjournment. There is a person who is a potential

6 witness in this case in relation to this matter who has

7 chosen this morning to come and sit in the public

8 gallery. She must know she is a potential witness,

9 otherwise she would not have bothered to come and sit in

10 the public gallery, she having other duties within this

11 building.

12 JUDGE KARIBI WHYTE: Yes, you can carry on.

13 MR. GREAVES: There are two matters. First of all, she

14 should not be in the public gallery if she is a

15 potential witness as to these matters. The second

16 matter is this: it seems to me that is an indication

17 that she wishes to know what is being said in this court

18 and to hear examination-in-chief and cross-examination

19 and re-examination so that she may prepare herself in

20 the event that she is called as a witness.

21 Your Honour, in my submission the defence of

22 Mr. Mucic now should have the opportunity to take a

23 statement from her. Your Honour knows that there is a

24 particular problem in relation to that. It is a matter

25 that was explained to you today. I renew my

Page 3230

1 application. She is plainly there preparing to give

2 evidence in this case in that eventuality, and only by

3 granting the defence the opportunity to interview her

4 and take a statement from her can this court ensure that

5 she does not so prepare herself that an injustice is

6 going to be done. I would, therefore, renew the

7 application that I made this morning and invite also

8 your Honours to order that she be removed from the

9 public gallery forthwith.

10 JUDGE KARIBI WHYTE: I am not sure your proposition applies

11 to everybody who sits in the gallery is a potential

12 witness. That is not my knowledge and I do not know

13 there is any such proposition that whoever sits in the

14 gallery is a potential witness. Apart from that you

15 have suggested that she should be a witness. I think

16 it is your own arrangement if you want that. The Trial

17 Chamber has ruled in the application you brought. We

18 never indicated that she is a potential witness for

19 you. You may make whatever arrangement you like to get

20 her to be a witness. In that regard perhaps she will

21 come within the parameters of the law prohibiting

22 witnesses to sit in the public gallery, but for now

23 I think I see nothing which disqualifies her.

24 MR. GREAVES: Your Honour, if it was not for the difficulty

25 over the Convention of 1946 I would ask for a subpoena

Page 3231

1 to be issued immediately. I am not allowed to issue a

2 subpoena, because of the United Nations it is claiming

3 immunity in respect of her. If a subpoena was issued

4 against her, she becomes a witness in this case. I am

5 not allowed to issue a subpoena. Therefore, if your

6 Honour is right, it is impossible for her to be removed

7 from the gallery, but if I am permitted to issue that

8 subpoena, and I wish to do so, then she must be removed

9 from the public gallery. That is why your Honour has

10 to rule on the issue of whether or not a subpoena can

11 issue in the light of the Convention of 1946.

12 JUDGE KARIBI WHYTE: Well, as I told you, what you have

13 done was an application. You have made an

14 application. We might have not ruled on that aspect,

15 because we did not consider it for the application you

16 made. If you want compulsorily for anybody who is even

17 unwilling to be a witness to be brought to testify in

18 your favour, I suppose you know how to go about it. Do

19 not bring the Trial Chamber into that.

20 MR. GREAVES: With respect, your Honour, it is for the Trial

21 Chamber to issue subpoenas under Rule 54. I make

22 application.

23 JUDGE KARIBI WHYTE: I do know that. Then that

24 application must state specifically she is your

25 witness. Then we will see to it how that could be done.

Page 3232

1 MR. GREAVES: Then I ask for her to be a defence witness and

2 I ask your Honours to issue a subpoena.

3 JUDGE KARIBI WHYTE: That was not your application this

4 morning.

5 MR. GREAVES: I think your Honours will find that I used the

6 word "subpoena" during the course of the application.

7 JUDGE KARIBI WHYTE: Mainly because you use the word does

8 not mean you really want her as your witness.

9 MR. GREAVES: I am sorry, your Honour.

10 JUDGE KARIBI WHYTE: I explained to you if you really want

11 her as your witness, I will consider that.

12 MR. GREAVES: Well, I have made my application.

13 JUDGE KARIBI WHYTE: Yes, I know you have. Can we carry

14 on with the witness?

15 MR. OSTBERG: Your Honour, as far as the Prosecution is

16 concerned, everybody is speaking in riddles. We have

17 not the faintest idea what this proposition made in open

18 court is all about. The Prosecution is left totally in

19 the dark as to what has gone on in the courtroom in

20 which it is bringing its case, which for me is a very,

21 very unusual situation. I know nothing of this that is

22 right now discussed in this room. The same goes for my

23 learned colleagues at my side. I think we should be

24 invited to take part in the discussions made in the

25 courtroom.

Page 3233

1 JUDGE KARIBI WHYTE: An application ex parte was made. It

2 was not made on notice so it did not concern you.

3 MR. OSTBERG: Thank you.

4 JUDGE KARIBI WHYTE: An application was made suggesting a

5 particular person be summoned as a witness. That was

6 what was said.

7 MR. OSTBERG: That was ruled on by the court.


9 MR. OSTBERG: Thank you very much.

10 JUDGE KARIBI WHYTE: So let us carry on.

11 MS. McHENRY: Your Honours, just while the witness is coming

12 in, I previously spoke with defence counsel about the

13 fact that the defence has suggested that certain

14 corrections should be made to the transcript. A copy

15 of the defence submission was -- is attached to the

16 Prosecution exhibit and the matter has been referred to

17 the interpretation section and if they decide that

18 certain corrections should be made we will, of course,

19 notify defence counsel and your Honours and submit a

20 revised one, but just so you know.

21 MR. GREAVES: Your Honours, I have managed to leave some

22 papers in the defence room. I wonder if you would

23 excuse me a moment or two whilst I just go and fetch

24 them please.

25 JUDGE KARIBI WHYTE: Yes, you can.

Page 3234

1 MR. GREAVES: Thank you very much indeed.

2 (Witness re-enters court)

3 JUDGE KARIBI WHYTE: Remind the witness he is still on his

4 oath.

5 THE REGISTRAR: Mr. Abribat, may I remind you that you are

6 still under oath?

7 A. D'accord.

8 JUDGE KARIBI WHYTE: You can carry on.

9 MS.. McHENRY: Your Honour, do you wish me to carry on or do

10 you wish me to wait until defence counsel returns?

11 JUDGE JAN: Defence counsel is here.

12 MS.. McHENRY: Thank you. Mr. Abribat, you previously

13 testified about what occurred on the 19th with respect

14 to the interview of Mr. Mucic. Was the interview in its

15 entirety concluded on the 19th?

16 A. Well, yes, as far as I was concerned, because I had to

17 come back to the Tribunal on the 20th, on the morning of

18 the 20th, so after the first interview of the 19th I did

19 not see Mr. Mucic after that, but the interview did go on

20 with the investigator from the Tribunal who had been

21 there with me.

22 Q. Okay. Excuse me one minute. Your Honour, that

23 concludes the Prosecution questions for this witness.

24 As your Honours know, we will be calling another witness

25 and after that witness, we will actually seek to

Page 3235

1 introduce the statements into evidence. So we do

2 realise that we have not yet sought to introduce the

3 statements into evidence. Thank you.

4 JUDGE KARIBI WHYTE: Any cross-examinations of this

5 witness?

6 Cross-examination by Mr. Greaves

7 MR. GREAVES: Would your Honour just give me a moment,

8 please? Mr. Abribat, I want to ask you, please, about

9 your first meeting with Mr. Mucic on 18th March. That

10 was with the agreement of the Austrian police officer;

11 is that right?

12 A. Yes, that's right.

13 Q. And who was the Austrian police officer who allowed you

14 to do that? What was his name?

15 A. I'm afraid I couldn't tell you. I don't remember his

16 name at all.

17 Q. Do you remember his rank?

18 A. No, certainly not. It was the one who was in charge of

19 the unit who'd gone ahead with the arrest but he'd not

20 told me what his exact rank was.

21 Q. You can't remember what the officer's name was, although

22 you've told us in evidence this morning that you do

23 remember things rather well, Mr. Abribat, but you can't

24 remember that?

25 A. Yes, that's right. I remember what happened quite

Page 3236

1 well, but I don't remember the names that well and

2 especially in Southern France. When it comes to German

3 names, it's quite different, then that's how it is.

4 Q. I want to ask you what took place during that

5 conversation with Mr. Mucic. Can you help us about

6 this: you took him through the procedure that would be

7 followed; is that right?

8 A. Yes, that's right.

9 Q. What exactly did you say to him about the procedure?

10 A. I must have given him a summary of the various stages

11 that have to be abided by in going through such an

12 interview when somebody is questioned as a suspect.

13 Q. You were talking in English; is that right?

14 A. I spoke English so that the Austrian police officer

15 could understand me, yes.

16 Q. Are you fluent in English, Mr. Abribat?

17 A. I speak well enough English to get by, yes.

18 Q. Well, -- so you're not fluent?

19 A. Well, that all depends what you mean by "fluent."

20 I mean, that's a personal judgment really.

21 Q. In what language were the rules explained to Mr. Mucic

22 then?

23 A. I thought I answered that. I explained the procedure

24 in English so that the Austrian police officer could

25 understand me, but the texts are worded in English and

Page 3237

1 in French.

2 Q. Who carried out the interpretation at that point?

3 A. It was the Tribunal's interpreter who was with me.

4 Q. She was translating your English into Serbo-Croat for

5 him?

6 A. Yes, that's right.

7 Q. Your intention by having this meeting was to explain the

8 rules and also to ask him the question as to whether he

9 wished to be interviewed by you; is that right?

10 A. I wanted to explain the Rules of Procedure that applied

11 in questioning a suspect and then on that basis to know

12 whether he would agree to an interview.

13 Q. You wanted to ask him some questions; isn't that it?

14 A. No, absolutely not. I was clear on this this

15 morning. I simply wanted to explain the rules of

16 procedure with him and I didn't enter into any dialogue

17 with him.

18 Q. You wanted to know if he wanted to have a lawyer

19 present?

20 A. I told him that according to the procedure if he wanted

21 to have a lawyer present, he could have one present at

22 the interview. So if he wanted to have one there he

23 would have to make the necessary arrangements.

24 Q. Did you ask him the question: "Do you want a lawyer?"

25 A. No, I did not put that question to him. I explained

Page 3238

1 the Rules of Procedure of the Tribunal to him and told

2 him the conditions in which and circumstances in which

3 he could have a lawyer.

4 Q. But you wanted to know whether he was going to be

5 interviewed?

6 A. I'm not sure we're on the same wavelength here. I

7 didn't put any questions to him. I explained the rules

8 of procedure that applied to him.

9 Q. Well, just explain what explanation you gave. Explain

10 the rules as you explained them to him so that we may

11 know how you explained them to him?

12 A. I told him simply that as a suspect he had rights, that

13 those rights were the following. There were three

14 categories, that is to say he had a right to counsel, he

15 had a right to an interpreter to speak his language and

16 everything he said could be used as evidence, and that

17 the interview, if he agreed to an interview would be

18 recorded and that the interview could take place in the

19 presence of his lawyer or it could take place without

20 the presence of his lawyer, if he agreed there to.

21 Q. Well, that is Rule 42(A) of the Rules of Procedure and

22 Evidence. Did you explain Rule 42(B) to him,

23 Mr. Abribat?

24 A. Rule 42(B), could you tell me exactly what you are

25 referring to?

Page 3239

1 Q. You mean you do not know what Rule 42(B) is, Mr. Abribat?

2 A. Well, I have to have a look at it to really ...

3 Q. We may be able to let you have a look in a moment, but

4 you were the one who were there in March 1996,

5 purporting to explain all the rules of procedure and

6 evidence to this man, whom you had never met before.

7 Did you not know --

8 JUDGE KARIBI WHYTE: Do you not think if he has explained

9 the rights which the suspect really was entitled to,

10 that would be sufficient whether it is in category A or

11 B or C, if he has explained those rights which the

12 suspect is entitled to?

13 MR. GREAVES: With respect, your Honour, could you please

14 look at Rule 42(B)? That contains additional rights

15 which, in my submission, have properly to be explained

16 to a suspect before he is questioned.

17 JUDGE KARIBI WHYTE: Yes, he should have explained that to

18 him.

19 MR. GREAVES: You did not explain the detail of Rule 42(B)

20 to him, Mr. Abribat; is that it?

21 A. May I answer you, your Honour?

22 JUDGE KARIBI WHYTE: Yes, you may.

23 A. Well, my feeling is that I said that precisely. The

24 presence of a counsel was necessary for the interview

25 unless he accepted to speak without counsel being

Page 3240

1 present. I thought I told you that.

2 Q. Did you explain to him that if he subsequently wanted

3 counsel, he could do so and questioning would cease?

4 Did you explain that to him?

5 A. Yes, absolutely. Now before having an interview I had

6 taken the precaution of coming to see Mr. Mucic to

7 expressly explain what his rights were, to tell him that

8 the interview was take place only in accordance, strict

9 accordance with the rules and therefore I didn't want to

10 enter into any discussion before he'd fully understood

11 the rules and his rights, and that's what I did before

12 starting the interviews.

13 Q. Did you explain Rule 43 to him, the details of that

14 Rule?

15 A. Well, I explained Rule 43 to him. This is the

16 recording of the interview; is that right?

17 Q. You just answer the question, please, Mr. Abribat. Did

18 you explain or not Rule 43 to Mr. Mucic?

19 A. Yes, I did explain it to him.

20 Q. When you say "explain", do you mean simply tell or did

21 you explain what it means?

22 A. No, no. I think I made it clear. I said precisely

23 what the procedure was, how it was going to happen, how

24 it might happen with his agreement.

25 Q. Would your Honours give me a moment, please? You told

Page 3241

1 us this morning that this conversation lasted only for a

2 minute, perhaps two minutes. You were able to explain

3 all of this in just two minutes, were you, Mr. Abribat?

4 A. Yes, absolutely.

5 Q. So it really was just simply a question of you reading

6 out what was or reciting what's in the rules; is that

7 it?

8 A. I explained it to him. I had written down a number of

9 points on a piece of paper and I explained those

10 different points to him.

11 Q. Did you make any attempt whatever to see if he

12 understood what you'd been saying to him?

13 A. Yes, well, I put the question to him. I asked him

14 whether he'd understood clearly what I'd told him.

15 Q. So you did question him then?

16 A. That's a question, if you will, but it wasn't one that

17 called for any answer other than "yes" or "no".

18 Q. And what precisely was the question that you asked and

19 the exact words, if you can remember it, Mr. Abribat?

20 A. Well, the exact words I'm not really sure, but the sense

21 of my question was very clear. I wanted to be sure

22 that he'd understood his rights and whether he would

23 agree going along with the procedure that applied for

24 the Tribunal.

25 Q. So the next time that you saw Mr. Mucic was in the court

Page 3242

1 in front of Judge Sada the following day; is that right?

2 A. Yes, that's right.

3 Q. And you were not allowed to take part in those

4 proceedings?

5 A. No, that's right.

6 Q. You had those proceedings translated to you by an

7 interpreter?

8 A. Yes, but translated not in any literal fashion, as

9 I explained this morning, but rather I asked, since I

10 didn't understand what was going on -- I just wanted to

11 get a sense of what was being said.

12 Q. Well, you were aware that there was some conversation

13 about a lawyer being required, were you not?

14 A. Yes. I was told by the interpreter that there was a

15 question about a lawyer in connection with the

16 extradition proceedings. That's right.

17 Q. In the record of the hearing that we have there is no

18 reference to it being a request for a lawyer concerning

19 extradition proceedings, Mr. Abribat. Did you not take

20 any steps to check what the position was?

21 A. Check what? What is the effect?

22 Q. Check for a lawyer, Mr. Abribat?

23 A. I thought I told you what I understood on the basis of

24 the translation I received it was a matter of a lawyer

25 in connection with these extradition proceedings. That

Page 3243

1 was it.

2 Q. You did not want to check and make sure once again

3 whether or not he wanted a lawyer for the interview with

4 the Office of the Prosecution?

5 A. Well, I did that a second time and it was recorded at

6 the beginning of the interview, because at the beginning

7 of the interview before going into the substance of the

8 matter I asked him whether he wanted to have a lawyer

9 there and his answer was "no".

10 Q. What was the Office of the Prosecution going to ask for

11 at the end of all these proceedings? It was

12 extradition, was it not, to The Hague?

13 A. Am I supposed to answer that question?

14 Q. What was going to happen to Mr. Mucic at the end of your

15 dealings with him, you were going to be asking for him

16 to be extradited to The Hague, were you not, Mr. Abribat?

17 A. I'm sorry but I'm not qualified to seek extradition.

18 Q. Why were you in Vienna, Mr. Abribat?

19 A. To hear Mr. Mucic if he agreed to speak to us according

20 to the rules of the Tribunal.

21 Q. What did you think was going to happen at the end of

22 that procedure, Mr. Abribat?

23 A. I've no idea. I was there to do something quite

24 specific, and I did it.

25 Q. Well, you've told their Honours this morning:

Page 3244

1 "I was involved in this investigation. I set it

2 up. I was involved in managing the record, the case

3 file, yes".

4 Do you mean to tell us this, that you did not know

5 what the purpose of and the end result of what you were

6 doing in Vienna was going to be?

7 A. No, I didn't tell you that. I told you I'm not

8 qualified to seek extradition. I am qualified to carry

9 out investigation. I did everything that I was

10 authorised to do in the framework of that investigation.

11 Q. You having completed your investigation, what did you

12 think was going to happen in relation to Mr. Mucic and

13 the Tribunal?

14 A. Well, listen, between what I think and what I might have

15 wanted to happen is two different things. What I might

16 have wanted is Mr. Mucic and the other persons who were

17 suspects would be brought before this Tribunal but that

18 was just what I might hope might happen, nothing more.

19 Q. Well, forgive me. Were you aware that a request for

20 provisional detention had been issued under Rule 40 in

21 connection with Mr. Mucic when you started this procedure

22 with Mr. Mucic?

23 A. Yes, absolutely.

24 Q. What do you think the end result of such a provisional

25 detention would be? Letting the man go or someone

Page 3245

1 asking for his extradition to The Hague?

2 A. Well, the outcome of the procedure is unforeseeable,

3 because it was also a matter of the Austrian authorities

4 stating their position in respect of extradition.

5 Q. You had plainly contemplated, had you not, the question

6 of him being handed over to the Tribunal, and that would

7 have to be by way of extradition, would it not?

8 A. No. I think we have to be specific on this. I did not

9 envisage or consider anything. I just carried out my

10 duties.

11 Q. Do you remember sending a Memorandum to one Cees

12 Hendriks on 6th March 1996, Mr. Abribat?

13 A. I sent several of them, so maybe you have to be a bit

14 more specific.

15 Q. Let us just refresh your memory. I suggest to you

16 this. You sent a Memorandum on 6th March by fax at

17 13:58 hours on that date. It was addressed to a man or

18 woman -- I don't know whether it's man or woman -- Cees

19 Hendriks. The subject was questioning with German and

20 Austrian authorities concerning the arrest of Delalic

21 and Mucic. Does that refresh your memory at all?

22 A. Not really in terms of detail, but it's quite possible

23 I might have informed Mr. Cees Hendriks of how things

24 were going in terms of the procedure and investigation,

25 yes.

Page 3246

1 Q. Cees Hendriks was the person you were dealing with in

2 Vienna; is it?

3 A. No, not at all. I think there's a mistake there.

4 Q. Would you have sent that -- were you sending memoranda

5 in English, French or German?

6 A. It depends. Both languages, English and French, are

7 official of the Tribunal, so I could use either.

8 Q. Have a look at the German and see if you recognise this

9 document, please.

10 MS. McHENRY: May the Prosecution see that first, please?

11 MR. GREAVES: Of course. I hope my learned friend's German

12 is as good as mine.

13 A. Well, I don't speak any German at all, so it's a bit

14 difficult for me to tell you what this is.

15 Q. Well, just have a look, please, at the second page,

16 Mr. Abribat.

17 A. Yes.

18 Q. I think there is a paragraph at the end which is ten

19 lines long which happens the word "Osterreich" in it.

20 Do you see that, about eight or ten lines up from the

21 bottom? . Would it assist you if I show you where I am

22 referring to, Mr. Abribat? I do not want to be unfair to

23 you?

24 A. Yes, please, if you would.

25 Q. Would your Honours excuse me for a moment?

Page 3247

1 (Indicating). Now appreciating that you do not read

2 German, what I suggest to you is contained in there, and

3 this is an approximate translation:

4 "After the arrest there are possibilities for the

5 handover of the arrested persons:

6 1: Opening of the legal proceedings under

7 Austrian law by the Austrian authorities. (The law

8 should be passed). After they enact the law, the

9 Tribunal should make a request for the handing over of

10 the arrested persons.

11 2: At a request or with the approval of the of

12 the accused, he could choose to be handed over to the

13 Tribunal instead of Bosnia. If he decides to make this

14 choice, would the Austrian government hand him over to

15 the Tribunal? Concerning that the death penalty exists

16 in Bosnia, this alternative should be more practical and

17 efficient".

18 I suggest to you that you were well before

19 arriving in Vienna to see this man already contemplating

20 the idea that he would be extradited to the Tribunal,

21 Mr. Abribat. That is right, is it not?

22 A. Well, as I've already told you, yes, I did hope that he

23 would be transferred here. Yes, that's right.

24 Q. So when he was talking to the court about having a

25 lawyer concerning extradition, that covered being

Page 3248

1 extradited to The Hague, didn't it?

2 A. I don't know. I can't really say, because the

3 extradition procedure, I don't know whether it was for

4 the extradition by the Tribunal or to another country.

5 Q. Mr. Abribat, you knew full well at the end of the

6 interview with Judge Peter Sada, which completed itself

7 at 3.10, you knew, didn't you, that Mr. Mucic wanted to

8 have a lawyer?

9 A. No, absolutely not.

10 Q. And that, I suggest, came as a blow to you, didn't it?

11 A. No, absolutely not, and I don't really see why you're

12 insisting on that part, because I told you that there

13 was the matter of whether there was going to be a lawyer

14 there or not. I didn't get a full translation. I was

15 told that it was in connection with the extradition

16 procedure and that's all.

17 Q. Did you know that an indictment was already almost

18 complete and all the material to support it had been

19 gathered together? Did you know that, who you were in

20 charge of this investigation?

21 A. An indictment by the International Tribunal, do you

22 mean?

23 Q. Yes, Mr. Abribat.

24 A. Well, the indictment I don't know where it stood when we

25 were in Vienna. I don't recall. But I did hope there

Page 3249

1 would be an indictment, yes.

2 Q. I think it is a matter of public record that it was 21st

3 March 1996, Mr. Abribat, three days after you went to

4 Vienna to go and have a chat with Mr. Mucic. Are you

5 saying to us that you didn't know that that was about to

6 be placed before His Honour Judge Jorda, you who set up

7 this investigation and were in charge of it? You did

8 not know that?

9 A. Well, with regard to the dates you mentioned, no, but

10 you say a chat. Well, I don't agree to the use of that

11 term, a chat. We are talking about something that was

12 quite in accordance with the rules and the procedures.

13 Q. Are you saying you did not know that an indictment was

14 about to be placed before Judge Jorda? Is that your

15 evidence?

16 A. I knew that an indictment was being prepared and what

17 I've told you is that I didn't know exactly where it

18 stood, and what the dates at which it was submitted or

19 finalised and brought before Judge Jorda, no, I didn't

20 know what those dates were, no.

21 Q. You were in a terrible hurry to interview this man, were

22 you not?

23 A. No, I've never had that kind of an attitude in

24 investigations. I go ahead with the investigations at

25 the right speed, taking the right precautions and

Page 3250

1 abiding by the procedures. It is the procedures which

2 dictate the speed at which you proceed, not how fast you

3 want to go yourself.

4 Q. I suggest you knew full well there was an indictment

5 about to be placed before the court for confirmation?

6 A. Yes, yes, I knew that an indictment was being prepared.

7 Q. You wanted to complete interviewing this man before he

8 got back to The Hague, didn't you?

9 A. No, absolutely not. You are misinterpreting things

10 there, because I left Vienna before the questioning was

11 over.

12 Q. And you wanted to question him and complete that process

13 before he got back to The Hague in order to take

14 advantage of the confusion of his being arrested, didn't

15 you?

16 A. No, absolutely not. I do not know where you get these

17 kind of illusions from. Those are just -- I don't work

18 on that basis.

19 Q. You see, what I suggest happened was that you became

20 angry before the court hearing before Judge Sada and the

21 knowledge that you -- that he wanted to have a lawyer;

22 isn't that right?

23 A. No, absolutely not. I wasn't angered at all. Quite

24 frankly I don't understand the point of your

25 questions. You make these illusions, you make these

Page 3251

1 statements, but that's not it at all.

2 Q. You then conducted a short, 20 minute conversation with

3 the defendant after seeing Dr. Sada?

4 A. Absolutely not.

5 Q. During the course of which you told Mr. Mucic that he

6 could go home at the end of questioning if you talked to

7 him without a lawyer; isn't that right?

8 A. No, that's absolutely wrong.

9 Q. But made it plain to him if he wanted to hang on with a

10 lawyer that he was going to be there forever and kept

11 locked up; is that not it?

12 A. I do not know which country you come from and what rules

13 you have, but in my country that's not how it works.

14 We have rules of procedure. We have texts and we stick

15 to the texts. So what you're saying is absolutely

16 untrue. I saw Mr. Mucic on two occasions, as I've

17 already explained. The first time it was on the 18th

18 for two or three minutes simply to explain to him the

19 stages of the procedure and the second time it was on

20 the 19th to go ahead with the interview, but I strictly

21 abided by the letter and the spirit of the texts I was

22 bound to.

23 Q. When you spoke to Mr. Mucic with the cameras rolling for

24 the first time, Mr. Abribat you said this, amongst other

25 things:

Page 3252

1 "The first question is: do you agree to answer

2 our questions without the presence of an attorney in

3 accordance with our previous conversation".

4 Which previous conversation are you referring to

5 there, Mr. Abribat?

6 A. Well, I thought I explained that this morning, that

7 I was referring to the two or three minutes conversation

8 I had with Mr. Mucic on the 18th, that is to say when

9 I told him what the procedures of the Tribunal were and

10 I referred back to that so that there would be no

11 problem in that. I'd seen Mr. Mucic for three minutes

12 on the 18th, so I stated that I had seen him.

13 Q. That, I suggest, was in the 20 minutes -- that

14 conversation was in the 20 minutes between Dr. Sada

15 seeing him and you starting the interview?

16 A. No, no. I am sticking to what I said. That is not

17 true. I never saw Mr. Mucic for any 20 minutes.

18 That's absolutely untrue.

19 Q. You did that because you were determined that he should

20 be interviewed somehow or another without a lawyer?

21 A. Listen, sir, I think you have certain desires. You'd

22 like things to be what they're not. I've been involved

23 in questioning for 20 years. I always prepare my

24 questions and I had prepared things for Mr. Mucic.

25 Maybe I could find my notes, my preparatory material.

Page 3253

1 In that material I have a reference to the presence of

2 an attorney. If I might just add something, your

3 Honours.

4 JUDGE KARIBI WHYTE: If it is answered with reference to

5 the questions put to you, if it has any relevance to it?

6 A. Yes, absolutely, and you'll judge for yourselves. It's

7 not for me to say.

8 JUDGE KARIBI WHYTE: Yes, you can?

9 A. Simply before going on an assignment -- before going to

10 Vienna in connection with the arrest of Mucic we asked

11 for a list of the lawyers available on call in Vienna so

12 that we don't have to waste time if Mr. Mucic decided

13 that he did want a lawyer.

14 MR. GREAVES: When you gave evidence this morning, you told

15 us concerning what happened before the cameras began and

16 you said this:

17 "This is the equipment we're going to use in order

18 to record this hearing. I'm also going to show you the

19 video recorder saying this is the other piece of

20 equipment that I'm going to use and we will respect the

21 forms that I gave to you yesterday."

22 What forms did you give to him?

23 A. Meaning that I'll follow the Rules of Procedure that

24 were in effect at the Tribunal for the interview.

25 Q. What do you mean by the word "forms" Mr. Abribat? Are

Page 3254

1 you talking about some document that you gave to him?

2 A. No, when I talk about these -- by this term I mean the

3 Rules of Procedure and Evidence.

4 Q. So what you mean, in fact, is the word "formalities",

5 not "forms"?

6 A. I don't know how it was interpreted into English or what

7 the interpretation would be, but yes, that's possible.

8 Q. Mr. Abribat, just let me make it absolutely plain once

9 again what I'm suggesting to you. You, during the

10 course of the 20 minutes said things to Mr. Mucic

11 designed to persuade him to do without a lawyer, a

12 lawyer you knew he wanted.

13 A. I too will be very clear. Why do you refer to this 20

14 minutes that I'm not even aware of? What allows you to

15 assert that I had a private 20 minute discussion with

16 Mucic? I really don't understand.

17 Q. You also told us this morning this, when you were asked

18 by Ms. McHenry -- you were asked this question:

19 "Among the rights that you advised Mr. Mucic of,

20 did you advise him that he had the right to an attorney

21 and if he had not had the possibility of getting one

22 himself, one would be assigned to him".

23 Your reply was this:

24 "Yes, absolutely. I said it twice before we

25 began the questions"?

Page 3255

1 A. Yes, I said it twice. I said it on the 18th when I saw

2 him for the first time, and on the 19th, when we began

3 the interview. That's the two times.

4 Q. You go on in the course of your evidence:

5 "It was the same thing under the circumstances."

6 I'm sorry. That is not a good point. I do

7 apologise. I suggest what you meant there was you had

8 had a conversation with him prior to commencing the

9 formal part of the questions under Rule 43?

10 A. No, I had no conversation with Mr. Mucic. I can tell

11 you for the nth time that I saw him for two minutes on

12 the 18th with the translator and the Austrian police

13 officer, and then I saw Mucic for the interview after

14 having been with the judge in his office a little while

15 the judge explained to me what Mucic's status was.

16 I never saw him outside those two very specific

17 occasions.

18 Q. Immediately before the luncheon adjournment you were

19 asked this question:

20 "Question: Did you make any reference to the fact

21 that he'd previously spoken, albeit briefly, with

22 Mr. Mucic in the recorded part of the interview?

23 Answer: Yes, of course. I referred to that

24 because for me I simply had to refer to the first

25 explanation of his rights. That would seem normal to

Page 3256

1 me for us to speak what has been said. I said: "I have

2 already explained your rights to you. I'm going to

3 repeat what I've said and afterwards you will give your

4 answer and say whether or not you agree to speak".

5 When did you have that conversation with the

6 defendant?

7 A. Could you ask that question again, please?

8 MR. GREAVES: Certainly, Mr. Abribat. You gave evidence

9 this morning in the following terms. The question was

10 asked of you in this way:

11 "Question: did you make any reference to the fact

12 that he had previously spoken, albeit briefly, with

13 Mr. Mucic in the recorded part of the interview?

14 Answer: Yes, of course. I referred to that

15 because for me I simply had to refer to the first

16 explanation of his rights. That would seem normal to

17 me for us to speak what has been said. I said: "I have

18 already explained your rights to you. I'm going to

19 repeat what I've said and afterwards you will give your

20 answer and say whether you agree or not".

21 When do you say that that conversation I've just

22 read out took place?

23 A. What I said this morning is that before the recording

24 began I saw Mr. Mucic and I said to him that: "We're

25 going to begin the recording of the interview if you

Page 3257

1 agree that this be done without a lawyer and we'll begin

2 by reading your rights". Then I began the recording by

3 reading out the rights. The first sentence of the

4 interview I believe that we are this or that place

5 before this or that person, that we're in the presence

6 of Mr. Mucic and then I think that I have to ...

7 Q. You see, Mr. Abribat, that conversation that you related

8 to us this morning, that's not recorded in the

9 interview, is it?

10 A. That isn't a conversation. That's simply setting up

11 the process to be used -- the procedure to be used for

12 the interview.

13 Q. You see, I suggest that you did -- that's an indication

14 that you did have a conversation about having a lawyer

15 with him before the cameras started to roll and that

16 you're not telling the truth to this Tribunal about

17 that, are you?

18 A. No, I think that you are making an incorrect

19 interpretation. You're playing with words. I'm

20 telling you the exact truth, the exact truth to this

21 Tribunal, that I never attempted to take away any of the

22 Mucic's rights or betray the spirit of the Rules of

23 Evidence and Procedure. Perhaps in your country that

24 is the way people work, but not in mine.

25 Q. So is it your evidence that despite what you said this

Page 3258

1 morning that you had had this conversation, you are now

2 saying you did not have this conversation?

3 A. I think that you're playing with words. I did not have

4 a conversation. I simply explained to Mr. Mucic and

5 this is what you're trying to show, that when explains

6 things too much, it could be a mistake. So contrary to

7 what you might think I took my time to explain it but I

8 didn't have a conversation at all. As far as the

9 second time was concerned, I was with Mr. Mucic.

10 I recorded the interview and I simply said that: "We are

11 now going to ask you questions according to the

12 formalities that are in effect at the Tribunal, that is

13 we are going to record what we're going to do" and

14 I showed him the equipment.

15 Q. Were you present during each of the interviews that was

16 conducted by the OTP with Mr. Mucic?

17 A. No, I was only there on the 19th. After that I came

18 back.

19 Q. At the interview on 19th March was there any particular

20 reason why you did not set out in that interview that he

21 was a suspect in a war crimes matter?

22 A. I'm sorry. I didn't really understand the sense of

23 your question.

24 Q. I think it is quite simple, Mr. Abribat. In that

25 interview you did not say to him in terms: "You are a

Page 3259

1 suspect in connection with war crimes committed at the

2 Celebici camp between May 1992 and November 1992", did

3 you? You never said that?

4 A. I don't know. I don't remember.

5 Q. Well, will you accept from me that it isn't there,

6 Mr. Abribat?

7 A. Why could I agree with what you're saying? I'm just

8 saying I don't remember. However, what I do remember

9 is that it was clearly pointed out to Mr. Mucic for what

10 reasons the international Tribunal wished to meet him.

11 Q. But you didn't do that at the beginning of the formal

12 interview with him, did you?

13 A. I don't know. We'd have to listen to the recording.

14 Q. Well, we've got the transcript, Mr. Abribat. Will you

15 accept from me or not that it isn't there?

16 A. I don't know what has to be accepted or not from you.

17 I really do not know. You said a little while ago that

18 I had spoken for 20 minutes with Mr. Mucic. You assert

19 this in a way in my opinion which is completely false.

20 I just don't know.

21 Q. At the conclusion of the interviewing that you carried

22 out why didn't you offer him an opportunity to clarify

23 anything he had said or to add anything that he wished?

24 A. The questions were interrupted. The guards of the

25 prison interrupted us and said that things were over,

Page 3260

1 that their shift was over and we had to stop. I asked"

2 could we go on?" They said "no, that's it". Therefore,

3 we stopped the questioning, but I can tell you it was

4 not complete, because the next day it was taken up

5 again, it was resumed and that's what happened.

6 Q. There was nothing to prevent you complying with Rule

7 43(3), was there, at the end of that interview,

8 Mr. Abribat?

9 A. The interview was not complete and I didn't want to say

10 anything further.

11 Q. Forgive me, Mr. Abribat. The interview came to an end,

12 didn't it.

13 MS. McHENRY: Objection. I think this is arguing with the

14 witness. The witness has been very patient. The

15 transcript speaks and I think he has answered this

16 question very clearly.

17 MR. GREAVES: With great respect, I don't think he has

18 answered the question at all clearly.

19 JUDGE KARIBI WHYTE: He can answer it again. It's a

20 simple question. It's quite simple. You can answer

21 it?

22 A. The answer is that the interview had been interrupted by

23 the guards. Is that what you are asking me?

24 MR. GREAVES: It is quite simple, Mr. Abribat. Did the

25 interview come to an end?

Page 3261

1 A. The interview was interrupted by the guards. They told

2 us to stop at a specific point.

3 Q. So you are saying that it didn't come to a conclusion.

4 Is that what you're saying?

5 A. I'm telling you it was finished because we had been

6 interrupted by the guards but that the questioning

7 resumed the next day with another investigator.

8 Q. And so the fact that it was merely interrupted rather

9 than concluded, that is a justification for you not to

10 ask him whether he wishes to clarify anything; is that

11 it?

12 A. I couldn't even ask that question because we were

13 stopped by the guard. They took him away because their

14 shift was over.

15 Q. Yes. No further questions. Thank you.

16 JUDGE KARIBI WHYTE: You also want to ask questions?

17 MR. OLUJIC: Yes.

18 JUDGE KARIBI WHYTE: I thought Mr. Greaves was asking them

19 on behalf of --

20 MR. OLUJIC: Yes, your Honour.

21 JUDGE KARIBI WHYTE: Well, you can do so if you want to.

22 MS. McHENRY: Your Honour --

23 MR. OLUJIC: Mr. Greaves carried out the cross-examination on

24 behalf of the defence, but I would like to join in this

25 cross-examination of Mr. Abribat. Thank you, your

Page 3262

1 Honours.

2 MS. McHENRY: Excuse me. I'm sorry, counsel. May I be

3 heard just for one minute?

4 JUDGE KARIBI WHYTE: Yes, let us hear you.

5 MS. McHENRY: The Prosecution does object. The judges made

6 it very clear in the beginning that one counsel would be

7 expected to ask. There are, I believe, ten defence

8 counsel appointed to represent the accused, and I think

9 it would be unfair to witnesses in general. If it's

10 just one or two questions for this witness, we will not

11 particularly stand on this objection, but the

12 Prosecution does object to multiple counsel for the same

13 accused asking -- cross-examining the witnesses.

14 JUDGE KARIBI WHYTE: Actually one is getting a little fed

15 up with the difference of professional practice being

16 demonstrated here. I thought if Mr. Greaves has gone

17 into such details in asking questions, cross-examining,

18 at least he had the leave of lead counsel to do so.

19 I did not expect lead counsel to get up to ask questions

20 again over and above whatever has been done. I think

21 you should understand what professional practice looks

22 like.

23 MR. OLUJIC: Your Honours, I understand, but your Honours

24 have already allowed me to put my questions and it was

25 after that that my learned colleague from the

Page 3263

1 Prosecution objected, so I think that I have been given

2 the opportunity to cross-examine the witness but, of

3 course, it is up to you to rule on this, whether I may

4 begin the cross-examination, but let me repeat: you

5 allowed me to speak and only then did the representative

6 of the Prosecution object.

7 JUDGE JAN: I am not sure two counsel for the same accused

8 unless it is stated right at the beginning of the

9 cross-examination can be allowed to cross-examine the

10 same witness. Mr. Greaves has done that. He should

11 have told us that he is going to cross-examine on

12 certain aspects and the lead counsel will cross-examine

13 on the other aspects. This is just not done. You

14 cannot have two cross-examinations going on like this.

15 JUDGE KARIBI WHYTE: Obviously there is no consultation

16 between you and your co-counsel. I have observed that

17 not only in this instance. You will try and consult

18 properly with co-counsel so that you know how to

19 organise the defence of your client. This is not the

20 first instance. That is why it is giving one a little

21 problem.

22 JUDGE JAN: That can come to harrassing a witness. You

23 are covering the same ground all over again.

24 Mr. Greaves could have told us right at the beginning he

25 is cross-examining with regard to this aspect of the

Page 3264

1 evidence and the lead counsel will do it with the other

2 aspects.

3 MR. OLUJIC: Your Honours, I respect your position and I

4 will withdraw my questions, but the questions that

5 I wished to put to Mr. Abribat will be possible for me to

6 put to the next witness when I shall take advantage of

7 that right that I have.

8 JUDGE JAN: I have a question to ask from the witness.

9 While you were explaining the rights to the suspect that

10 he did not have to make a statement, he had a right to

11 counsel and he had to -- he could remain silent if he

12 wanted, and if he made a statement that it was used in

13 evidence against him, was it also video recorded?

14 A. On 18th, when I explained the rules of procedure -- no,

15 of course not. It was not recorded. I explained to

16 him merely what the stages were, and then on the 19th

17 when we began the interview I repeated his rights to him

18 and his rights were recorded.

19 JUDGE JAN: Why was that not video recorded? That would

20 have ended some of the controversy which is being raised

21 before us. You were questioning him whether you want a

22 counsel, whether you want to remain silent, whether you

23 know that this evidence will be used in evidence before

24 you. Why was that not video recorded if you were

25 questioning him within the meaning of Rule 43?

Page 3265

1 A. It was recorded during the interview on the 19th.

2 Everything was recorded on the 19th including the rights

3 according to rules 42 and 43. The difference that

4 I was making was on the 18th I explained it to him,

5 because I explained that in order to record he had to

6 authorise my doing so. So first I printed things to

7 him and at the time that the interview took place, that

8 is on the 19th, it was recorded, including the rights,

9 of course.

10 MR. O'SULLIVAN: Your Honours, counsel for Mr. Delalic does

11 have questions for this witness, but given the time I am

12 not sure whether you want to start now or perhaps take

13 the break. Whatever you feel is best.

14 JUDGE KARIBI WHYTE: The break is at 4 o'clock. We can

15 break at 4 o'clock and come back.

16 Cross-examination by Mr. O'Sullivan.

17 MR. O'SULLIVAN: May it please the courts ...

18 JUDGE KARIBI WHYTE: You can proceed.

19 MR. O'SULLIVAN: Good afternoon, sir. I have a few

20 questions for you as well. Could you remind us when

21 you joined the office of the OTP as an investigator?

22 A. I was recruited by the Tribunal in March or April of

23 1995.

24 Q. When did you leave the office of the OTP?

25 A. January 1, 1997.

Page 3266

1 Q. You were the person responsible for investigation in the

2 Celebici case; is that correct?

3 A. Yes, that's right.

4 Q. When did you become responsible for investigations in

5 this case?

6 A. From the beginning when I was sent to the Tribunal I was

7 sent to be the head of the investigating team. That is

8 from the very beginning.

9 Q. Was all or only a part of your time spent investigating

10 Celebici?

11 A. I devoted a lot of time to investigating Celebici, but

12 that was not the only investigation that we had begun.

13 Q. How many other cases were you working on?

14 MS. McHENRY: Your Honour, I'm going to object to other

15 questions about other investigations. I think that the

16 matter of what is going on in the Prosecutor's Office

17 with respect to other investigations, including how many

18 investigations this particular team was working on, are

19 improper and irrelevant.

20 MR. O'SULLIVAN: Well, perhaps I can ask this question.

21 I just wonder what percentage of his time --

22 JUDGE KARIBI WHYTE: You can ask your questions. I do not

23 see any relevance in it.

24 MR. O'SULLIVAN: Aside from Celebici how many other cases

25 were you investigating?

Page 3267

1 A. We were carrying out investigations in two other areas,

2 two other directions as well.

3 Q. So how much of your time would you say in percentage, if

4 you will, was spent on Celebici?

5 A. Percentage of time depended on the organisation of our

6 work. When we were working on Celebici we did it 100

7 per cent, and when we were working on other

8 investigations, we did the same thing for them.

9 Q. You were in the Office of the Prosecution for how long?

10 A year and a half; correct?

11 A. A little longer than that. 21 months, I believe.

12 Q. Out of those 21 months, how many were spent on Celebici?

13 A. The entire first year and I would say about -- so

14 I would say about fifteen months.

15 Q. Fifteen months, 100 per cent of your time was spent

16 investigating Celebici; is that correct?

17 A. No. I worked for fifteen months but I am talking about

18 the first fifteen months of my work within the

19 Tribunal. During the first fifteen months I also

20 looked at other possibilities which might lead to

21 investigations.

22 Q. If I've understood you correctly while you were working

23 on Celebici for fifteen months, that's the only case you

24 were investigating; is that correct?

25 A. Perhaps I didn't express myself right, the first fifteen

Page 3268

1 months were devoted to the Celebici investigation. The

2 team worked on the Celebici camp, but during the first

3 fifteen months I also had occasion to work in other

4 areas of investigation.

5 Q. You were the head of a team. Is that the proper way to

6 explain your role in investigations?

7 A. Yes, that's right. I was responsible for the

8 investigating team.

9 Q. How many people were in the team that investigated

10 Celebici?

11 MS. McHENRY: Your Honour, I'm going to object to questions

12 about how the Office of the Prosecutor is organised and

13 set up.

14 JUDGE KARIBI WHYTE: Why do you object to how the

15 particular investigation was organised?

16 MS. McHENRY: Because I think matters of how the Office of

17 the Prosecutor is set up and conducts its investigations

18 are privileged, and it's --

19 JUDGE KARIBI WHYTE: There is no such privilege.

20 JUDGE JAN: What privilege are you claiming?

21 MS. McHENRY: With respect to the internal workings of the

22 Office of the Prosecutor.

23 JUDGE JAN: You are talking about privilege now so I would

24 like to know what is the basis of your claiming

25 privilege.

Page 3269

1 MS. McHENRY: Maybe I expressed myself badly with respect to

2 privilege, but I don't believe that questions about

3 exactly how the Office of the Prosecutor is organised

4 and conducts its investigation are proper. I believe

5 they are irrelevant.

6 JUDGE KARIBI WHYTE: There might be questions leading us to

7 how far he could have effectively have done some of the

8 things he stated he has done, so let him answer the

9 questions.

10 MR. O'SULLIVAN: Perhaps I will repeat my question to him,

11 sir.

12 JUDGE KARIBI WHYTE: Please answer the question.

13 MR. O'SULLIVAN: In your team how many people worked under

14 you while investigating Celebici?

15 A. It fluctuated. I could say about 12.

16 Q. And all 12 of these people reported back to you; is that

17 correct?

18 A. Yes, that is correct.

19 Q. What were the backgrounds of these people?

20 A. The professional training or background of those people

21 really went into three areas. They were professional

22 investigators. Most of them come from police

23 services. There were also legal specialists. Then

24 there were analysts.

25 Q. In these three categories, you say they all reported

Page 3270

1 back to you; is that correct?

2 A. Yes, that is correct.

3 Q. What do you mean by "analysts"? What kind of people are

4 they?

5 A. The analysts are people who are responsible for studying

6 and synthesising all the documents and anything which

7 may have to do with the conflict which took place in the

8 former Yugoslavia.

9 Q. Typically what would their background be? The first two

10 categories was police and second legal. What would the

11 analysts' background be typically?

12 A. Well, I cannot tell you what the traditional analyst's

13 background is, but I can tell you these people who were

14 specialists in studying documents somewhat like a

15 historian or a journalist.

16 Q. Did you yourself work directly out of an office of this

17 Tribunal?

18 A. I'm sorry. I don't understand that question.

19 Q. I'm sorry. Did you spend most of your time in the

20 office or in the field yourself?

21 A. I hadn't really calculated the exact percentages, but I

22 can say that I was on many assignments in Bosnia, about

23 fifteen or 20.

24 Q. Fifteen or 20 dealing with Celebici?

25 MS. McHENRY: Object as to relevance.

Page 3271

1 JUDGE KARIBI WHYTE: More than fifteen for 20 times in the

2 field? That's what you are suggesting.

3 A. I travelled to Bosnia between fifteen and 20 times, yes,

4 that is correct.

5 MR. O'SULLIVAN: Of those fifteen or 20 times how many times

6 were you there investigating as to Celebici.

7 MS. McHENRY: Objection as to relevancy.

8 JUDGE KARIBI WHYTE: Why don't you leave him to answer the

9 question? Please kindly answer the question.

10 A. About ten missions.

11 MR. O'SULLIVAN: As you know, there are four co-accused in

12 this case. Did the members of your team investigate

13 all four of the co-accused?

14 A. That's not quite what the methodology was. Within the

15 team we all worked on Celebici, which means that there

16 was not any kind of division between those investigators

17 who were specifically charged with working on one of the

18 accused, but it was a distribution which had to do with

19 the interests of the work. It was not done according

20 to the name or the position of the accused, if that's

21 what your question is.

22 Q. Well, on what basis was it done, if it's not according

23 to the person's name? How was work divided up in

24 investigating among the four accused?

25 A. The investigating work is work which I think of as

Page 3272

1 typical police work. Therefore there is a police

2 investigation which takes place in four stages. First

3 of all, one must establish the facts. After that, one

4 must find witnesses and victims. Then one must collect

5 evidence, and the last stage is arresting people and

6 bringing them before the court. So depending on the

7 organisation of these four steps you organise your work

8 and the first work which had to do with analysing the

9 facts, this was the work which everybody worked on, but

10 specifically the analysts. We evaluated the facts and

11 then we sought out the victims and witnesses, which took

12 us the most time, and this is why for this case we went

13 to Bosnia about ten times in order to try to find

14 people. After the end of the missions we were in a

15 position to meet many of the victims and the witnesses

16 and after that we tried to collect as much evidence as

17 possible in order to implicate people.

18 Q. Through your investigations I'm sure you learned about

19 the military structures in Bosnia-Herzegovina as they

20 existed in early 1992?

21 A. Yes, that's true.

22 Q. Do you know the names of these military structures?

23 A. The military structure at that time, the beginning of

24 the war, that is through 1992 it evolved, because Bosnia

25 was not prepared for this type of conflict and they were

Page 3273

1 attempting to try to find a traditional military

2 structure, as would be found in countries with their own

3 military institutions. Therefore what had to be done

4 at that time was to try to understand what the situation

5 of the forces were. They had to set up a military

6 hierarchy and an organisation. There was an

7 organisation, but it evolved as the conflict went on and

8 was constantly being changed and it was never set up in

9 a traditional sense as it would be found in another

10 place.

11 Q. In early 1992 did you know the names of the military

12 structures in Bosnia?

13 MS. McHENRY: May I ask for the relevance -- well, may

14 I object without any kind of showing of relevance.

15 This witness has not been established as an expert in

16 military structures and I don't see the relevance for

17 this witness.

18 JUDGE JAN: Well, he is the head of the investigating team,

19 so they can ask him questions maybe not relevant

20 entirely to the evidence which he gave in direct

21 examination but he is the head of the investigating

22 agency. Therefore they probably want to find something

23 from him which he learned as head, because everyone is

24 reporting to him.

25 MR. O'SULLIVAN: Shall I repeat my question for you? We are

Page 3274

1 talking about the names of the military structures and

2 I'm asking you: do you know the names of the military

3 structures in Bosnia in early 1992?

4 A. The structure of the Bosnian Army around 1992 was what

5 was known as the Territorial Defence. The Territorial

6 Defence was an old structure that dated from the time of

7 Yugoslavia, which was composed of what one could say, a

8 kind of a people's defence, people who were in their

9 villages or who worked -- or in their workplaces who

10 could be put into a kind of military structure as it

11 existed in the former East Block countries. Therefore,

12 the Bosnian Army was constituted on that basis, and on

13 that basis they tried to set up a military structure

14 which would be divided region by region, which had its

15 own hierarchy and which had to report to the Supreme

16 command at Sarajevo. Additional difficulty at that

17 time is for a great deal of time and throughout 1992

18 there were no ranks within that military Bosnian

19 structure. It was not an army, as I said, not a

20 traditional army. So one does not have references to

21 specific ranks, but rather to responsibility, functions.

22 Q. Did you ever hear of an organisation called MUP?

23 A. Yes.

24 Q. What was MUP?

25 A. For me MUP was the police service.

Page 3275

1 Q. Did your investigations show that in early 1992 both MUP

2 and TO were composed of Muslims, Croats and Serbs?

3 A. Yes, of course. The three communities were represented

4 within the Bosnian structures, but very quickly there

5 was total control of everything that had to do with

6 giving out orders by the Muslim community.

7 Q. This composition of MUP and TO existed in the Konjic

8 municipality; is that not correct?

9 A. As far the Muslim and Croatian communities, yes, but not

10 for the Serbian community, as you have alluded to

11 because in that region there was a great preponderance

12 of Croats and Muslims. There were very few Serbs.

13 They were very much in the minority. There were only

14 about two or three villages. More specifically Serbian

15 and the percentage of those cities was really quite low.

16 Q. But you do know that in the Konjic municipality there

17 were Muslims, Croats and Serbs who were members of MUP

18 and TO in early 1992?

19 A. MUP, Territorial Defence. MUP certainly; Territorial

20 Defence, I'm not so sure.

21 Q. Through your investigations did you learn about civilian

22 structures in the municipality of Konjic?

23 A. Yes. The municipality was under the authority, under

24 the war council. I think that's what it was called.

25 They had set up structures which derived from the

Page 3276

1 conflict, from the events.

2 Q. And your information showed as well that within the

3 civilian structures they were composed of Muslims,

4 Croats and Serbs as well?

5 A. One could see those communities, but as far as the

6 Serbians were concerned, they were removed very quickly

7 from any leadership bodies, any representative bodies,

8 in fact. The Croats were set aside a little bit later

9 during 1994. Afterwards the representative organs and

10 the decision-making organs, that is the organs that made

11 the decisions, were under total control of the Muslims.

12 Q. I take it this information about military and civilian

13 structures came to you in part from the people in your

14 team who reported to you; is that correct?

15 A. That's part of investigating work, yes, and then there's

16 the analytical work of all the documents that we'd

17 gathered.

18 Q. At any point did you yourself verify the accuracy of the

19 information you have received from your investigators?

20 A. Our work consisted, in fact, of verifying as much as

21 could be verified having to do with the initial

22 information and to the extent that could be verified,

23 yes.

24 Q. So it would be looked at and checked or double checked;

25 is that what you are saying?

Page 3277

1 A. One checks what one can. In so far as one has several

2 -- a delay of several years -- this is not an ordinary

3 criminal investigation. We came to Bosnia in 1995,

4 1996. That is three -- three or four years had already

5 passed since the time the acts had been committed. What

6 gives strength to an organisation is if one can arrive

7 early, one can congeal, if you like, a situation and

8 then base the direction of your investigation on that.

9 That was not the case in this case. When there is --

10 where there was a conflict. What was possible for us

11 to check, we did try to check, yes.

12 Q. My last question on this point is I assume you yourself

13 collected some of this information personally on

14 military and civilian structures through your trips; is

15 that correct?

16 A. Yes, that is correct.

17 Q. So you'd agree with me that it's fair to say that you

18 were familiar with the military structures and

19 organisation in the Konjic municipality in early 1992?

20 A. I know about that structure. I was not -- I did not

21 have expert knowledge perhaps, but sufficient knowledge,

22 yes.

23 JUDGE KARIBI WHYTE: Professor O'Sullivan, I think the

24 Trial Chamber will rise now for 30 minutes.

25 (4.00pm)

Page 3278

1 (Short break)

2 (4.30 pm)

3 JUDGE KARIBI WHYTE: Can you please invite the witness?

4 (Witness re-entered court)

5 JUDGE KARIBI WHYTE: Please inform Mr. Abribat he is still

6 on his oath.

7 THE REGISTRAR: Mr. Abribat, may I remind you that you are

8 still under oath.

9 JUDGE KARIBI WHYTE: You can carry on.

10 MR. O'SULLIVAN: Thank you, your Honours. Sir, before the

11 break you recall that we were discussing your knowledge

12 of the military and political structures in Konjic

13 municipality. Do you recall?

14 A. Yes.

15 Q. You told the court that based on investigations that

16 your team had carried out and that you had carried out

17 you knew that there was a TO and MUP?

18 A. That's right.

19 Q. And you also told the court that in early 1992 TO and

20 MUP were composed of people from three groups: Muslim,

21 Croat and Serbian?

22 A. Well, with regard to MUP, yes, but with regard to

23 Territorial Defence I said that I didn't necessarily go

24 along with that.

25 Q. So you're saying your investigations showed that the TO

Page 3279

1 was not composed of Muslims, Croatians and Serbs?

2 A. No, in the Konjic region in particular I don't think

3 that there were any Serbs in the Territorial Defence

4 once the conflict started.

5 Q. Do you recall on March 14th, 1996 that you prepared a

6 declaration regarding the background in Konjic

7 municipality and Celebici camp in particular?

8 A. I don't recall the specific date, but if you have the

9 note, then that must be it.

10 Q. Perhaps with the assistance of the usher we could show

11 this document to the witness.

12 A. Yes, fine.

13 Q. So you recognise this document as your own?

14 A. Yes.

15 Q. And you prepared this document yourself on 14th March

16 1996?

17 A. Yes, unless they have done this with the team, yes.

18 Q. And the information contained in this declaration is the

19 result of your investigations?

20 A. It's a summary. It's quite succinct. It's just to

21 outline the situation.

22 Q. But this declaration is based on your knowledge of the

23 situation at that time, is that correct?

24 A. Yes, that's right.

25 Q. On the first page I'm looking at the third full

Page 3280

1 paragraph, the first sentence, which reads:

2 "Beginning in the latter part of May 1992 forces

3 consisting of Bosnian Muslims and Bosnian Croats ...".

4 Why did you choose to refer to the forces as

5 Bosnian Muslims and Bosnian Croats, knowing that there

6 was a TO and a MUP?

7 A. Why did I refer to Bosnian Muslims and Bosnian Croats?

8 That's the question?

9 Q. Instead of using the correct designation of TO and MUP,

10 which you knew existed?

11 A. Yes, yes, but this isn't wrong either. The TO, as

12 I told you earlier on, you had to make things more

13 distinct. You had to talk about the Konjic TO. For

14 example, if you look in Sarajevo, there you would have

15 had Serbs in the TO. So just to make clear here that

16 we are talking about Bosnian Muslims, etc. So I wanted

17 to make that clear. That's why I used these terms.

18 Q. Sir, we're talking about the Konjic municipality, are we

19 not, in this declaration?

20 A. Yes. So to make clear that there were Bosnian Muslims

21 and Bosnian Croats I used those terms.

22 Q. Have you ever heard of the HVO?

23 A. Yes, of course.

24 Q. What is the HVO?

25 A. HVO I believe it's an organisation that was made up of

Page 3281

1 Bosnian Croats.

2 Q. And did they exist in the municipality in the latter

3 part of May 1992?

4 A. Yes, they existed, I believe.

5 Q. So in writing a report for this Tribunal, why did you

6 use terminology which may not correctly reflect military

7 structures in the region of Konjic?

8 A. On the contrary, I think I used the right terms. I'm

9 not sure you know just what the HVO is.

10 Q. I asked you if you knew what it was.

11 A. Yes, I know what the HVO is. The HVO is not a military

12 force in the strict sense. There's also a political

13 side to it. So if you're going to refer to a military

14 structure with the term HVO, you've got it wrong.

15 Q. You were the author of this report and you chose to use

16 terminology which I put to you is incorrect?

17 A. I don't see what you say is wrong here. When I say it

18 is Bosnian Muslim and Bosnian Croat forces, to make

19 clear there weren't any Bosnian Serbs there, what's

20 wrong with that?

21 Q. It is incorrect, is it not? That's the problem.

22 A. But I fail to see what's wrong. There's forces there

23 made of up of Bosnian Muslims and Bosnian Croats.

24 I fail to see what's wrong.

25 Q. I put it to you it is a simplification of a more complex

Page 3282

1 situation. Wouldn't you agree?

2 A. Well, this war is an extremely complicated matter.

3 Neither you nor I are perhaps sufficiently qualified to

4 sum things up in just a few words and here in this

5 declaration I was trying to be very succinct, so I tried

6 to be as specific as possible referring to the people

7 involved.

8 Q. Let us back up just a second. What did you say the HVO

9 was?

10 A. That it's an organisation that consisted of the Bosnian

11 Croat population.

12 Q. Is it not correct to say that it's the military wing of

13 that organisation?

14 A. No, no, absolutely not. HVO is more than just

15 something military. Now a lot of people have, to

16 simplify, used HVO to refer to the military wing but at

17 the time the HVO had a President who was not a military

18 man.

19 Q. Is it not correct that the HDZ is the civilian branch?

20 A. Well, there again you've got it wrong. HDZ is the

21 political branch that was representing a part of the

22 Bosnian Croat population and not all the Croats.

23 Q. Is it not correct that the two legal entities at the

24 time in Bosnia were the TO and the MUP?

25 A. I really don't know what you mean by legal entities.

Page 3283

1 Q. The two constitutionally recognised entities?

2 A. They were among the entities recognised by the

3 constitution, but I think that's also true for the HVO,

4 because there have been some high level negotiations in

5 the Bosnian Republic.

6 Q. So what you're saying is that you're aware of some of

7 the complexities in the situation, yet you chose to

8 simplify for your superiors by using the expression

9 Bosnian Muslims and Bosnian Croats?

10 A. It's a simplification that is wholly consistent with

11 reality.

12 Q. Wasn't the reality of the situation complex?

13 MS McHENRY: Your Honour, I'm going to object to this

14 argument between defence counsel and the witness.

15 I think the facts and the different positions have been

16 made very clear and I object to any further discussion.

17 JUDGE KARIBI WHYTE: I think it's not necessary pursuing

18 this part of the argument.

19 MR. O'SULLIVAN: Thank you, your Honour. This declaration,

20 your declaration of 14th March 1996, was used in support

21 of the Prosecutor's request for provisional arrest, was

22 it not?

23 A. Yes, that's right.

24 Q. And that was the extraordinary measure under Rule 40 of

25 our rules for provisional arrest?

Page 3284

1 A. Yes.

2 Q. Do you know what Rule 40 states?

3 A. Well, by memory I think this relates to provisional

4 measures taken by the Prosecutor to secure the presence

5 of people who are suspects.

6 Q. Do you know the basis on which the Prosecutor relied on

7 Rule 40 in relation to Mr. Delalic?

8 A. Well, he must have referred to the notion of urgency.

9 Q. Sir, is there anything in your declaration that suggests

10 that there was a situation of urgency as regards

11 Mr. Delalic?

12 A. Yes, yes. The urgency was to prevent any flight or the

13 loss of documentation or pressure that might --

14 intimidation that might occur, because we want to be

15 sure that we would have sufficient evidence to go ahead

16 with an indictment.

17 Q. Could you show me where in your declaration you make

18 reference to this state of urgency?

19 A. I don't really know. I'd have to have a look at

20 this. I would have to have a French translation of

21 this, but I just --

22 JUDGE KARIBI WHYTE: Why are you asking him that?

23 MR. O'SULLIVAN: I did not hear you. Sorry.

24 JUDGE KARIBI WHYTE: What is the relevance of that

25 question? .

Page 3285

1 MR. O'SULLIVAN: The Rule 40 measures taken by the

2 Prosecutor was supported by this declaration of the --

3 JUDGE KARIBI WHYTE: That might not be the only document in

4 support of that declaration.

5 MR. O'SULLIVAN: That is correct. I believe he said there

6 was some mention of the urgency in his declaration.

7 I was wondering where it was.

8 JUDGE KARIBI WHYTE: The Rule is very clear on the basis on

9 which the application can be made.

10 MR. O'SULLIVAN: Sir, in early March 1996 did you know where

11 Mr. Delalic lived?

12 A. February 1996? I think we had had some information on

13 the basis of which we thought -- well, we were

14 hesitating between Germany and Austria at the time.

15 Q. And eventually you discovered he was living where?

16 A. Mr. Delalic, we discovered that he was living in Germany.

17 Q. Did your investigation show that Mr. Delalic was

18 registered as a foreigner in Germany?

19 A. I wasn't involved in the arrest in Germany, so I can't

20 answer that question.

21 Q. Well, my question wasn't about his arrest. My question

22 was did your investigations tell you that Mr. Delalic was

23 registered as a foreigner in Germany?

24 A. Well, I don't know if that was something that was

25 covered in our investigation, whether he was registered

Page 3286

1 there properly or not.

2 Q. So to your knowledge you were not informed that he was

3 registered as a foreigner in Germany. Is that what you

4 are saying?

5 JUDGE JAN: He didn't say that. He says he doesn't know.

6 Q. You do not know?

7 A. I didn't know whether he was correctly registered in

8 Germany or not.

9 Q. Do you know whether someone else investigated that?

10 A. No, I don't know.

11 Q. At no time yourself, even after or prior to his arrest,

12 you yourself never verified whether he was registered as

13 a foreigner? Is it correct to say that?

14 A. No, not quite. We did try to check to see if he was in

15 Germany. Let me repeat, though, I don't know at all

16 whether he was properly registered in Germany or not.

17 We just wanted to see whether he was in Germany.

18 Q. Are you saying there was no search done to see whether

19 he was registered? Is that what you are saying?

20 A. Well, there's some terms -- register? What do you

21 mean? Do you mean abiding with German legislation?

22 What do you mean?

23 Q. That is correct. A German citizen, a person in

24 Germany, a foreigner or not, is registered in the city

25 in which they live, in the federal state capital. Was

Page 3287

1 this search conducted as to Mr. Delalic?

2 MS McHENRY: I am going to object as to asked and answered

3 and relevancy.

4 MR. O'SULLIVAN: Your Honour, he has said yes or no or and

5 now he's not sure.

6 JUDGE KARIBI WHYTE: I think it is consistent that he

7 didn't know about it.

8 MR. O'SULLIVAN: No one ever informed you that he was or was

9 not registered; is that correct? None of your

10 investigators told you this?

11 A. I don't recall that specific detail.

12 Q. With the help of the usher I would like to show

13 Mr. Abribat a document, please.

14 MS. McHENRY: I renew my objection as to relevancy, your

15 Honour.

16 JUDGE KARIBI WHYTE: Do you know what the document is all

17 about?

18 MS McHENRY: I have a pretty good idea. You're right,

19 your Honour. Maybe I'll wait and see it and then

20 object. May the Prosecution see the document?

21 (Handed.) Your Honour, the Prosecution objects on

22 relevancy.

23 JUDGE JAN: What is this document?

24 MS McHENRY: I believe it is a document previously shown to

25 another witness about specific information about whether

Page 3288

1 or not the accused was or was not registered.

2 MR. O'SULLIVAN: May I ask --

3 JUDGE JAN: Is this a document prepared by the witness

4 himself?

5 MR. O'SULLIVAN: It is addressed to him. Sir, you see that

6 document in front of you, dated 6th March 1996?

7 A. Yes.

8 Q. It's from Sabine Manke to you?

9 A. Yes.

10 Q. You've seen this document before, haven't you?

11 A. Well, let me have a look at it and then I can tell you.

12 JUDGE KARIBI WHYTE: Actually, are you trying to refresh

13 his memory or you think --

14 MR. O'SULLIVAN: I am trying to refresh his memory.

15 Perhaps to save some time, sir, I'm looking at the first

16 paragraph, down four lines, the last word in that

17 line. I'll read it to you. It says:

18 "Delalic, however, was never entered in German

19 central registry of foreign citizens in February 1996".

20 Is there some reason why you would disregard the

21 memos from Sabine Manke?

22 MS McHENRY: Objection, your Honour.

23 JUDGE KARIBI WHYTE: What is the objection? Actually what

24 is the question, that he disregarded the --

25 MR. O'SULLIVAN: Yes. You have seen this memo before.

Page 3289

1 JUDGE KARIBI WHYTE: That he disregarded the memo. Did

2 he?

3 MR. O'SULLIVAN: That is what I am asking him, your

4 Honour.

5 JUDGE KARIBI WHYTE: You have concluded. You asked if

6 there was any reason why he disregarded. That's a

7 conclusion that he did.

8 MR. O'SULLIVAN: Did you see and disregard this memo from

9 Sabine Manke?

10 A. I don't remember this memo in particular, but the fourth

11 sentence you have referred to, "Mr. Delalic has not been

12 registered in Germany", that's what you're referring

13 to?

14 MR. O'SULLIVAN: Uh-huh.

15 A. And what is the oversight? What's ...

16 Q. When I asked you whether you knew whether he was

17 registered or not, you said you did not know or you

18 couldn't recall. I'm asking you here whether you have

19 seen this memo before and read it?

20 A. Yes.

21 MS McHENRY: I believe that has been asked and answered.

22 With respect to both questions the witness has said he's

23 not sure. He doesn't remember.

24 MR. O'SULLIVAN: You don't know whether you've ever seen

25 this before?

Page 3290

1 A. I don't recall quite frankly.

2 Q. Right. Sir, while you were the head of investigations

3 was it the policy of the OTP to have investigators

4 present during arrest procedures and in particular in

5 this case?

6 A. Well, Mucic and Delalic's arrest was a first for this

7 Tribunal, so you can't say that there was any procedural

8 what have you, but we had asked to be allowed to be

9 present at the place of arrest, yes, because this is

10 something that is quite common in all countries

11 throughout the world when the police ask for judicial

12 cooperation from the authorities of another country.

13 Q. Again with regard to Celebici, was it the Tribunal's

14 policy to provide written translations of indictments

15 and arrest warrants to the accused persons?

16 MS McHENRY: I am sorry. I don't understand the

17 question. Is the question did this happen in Celebici.

18 MR. O'SULLIVAN: In Celebici was it your policy to provide

19 written translations of indictments and arrest warrants

20 to the accused persons.

21 MS McHENRY: Your Honour, then I will object because

22 I believe it has already been established that at this

23 time there had been no indictment.

24 JUDGE KARIBI WHYTE: There were no accused persons in

25 Celebici, were there? They were all suspects at that

Page 3291

1 stage.

2 MR. O'SULLIVAN: In regards to arrest warrants then, was it

3 your policy to provide written translations of arrest

4 warrants?

5 MS McHENRY: Your Honour, I must object to that. I believe

6 the record reflects that there was no arrest warrant

7 issued by this Tribunal.

8 MR. O'SULLIVAN: All right. My final question for you,

9 sir: is it correct there was no country seeking the

10 extradition of Mr. Delalic, only this Tribunal?

11 A. I do not know at all.

12 Q. No further questions, your Honours.

13 JUDGE KARIBI WHYTE: Thank you very much. Yes, it's up to

14 you, Mr. Moran.

15 MR. MORAN: Thank you very much.

16 Cross-examination by Mr. Moran.

17 MR. MORAN: Good afternoon, sir. My name is Tom Moran and

18 I represent Hazim Delic in this case. I understand you

19 are Divisional Superintendent with the French police; is

20 that correct?

21 A. Yes, that's right.

22 Q. So your correct title is Superintendent so I use your

23 correct title. Is that fair enough?

24 A. That's fine.

25 Q. Superintendent, you have been a police officer for about

Page 3292

1 20 years; right?

2 A. Yes, that's right.

3 Q. In that 20 years you've testified a lot of times,

4 haven't you?

5 A. Yes, I've testified.

6 Q. So you're not unfamiliar with the process?

7 A. This is the first time I'm involved in this kind of

8 proceedings. The proceedings events are totally

9 different so it's fair.

10 Q. So to be fair with you, if I ask you a question and you

11 don't understand it, will you stop me and I'll rephrase

12 it?

13 A. Fine.

14 Q. I'll make a deal with you. I'll try to ask you a

15 direct question. Will you try to give me a direct

16 answer?

17 JUDGE KARIBI WHYTE: Do you want us to be parties to that

18 deal too?

19 MR. MORAN: Your Honour, if I can put my amicus curiae hat

20 on too, if I can make the same deal with the court. Can

21 we have that deal, Superintendent and include the court

22 in this?

23 A. Well, I'll answer all of your questions as best I can.

24 Q. In a direct manner. Some of them may just call for a

25 "yes" or "no." Can you just answer a "yes" or "no" yes

Page 3293

1 with a "yes" or "no"?

2 A. Well, in so far as the question is clear, I'll answer by

3 "yes" and by "no", yes.

4 Q. If it's not clear, you will stop me and ask me to

5 rephrase it, won't you?

6 A. Fine.

7 Q. Okay. Let me start off with this. On I believe it

8 was Professor O'Sullivan's cross-examination you were

9 talking about the military structure in Bosnian

10 Herzegovina, the BH army in 1992 -- 1991/92 time

11 frame. You said there was no rank structure, only

12 functions. What did you mean by that? Did you mean --

13 let me give you an example. Okay? At one point in my

14 life I was an army officer and I had a rank. I wore it

15 on my shoulders. I also had a function, a job

16 assignment. Was what you mean that someone may have

17 that job assignment but no rank to go with it? Is that

18 what you were saying?

19 A. What I was trying to say was there wasn't a hierarchy in

20 the Bosnian Army at the time like there wasn't

21 lieutenant, captain, general, etc, but there were people

22 who had command positions.

23 Q. That's what I'm getting at. Someone may be the

24 Commander of a unit -- pick a unit title, anything --

25 and yet he may not be called captain, lieutenant,

Page 3294

1 colonel or sergeant. Is that what your testimony was?

2 A. They were called "commander".

3 Q. Okay. So that was the only title there was in the

4 Bosnian Army at the time, commander; right?

5 A. Well, you shouldn't really talk about rank rather; just

6 a title, as it were.

7 Q. Okay. That was the only military title in the

8 Bosnia-Herzegovina army at the time we are talking

9 about, commander; is that right, is that correct, sir?

10 A. Yes, I believe so.

11 Q. Okay. Fine. Let's go on to another subject. Let me

12 talk to you a little bit about your investigation.

13 Because you're the chief investigator for the Tribunal

14 as it applied to this case, you're familiar with the

15 investigation, aren't you?

16 A. Yes, I think I'm familiar with the investigation.

17 Q. And isn't it true that the investigation was difficult

18 because of the reluctance of the parties to cooperate?

19 A. Yes, that's true. We didn't receive any cooperation

20 and we didn't get the cooperation we would have desired.

21 Q. And at some point in this investigation some

22 non-government organisations, NGOs, started aiding your

23 investigation, didn't they?

24 A. Well, taking it in chronological order, it's more us who

25 worked on the basis of reports drawn up by international

Page 3295

1 organisations or NGOs and on the basis of those reports

2 we tried to verify the facts that were written here.

3 The first report that we used was the Maisiski report.

4 Q. One of the associations you dealt with as the

5 Association of Detainees in Belgrade, wasn't it?

6 A. I don't remember exactly the title, but if that's what's

7 written down there, no doubt about it.

8 Q. What the Association of Detainees in Belgrade did was

9 provide written statements from witnesses, perhaps

10 people that were in the Celebici camp, in English,

11 signed by the witness, and sent them to you or some

12 other representative of the Office of the Prosecutor; is

13 that right?

14 A. Well, with regard to the origin of the first statements,

15 I'm not sure that they were from that association, but

16 the principle was that we'd received all sorts of

17 information referring to testimony or specific acts in

18 respect of which people had testified for whatever

19 organisation. On that basis we tried to get in direct

20 contact with these people to hear their testimony and

21 would have only used testimony that we heard ourselves.

22 Q. Okay. So you got from somebody in Belgrade statements

23 from witnesses, and those statements had the witnesses'

24 signature on the bottom of them; is that right? Let's

25 start with that. Let's take it one step at a time?

Page 3296

1 A. No, it wasn't from Belgrade that we obtained the first

2 testimony.

3 Q. Where was it?

4 A. It was an association which is not in Belgrade, but for

5 security reasons I don't know if I'm authorised to say

6 what it was, the name -- to say what its name was, but

7 it was not in Belgrade.

8 Q. Okay, from some place. The information you got

9 included statements from witnesses in writing with their

10 signatures on the bottom; isn't that right?

11 A. I'm not 100 per cent sure. I synthesised the

12 information that we had. I began with information

13 which, as I said, was found in the Maisiski report.

14 From that I tried to contact people who could put us in

15 contact with the victims and witnesses. Whether we

16 received copies of testimony from these people there can

17 be no doubt but that was not the basis of our

18 investigating work, which consisted of identifying the

19 victims and witnesses, to try to meet with them and then

20 to take testimony from them.

21 Q. Okay. Now let's try it again, Superintendent. Did

22 you or other representatives of the Office of the

23 Prosecutor get from someone outside of the Office of the

24 Prosecutor testimonies, statements, whatever of various

25 witnesses prior to the time you interviewed those

Page 3297

1 witnesses? Now I think that calls for a "yes" or "no"?

2 A. Well, we must have received testimonies, yes, but I do

3 not know specifically from what people.

4 Q. But it did happen; right?

5 A. That the Tribunal received a great deal of documents,

6 including testimonies, yes, of course.

7 Q. And if I were to tell you that there were about 50 or 60

8 people on the Prosecution witness list who were somehow

9 connected directly with the Celebici camp, you wouldn't

10 dispute that, would you?

11 A. The total number of people that we met with and spoke to

12 was much greater, of course, but that depended on the

13 conditions and the will of the people to testify or lack

14 of will to testify.

15 Q. Okay. Some of these people -- let me try it this way:

16 if I were to read out some random names from the

17 Prosecution witness list in a private session and

18 essentially just random, would you remember whether or

19 not you'd gotten testimonies, as you call it, or

20 statements from those witnesses from another source

21 other than your own investigators?

22 A. No. To that I can answer no, because my work method was

23 to meet with the people. I wanted to find out

24 identities. From that point onwards I could take the

25 statements. I could try to give you the names, but

Page 3298

1 that's not the way I worked.

2 Q. Okay. So on at least some of these people you talked

3 to before you went and talked to them, you had something

4 in writing from them about what they were going to talk

5 about?

6 A. No. Perhaps the Tribunal did have testimonies, but

7 I myself, I always refused to have testimonies before

8 I met the people. What I wanted was to find out their

9 identity and to go to a place where I could question

10 them and then take the statement.

11 Q. Prior to testifying today, did you talk to anyone in the

12 Office of the Prosecutor about what you were going to

13 testify to, and let me narrow that down just a little

14 bit; okay? Did you know that either late Friday or

15 early today the Prosecution filed a Prosecution response

16 to Mucic defence motion to exclude evidence? Did you

17 know anything about that?

18 A. No, not at all.

19 Q. Okay. Did you provide any facts to anyone on the staff

20 of the Office of the Prosecutor in the last two or three

21 weeks about the background of Mr. Mucic's arrest, that

22 kind of thing?

23 A. No, not at all. I don't remember it, not at all.

24 Over the past three weeks, no.

25 Q. Okay. You are familiar with the statement that

Page 3299

1 Mr. Mucic gave the Office of the Prosecutor, aren't you?

2 MS. McHENRY: Just because this came up with a prior witness

3 maybe I might suggest for clarification that the defence

4 counsel ask whether or not anyone from the Office of the

5 Prosecutor had asked him any questions about it.

6 I think there might be some confusion and so later on

7 there's no confusion or accusations, maybe I could ask

8 defence counsel to clarify the question.

9 MR. MORAN: Well, your Honour, I will ask that question at

10 the request of the Prosecutor, but I would kind of like

11 to do my own cross.

12 MS McHENRY: It's entirely up to the defence. I'm sorry

13 if I was giving unsolicited advice.

14 MR. MORAN: You talked to someone from the Prosecution

15 before you have testified today, didn't you?

16 A. In so far as I was asked to testify, that's all.

17 Q. Sure. You went over your testimony with someone from

18 the Office of the Prosecutor, the testimony you were

19 going to give today?

20 A. No. I was merely asked to come testify and I was

21 explained that my testimony had become necessary,

22 because there were changes, but I don't remember what

23 kind. I don't -- I have not been following this trial

24 at all since I left the Tribunal.

25 Q. So since you arrived back -- when did you arrive in The

Page 3300

1 Hague? Today or yesterday or?

2 A. Yesterday evening at 11 o'clock.

3 Q. And so you didn't talk to, say, Ms McHenry or any of the

4 prosecutors about what you were going to testify to

5 today? You just walked over to the Tribunal, went

6 through the security guards and sat down on the witness

7 stand?

8 A. No, it's not as simple as that, not even to get into

9 this Tribunal, but I did meet with Ms. McHenry.

10 Q. Okay. So you went over your testimony with Miss

11 McHenry before you got on here. That is all I'm trying

12 to get. Nothing wrong with that?

13 A. We have to be clear here. We have to understand one

14 another. I did not review my testimony. I was simply

15 told: "You're going to testify. It's going to take

16 place under these conditions", but no details of the

17 testimony were given.

18 Q. So she didn't sit there and say: "I'm going to ask you

19 something along these lines and what would be the answer

20 to that be?

21 A. No, they didn't tell me what my answer would be.

22 Q. I understand that but she didn't say something like:

23 "What would be your answer be to that question?", or

24 something along those lines?

25 A. No, she merely told me that I would be asked a certain

Page 3301

1 number of questions including by herself and then by the

2 defence attorneys and that I should try to remember all

3 the different elements of the investigation.

4 Q. Fair enough. You are familiar with Pavo Mucic's

5 statement?

6 A. I remember what I took. It was the first, the first.

7 Later on not so much.

8 Q. It kind of stuck in your mind because it was the first

9 one of these statements from a defendant that you'd

10 taken?

11 A. No. No. No. No. No. It didn't remain there in my

12 mind. I have taken hundreds of statements in my

13 professional life.

14 Q. I understand that and in 20 years as a police

15 investigator you have taken more statements than you

16 probably care to remember, but what I want to get at is

17 this: my client's name is mentioned all over that

18 statement, isn't it?

19 A. Yes, I must have referred to his status.

20 Q. Sure. Would it be possible to go through that

21 statement with, say, a black marker and cross out every

22 place my client -- every reference to my client?

23 A. I do not know. I'm not sure what it is you're asking

24 here.

25 Q. I'm asking if you could edit that statement in such a

Page 3302

1 way to remove all references to Hazim Delic?

2 A. References to Hazim Delic in Mr. Mucic's statement? Is

3 that what you mean?

4 Q. Yes. Can you edit them out?

5 A. Frankly I don't think that I had -- in the statement

6 that I took from Mr.. statement (sic) I had no occasion to

7 speak about Hazim Delic and I didn't have time to.

8 I if I did speak about him or mention his name, I don't

9 think I have could have done that very much because

10 I had to leave Vienna after the first interview and

11 unfortunately I was far from having asked him all the

12 questions I could have asked him.

13 Q. Let us try it again, Superintendent. Would it be

14 possible to take some kind of a black marker or

15 something and edit out of that statement in that

16 notebook sitting next to you -- and edit out all

17 references to Hazim Delic? . That is a "yes" or a

18 "no".

19 A. "Yes" or "no", as you say. If it involves only the

20 part that I participated in in the hearing, that is

21 one-quarter or one-fifth of the total statement, in my

22 opinion you are not going to find many references to

23 Mr. Hazim Delic.

24 Q. Let us try it one more time, Superintendent. Is it

25 possible to go through that statement, Pavo Mucic's

Page 3303

1 statement that is sitting in that -- transcript sitting

2 in that notebook right next to your left elbow and edit

3 out all references to Hazim Delic, and if there aren't

4 any, you don't edit any of them out and if there are a

5 whole lot of them -- can you do that? Is it physically

6 possible to do it?

7 A. I suppose physically it's possible to do it if there are

8 any.

9 Q. A couple of other quick questions and then I think we're

10 done. I don't -- do you have any specialised training

11 in the law beyond that given to police officers? Are

12 you a lawyer? That's --

13 A. I have a degree in civil law from the University of

14 Bordeaux. Then I studied at the National School for

15 Police.

16 Q. So you are admitted to practice law if the Republic of

17 France. If you decided you didn't want to be a police

18 officer tomorrow, you could be a lawyer, God for bid.

19 We've got enough lawyers already, judge. Too many of

20 us.

21 JUDGE JAN: There is plenty of room for more.

22 MR. MORAN: It's awful tough out there where I come from.

23 You could practice law tomorrow?

24 A. In France in principle advanced studies at the

25 university allow you to go through competitions. I had

Page 3304

1 the proper level for a Magistrates' position, but then

2 as the career would go forth, it would be very different

3 from that of a policeman.

4 Q. I understand but what I'm getting at is if you retired

5 from the police department tomorrow you could go into

6 the private practice of law. You could get a licence

7 to do that?

8 A. No. I have the proper diplomas in order to take the

9 competitions, but not because you have this diploma --

10 that does not mean you can enter the profession in

11 France. There are rules governing them. You have to

12 meet certain requirements in examinations, specifically

13 specialised training.

14 Q. Okay. Fine. Thank you very much. Your Honour,

15 I pass the witness. Thank you very much.

16 JUDGE KARIBI WHYTE: Thank you very much. Mr. Ackerman,

17 I think you want to start now?

18 MR. ACKERMAN: Your Honour, I have a comment and

19 announcement. During the cross-examination conducted

20 by Mr. Moran Ms. McHenry rose to make a suggestion. It

21 is my position, and I think I have stated it before,

22 that if during a cross-examination of a Prosecution

23 witness it becomes clear to the Prosecutor either that

24 the witness is not being truthful or that the witness

25 has misunderstood the question in such a way that

Page 3305

1 someone is being misled, that it is their obligation to

2 bring that to the attention of the court and counsel.

3 I would not like her to be disabused of that notion by

4 Mr. Moran's remarks, and that I still consider that to be

5 a prosecutorial obligation.

6 The announcement is that I have no questions.

7 Thank you.

8 JUDGE KARIBI WHYTE: Thank you very much. That's

9 excellent. I think you must have taken the hint, if I

10 can say that.

11 MS McHENRY: No questions for this witness in

12 re-examination.

13 JUDGE KARIBI WHYTE: I think that concludes this witness'

14 examination. He is accordingly discharged.

15 (Witness withdrew from court).

16 JUDGE KARIBI WHYTE: I do not think it will be necessary to

17 take any other witness today. So we will have to rise,

18 but before we do, Mr. Greaves had an ex parte motion

19 which we decided this morning. We hope to give a

20 considered ruling about it in due course. It will not

21 be a long time. We will try and give the position of

22 the Trial Chamber on what we said. Thank you very

23 much.

24 MR. ACKERMAN: Your Honour, I am assuming from what was told

25 to us on Friday that the Prosecution's next witness is

Page 3306

1 MR. d'Hooge. Is that still the case?

2 MS. McHENRY: That is correct. He will testify about the

3 circumstances with respect to Mr. Mucic, Mr. Delic and

4 Mr. Landzo's statements.

5 MR. ACKERMAN: That was my understanding. Thank you.

6 MS RESIDOVIC (in interpretation): Your Honours, I would

7 ask if the Prosecutor could, if not today, then tomorrow

8 morning tell us which other witnesses they intend to

9 call, because as things stand the two witnesses may be

10 through tomorrow, and we don't know who will be called

11 next.

12 JUDGE KARIBI WHYTE: I thought that was the last thing that

13 was just said.

14 MS. McHENRY: If it will assist, I thought Mr. -- I believe

15 Mr. Ostberg had said this Friday, but just so that

16 there's no confusion, it's the Prosecution's intention

17 after Mr. d'Hooge on Wednesday morning to have Captain

18 Gschwendt -- excuse my pronounciation -- of the Austrian

19 police and after him Mr. Moerbauer, also of the Austrian

20 police.

21 JUDGE KARIBI WHYTE: That is the list of witnesses you are

22 expecting within the week. The Trial Chamber will now

23 rise.

24 (5.25 pm)

25 (Hearing adjourned until 10.00 tomorrow morning)