1 Tuesday, 10th June 1997

2 (10.00 am)

3 Mr. Thomas Moerbauer (continued)

4 Cross-examination by Ms. Residovic (continued)

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

6 We are still on cross-examination. Can we have the

7 witness?

8 (Witness enters court)

9 (Interpreter enters court)

10 JUDGE KARIBI WHYTE: Remind the witness that he is still on

11 his oath.

12 THE REGISTRAR: I remind you that you are still under

13 oath.

14 A. (in interpretation): Yes.

15 JUDGE KARIBI WHYTE: Ms. Residovic, you can continue your

16 cross-examination.

17 MS RESIDOVIC (in interpretation): Good morning, your

18 Honours. Thank you. Good morning, Mr. Moerbauer.

19 Mr. Moerbauer, yesterday before we adjourned you answered

20 that the things that you received or reviewed were never

21 listed by you officially, nor was Mr. Delalic present

22 when making such a list, as we know that he was arrested

23 in Munich, nor was his defence counsel or any other

24 authorised representative present. Do you remember

25 that?

1 A. Yes, I do remember that.

2 MR. TURONE: I beg your pardon. I would object to this way

3 of wording, because there was a moment when he listed

4 and described everything.

5 JUDGE KARIBI WHYTE: The question was at the time he did

6 this list the defendant was not there and his counsel

7 wasn't there. That is the question.

8 MR. TURONE: That's okay. All right. So explained it's

9 good for us. Thank you.

10 MS RESIDOVIC (in interpretation): Mr. Moerbauer, did you

11 put some kind of a mark on each paper that you held by

12 which you could recognise that paper wherever you were

13 to see it or at some other time?

14 A. Each paper that was translated and that was deemed

15 relevant to the case was referenced. I put a sticker

16 on it with the relevant number.

17 Q. Mr. Moerbauer, your last report on the review of

18 documentation was compiled by you on 22nd April; is that

19 correct?

20 A. So far as I can recall, that is correct, yes.

21 Q. This entire material, together with a letter, was handed

22 over to the court on 30th April; is that correct?

23 A. As regards the specific date when it went to the court,

24 I'm not familiar with it, because we have a department

25 within the police headquarters that deals with that

1 matter, and they are the police would transfer it, but

2 when it comes to the search and the arrest warrants and

3 the documents relevant thereto, they were provided

4 earlier to the court. So this had to do with the

5 objects that were seized and in regard to which the

6 reports were drawn up, that is to say the videotapes and

7 the documents, and the court received those reports at

8 the end of the month of April.

9 Q. Thank you. In addition to those reports in which you

10 conveyed some of your views and knowledge regarding the

11 objects you had reviewed and which allegedly originate

12 from the places which were searched, did you hand over

13 any other specification of the documents which would

14 list each document, its name, place and time, where it

15 was found or seized or, rather, the place and time when

16 you seized it?

17 A. Now in the interim an interim report was prepared.

18 That was in mid-April, early April. That was sent to

19 the court. That concerned a document that contained a

20 judgment by a Bosnian military court. Now with regard

21 to the documents that said they were referenced and on

22 the basis of the index of the analysis report --

23 Q. I ask you, Mr. Moerbauer, could you please answer my

24 question? In addition to those reports contained in the

25 file and which serve to refresh your memory, did you

1 draw up any kind of special list containing just the

2 names of the documents and the way in which you gained

3 possession of those documents?

4 A. Now in drawing up the reports with the analysis the

5 judge could determine where the objects had been seized

6 and to know where the videotapes and the relevant

7 documents came from. So that was made clear in the

8 reports.

9 Q. Mr. Moerbauer, did every page have an index number?

10 A. Only the relevant documents that were also translated.

11 They were given a number. Documents that were not

12 deemed relevant were not referenced and also that was

13 the case of ID papers. They weren't given any

14 reference. In the various files there were on occasion

15 copies of documents that were also in other files. So

16 we didn't reference those in addition or translate them

17 a second time.

18 JUDGE JAN: Just a minute. The indexing was done after

19 you started viewing the documents, that is 20th March.

20 MR. ACKERMAN: Your Honours, there's an error in the

21 transcript, which I think may affect things and I would

22 like to point it out. It's page 4, line 22. The

23 answer says: "Now in drawing". I think what he said

24 was: "No. In drawing ..." I think his answer was

25 "No".

1 A. It was a report of 22nd April 1996 regarding the search,

2 Koppstrasse 14 and Mucic Zdravko. It says analysis.

3 That is a report. I1-12, that relates to files,

4 folders with documents, Zdravko Mucic and Inda-Bau.

5 MS RESIDOVIC (in interpretation): Mr. Moerbauer --

6 MR. TURONE: Excuse me. May I interrupt for a moment about

7 the assertion done by Mr. Ackerman? There is the

8 possibility that something confusing might be a reason

9 you might ask again the question and clarify that point,

10 which is not clear to me, because the transcript is not

11 right on the video, the part Mr. Ackerman was pointing

12 out.

13 JUDGE JAN: The answer to my question has not yet come.

14 You started indexing the documents after 20th March.

15 That's when you started viewing them, or was it

16 earlier?

17 MS RESIDOVIC (in interpretation): I apologise. The

18 witness said yesterday that he started to work with the

19 interpreter on the 22nd, a Friday, to review the

20 documents.

21 JUDGE JAN: 22nd March.

22 MS RESIDOVIC (in interpretation): And then he indexed each

23 he reviewed. That was the witness's answer yesterday?

24 A. The videotapes that were seized at Zdravko Mucic were

25 indexed on the same day by colleague Panzer and they

1 were given as references M1A through D. Now the tapes

2 from Inda-Bau and Taubergasse 15/14, the ones coming

3 from there, they were indexed starting on the following

4 day. Now the folders, the documents seized from

5 Inda-Bau, were indexed on 18th -- that is the same day

6 -- in the course of copying. They were given the

7 letter "I" and the individual documents that were in the

8 folders were given, starting from 22nd March, the

9 individual documents, as I gave them to the interpreter,

10 were given a further number. Say it comes out of the

11 first folder, that would be I1. Then the first

12 document in that folder would get another number, number

13 1. So that document would bear the reference I1/1.

14 Q. Mr. Moerbauer, to make it clear to all of us, you said

15 that as of the following day Mr. Panzer undertook to

16 identify the videotapes which were allegedly taken from

17 Mr. Delalic's apartment and from the Inda-Bau company; is

18 that correct?

19 A. Yes.

20 Q. Is it correct that this kind of binder had the index "I"

21 without an indication how many documents it contained

22 and which documents it contained before you started to

23 review it together with an interpreter?

24 A. The folders were given the initial letter "I" the same

25 day. I said depending where they come from, talking

1 about Taubergasse 15/14, that was given "D". That

2 happened on the same day without the interpreter. The

3 individual documents were not referenced that same day.

4 Q. Thank you. Within these folders, for instance folder

5 I1, did you individually index the papers in the period

6 from 22nd March to 2nd April?

7 A. I would hand an individual document to the interpreter,

8 and at that point in time it was given the reference

9 number. So it was as and when these documents were

10 translated to me.

11 Q. Did the numbers placed on the documents remain there

12 permanently?

13 A. They were transferred to the court with those reference

14 numbers.

15 Q. Mr. Moerbauer, the videotapes, you can recognise them

16 only by the indication I or D attached to them; is that

17 correct?

18 A. Yes, that is correct.

19 Q. Is it correct that you know that that indication

20 regarding the tapes from Inda-Bau and Zejnil Delalic,

21 that that number was placed there by your colleague,

22 Panzer?

23 A. Yes, that is correct.

24 Q. With respect to these videotapes and this system of

25 referencing, you also know that Mr. Panzer was not the

1 person who carried out the search in Inda-Bau?

2 A. Yes, that is correct.

3 Q. Is it correct that Mr. Navrat, who was the person doing

4 the research, brought the videotapes in an open box to

5 room 133 and handed them over to you -- 331, sorry --

6 Room 331?

7 A. Yes, that is correct.

8 Q. Is it correct that Mr. Panzer spent more time that same

9 day preparing -- working on the statement of Mr. Mucic?

10 A. Mr. Panzer at the time Mucic was being questioned was

11 present in the room.

12 Q. Is it correct that Mr. Navrat did not give any objects to

13 Mr. Panzer?

14 A. Yes, that is correct.

15 Q. Is it correct that Mr. Navrat gave all the objects --

16 brought all the objects found allegedly in Inda-Bau in

17 an open cardboard box?

18 A. Yes, that is correct.

19 Q. Is it also correct, Mr. Moerbauer, that on that day in

20 Room 331 you did not at any point in time seal this open

21 box?

22 A. The box, it was not taped closed, but it was a cardboard

23 box that had a top. So it was closed. Flaps were

24 intertwined, as it were, and it was indicated where the

25 objects came from?

1 Q. Yes, but there is no doubt that each one of you or

2 anybody else, if necessary, could have opened the lid of

3 the box?

4 A. Yes, the box would have been easy to open.

5 Q. You said, so would you please confirm if I understood

6 you well, that Mr. Panzer, who did not participate in the

7 search of Inda-Bau, established a surplus of three tapes

8 in this box?

9 A. In analysing the video cassettes we ascertained that

10 there were more video cassettes, and when it comes to

11 the video cassettes seized, Taubergasse 15/14, that

12 error was noted by my colleagues, by the colleagues who

13 carried out the search, and that mistake was corrected,

14 reported, shall we say, on the same day.

15 Q. Is it correct that this error from Inda-Bau was

16 established by Mr. Panzer?

17 A. Who discovered the error I really cannot say.

18 Q. So it is not correct? Yesterday you did not tell the

19 truth when you confirmed that this error was confirmed

20 by Mr. Panzer?

21 A. The error was notified via a report by Mr. Panzer. Now,

22 as to whether in the interim there were notes entered

23 into the record is something I cannot say.

24 Q. Mr. Moerbauer, you cannot say even today the exact names

25 of the videotapes that appeared additionally?

1 A. As far as I know, the number of videos was consistent

2 with that given to the court.

3 Q. I apologise, but you did not answer my question. Even

4 today in this court you are unable to indicate the names

5 of the videotapes which appeared additionally in between

6 the record made on the spot and the report that you

7 yourself compiled later?

8 A. As far as the Taubergasse 15, Door 14 goes, 28

9 videotapes were seized there.

10 Q. Inda-Bau?

11 A. At Inda-Bau 51 according to the record were found there

12 and, in fact, we found that there were really 54 videos

13 there. Now in the original record we didn't refer to

14 the individual videotapes by name.

15 Q. But you cannot give us the name?

16 JUDGE JAN: How can you give the name? His position was

17 originally in the box there were 54, although they were

18 counted as 51. So how can he separate those possibly?

19 MS RESIDOVIC (in interpretation): I can simply say that he

20 cannot tell us the names, but it is up to the witness to

21 answer the questions. Thank you, your Honours for

22 helping me. Mr. Moerbauer, I should like to ask you, if

23 you can, to tell me is it true that in your record of

24 22nd April 1996 and which as a part of your memory is

25 found in folder 1, which you tried to identify

1 yesterday, in that report under point D1 -- D5, is it

2 stated that this is a binder called binder of receipts

3 with the names and amounts of donations?

4 A. Are you referring to the report of 22nd April 1996

5 regarding Taubergasse 15, Door 14; is that right?

6 Q. Yes, under the index D5.

7 A. It says here a red ledger with names and amounts

8 listed. As far as I can recall, these were donations

9 that went to Bosnia.

10 Q. Thank you. Is it also indicated under D6 that there

11 was an indoor football tournament. I'm referring to the

12 same report. I'm just asking you to remind yourself.

13 I'm not asking you to identify it. I'm just asking you

14 whether there is a reference to an indoor football

15 tournament?

16 A. I'm not aware of that.

17 Q. Are you familiar that in the same report D23 was an

18 evening of folk songs?

19 A. I know that some videotapes did have a football

20 tournament on them. That was the annual tournament in

21 Vienna, I remember that there were some demonstrations

22 on videos and, in fact, those things were on some of the

23 tapes, yes.

24 Q. Mr. Moerbauer, did you also view the cassettes where

25 there are some feature films?

1 A. The tapes where there were feature films were viewed,

2 yes.

3 Q. Also with broadcasts that are comedy programmes?

4 A. Yes. That's right, but one might add that sometimes

5 there's footage of television programmes.

6 Q. Thank you. You've answered my question. All such

7 videotapes which I only mentioned by way of example, did

8 you list all these videotapes and turn them over to the

9 State Prosecutor of Austria?

10 A. The list of the videotapes was sent to the court.

11 Q. Was there a separate list of these videotapes, such as

12 I have just mentioned?

13 A. No separate list was drawn up in this respect.

14 Q. Did you return the video cassette that had nothing to do

15 with what the court order called for? Did you return

16 such video cassettes either to their owner or to his

17 authorised representative?

18 A. The objects had been seized on the basis of a court

19 warrant and so as far as the seized objects go, they can

20 only be handed over by the court.

21 Q. Mr. Moerbauer, I am here asking the questions and you are

22 here to respond, so we're not conducting a discussion

23 here, but in the court order it states -- it says that

24 only the tapes referring to the torture of prisoners and

25 war crimes in BH are pertinent ones, and you will agree

1 with me that the ones that contain folk songs are not

2 relevant?

3 A. The videotapes which I seized in the apartment of

4 Zdravko Mucic contained this. All of the other

5 videotapes that were seized --

6 MR. TURONE: Excuse me, Mr. Residovic. I would like you to

7 let the witness finish his answer before interrupting

8 him, please. Thank you.

9 MS RESIDOVIC (in interpretation): Mr. Turone, please, I

10 would like not to be interrupted and as for Mr. Zdravko

11 Mucic, he has his own counsel, and they will ask the

12 relevant questions in that regard.

13 May I proceed, your Honours?

14 JUDGE KARIBI WHYTE: Yes, you can.

15 MS RESIDOVIC (in interpretation): Thank you.

16 Mr. Moerbauer out of 100 pieces of paper, documents that

17 you seized from the Inda-Bau company premises, through

18 your memory and your notes you pointed to the documents

19 that you had in your possession between 22nd March and

20 2nd April. Please can you tell me how many documents

21 were contained in I1?

22 A. As regards the exact number, I'm afraid I can't tell you

23 that. The list of the documents that were translated

24 is stated in the analysis report, but actually there

25 were considerably more documents in there than that,

1 because some of them were not translated, and some of

2 them were not deemed relevant.

3 Q. Mr. Moerbauer, if we could just repeat something that you

4 had said yesterday, you do not speak Serbo-Croatian or

5 Croatian-Serbian or, as it is called today

6 Croatian/Serbian-Bosnian language; is that correct?

7 A. Yes, that is correct.

8 Q. Based on the language that a certain document was

9 written, you are unable to recognise it on that basis;

10 is that correct?

11 A. Yes, that is correct, but we're talking also about

12 documents in German.

13 Q. Thank you. Thank you. You've answered the

14 question. Mr. Moerbauer, you can only determine the --

15 you can only recognise the documents that have been

16 written in German language; is that correct?

17 A. With regard to the contents of the documents, I can read

18 the documents in German and I can compare with the

19 German documents. You can see on the basis of the

20 analysis report what the contents of the documents

21 was. Yes, that I can determine.

22 Q. Mr. Moerbauer, during your training you had no special

23 education in graphology; is that correct?

24 A. No, I was not given that kind of training.

25 Q. In other words, you cannot recognise the handwriting of

1 a certain individual based on your expert knowledge?

2 A. That is correct.

3 Q. At no time during your analysis did you submit the

4 documents to the graphologic test, in other words

5 documents that were in certain individuals' handwriting?

6 A. I never proceeded to analysis and did not ask for any

7 graphological analysis.

8 Q. At no time did you ask for a graphological analysis of

9 the signatures of the documents that you were analysing?

10 A. I just said that no analysis was carried out.

11 Q. But, Mr. Moerbauer, you testified before this Trial

12 Chamber that the letter that was written allegedly by

13 Mr. Zejnil Delalic was indeed written by him?

14 A. I'm afraid I don't know which letter you mean.

15 Q. By recognising certain documents that you allegedly

16 analysed, you yesterday stated that it was a letter that

17 Mr. Delalic sent, for instance, to another person; is

18 that correct?

19 A. If you mean the letter that begins: "Dear Edina", now

20 that document, that stems from folder D4. I can tell

21 you that much.

22 Q. But you do not know who wrote this letter; is that

23 correct?

24 A. As far as I can recall, that letter was signed "Z

25 Delalic" or "Zejnil Delalic".

1 Q. You personally cannot testify, based on your knowledge,

2 that is lack of graphological knowledge, who the author

3 of this letter is?

4 MR. TURONE: Objection, your Honour. Nobody needs

5 particular to be a handwriting expert to make some

6 conclusions on handwriting anyway. Thank you.

7 JUDGE JAN: But what is the basis for saying that this

8 letter is written by Delalic?

9 MR. TURONE: I was saying something about the signatures.

10 JUDGE JAN: Does he know the signatures? How can he say

11 that? All he can say is that this letter was found

12 among the folders. He doesn't know who wrote that

13 letter and whether that letter bears really the

14 signatures of Delalic. How can he say that? All he

15 can say is that the letter was found. It's in a

16 language which he doesn't understand and cannot read.

17 THE INTERPRETER: Microphone, please.

18 JUDGE JAN: It is a language he doesn't understand and he

19 cannot read. He has not seen Delalic writing

20 letters. All he can say is this letter was found in

21 the folder and nothing more than that.

22 MR. TURONE: Your Honour, he said this was a letter which

23 appeared to come from Delalic. This is what --

24 probably he cannot say anything more about that.

25 JUDGE JAN: All that he can say is this letter was found in

1 the folder, nothing more than that.

2 JUDGE KARIBI WHYTE: In any event, I'm not sure you are

3 proving letters now. You are not proving any letters,

4 whether anything was written or not.

5 JUDGE JAN: She's challenging the report of the officer

6 that this letter was written by Delalic.

7 JUDGE KARIBI WHYTE: Ms. Residovic, you carry on with your

8 questions.

9 MS RESIDOVIC (in interpretation): Your Honour, I contest

10 that this witness can recognise anything. I am going

11 to submit a file. It is a file, folder that the

12 witness had yesterday with him. I don't know what

13 number it is.

14 JUDGE KARIBI WHYTE: None of the documents is in

15 evidence. None of them is in evidence. I don't know

16 what you are arguing about, because there's no need.

17 MS RESIDOVIC (in interpretation): Your Honours, I would

18 like to request that the witness take another look at

19 the documents which he identified yesterday. If this

20 is not the proper way to do it, I will request that the

21 witness be shown this document by way of the usher, and

22 the document can also be shown to the Prosecution.

23 (Handed to Prosecution). (Handed to witness). No

24 identification is needed. Can this document please

25 just be shown to the witness, so that he can recognise

1 it if he can?

2 A. Yes, this is the document --

3 Q. Excuse me. I will ask the question, please. So if

4 you can just please answer my question. Number

5 004731083 is not the number that you put there while you

6 reviewed this document; is that correct?

7 A. Yes, that is correct.

8 Q. Is it correct that this document is written in the

9 Bosnian language?

10 A. That is correct.

11 Q. Is it correct that this document was not submitted to a

12 graphological analysis?

13 A. That is correct.

14 Q. Is it correct, Mr. Moerbauer, that on this piece of paper

15 there is not a single mark that was put there in your

16 handwriting?

17 A. Yes, that is correct.

18 Q. Is it correct that this piece of paper in no way -- that

19 you cannot recognise this document as your own in any

20 way if you only look at this piece of paper?

21 A. I can recall that this document was among the documents.

22 Q. However, this document contains no mark of any place or

23 time; is that correct?

24 A. That is correct.

25 Q. There are no markings on this document about the chain

1 of custody between your colleague Navrat and yourself.

2 Is there such a marking there?

3 THE INTERPRETER: Sorry. May I kindly ask the question to

4 be repeated, because my client wanted to give an answer

5 before him, so I did not quite hear all the translation

6 into English. Terribly sorry.

7 JUDGE KARIBI WHYTE: Thank you very much. Can you kindly

8 repeat the question?

9 MS RESIDOVIC (in interpretation): Are there any markings

10 on this piece of paper which would show where this

11 document came from?

12 A. No, there's not any marking on that document.

13 MR. TURONE: I beg your pardon. May I interrupt? I would

14 like for the record to make clear that we are talking of

15 the document marked yesterday with the number 113, and I

16 would request, if possible, the witness be provided with

17 the original of this document. Is that the original?

18 Okay. Thank you.

19 MS RESIDOVIC (in interpretation): I had asked for the

20 original. Mr. Moerbauer, is there any mark on this

21 document whereby it can be indicated that you received

22 this document from your colleague, Navrat?

23 A. There is no marking on this document.

24 Q. Thank you, Mr. Moerbauer. May I show you now the next

25 document, which you also viewed yesterday, and since the

1 Prosecution is asking that the document you shown, these

2 documents from his file, folder, I would request that it

3 be done that way.

4 THE REGISTRAR: This is document 117.

5 THE INTERPRETER: If the document could be placed under the

6 ELMO. Thank you. (Handed to Prosecution). (Handed

7 to witness).

8 MS RESIDOVIC (in interpretation): Mr. Moerbauer, the number

9 on this document is 00473044 is not the number that you

10 entered; is that correct?

11 A. That is not the number I put on.

12 Q. This number was not on this document at any time while

13 it was in the police station in Vienna?

14 A. As far as I can recall, that number was not there.

15 Q. No person put this number on this document in your

16 presence; correct?

17 A. That is correct, yes.

18 Q. This document contains no signature; is that correct?

19 A. That is correct, yes.

20 Q. This document was not submitted for graphological

21 analysis?

22 A. On the part of the Federal Police Department in Vienna,

23 it was not.

24 Q. This document has no markings -- this document has no

25 markings making it originate either from the apartment

1 or from the Inda-Bau company in Germany; is that

2 correct?

3 A. Yes, that is correct.

4 Q. This document is not marked in such a way that it would

5 be clear from it that you received it from Mr. Navrat; is

6 that correct?

7 A. There's no such mark.

8 Q. Thank you. Could the witness please be shown this

9 document?

10 THE REGISTRAR: 121 is the number.

11 MS RESIDOVIC (in interpretation): This number, 0047109,

12 was not written by you, nor was it written in your

13 presence; is that correct?

14 A. Yes, that is correct.

15 Q. This document was not submitted to graphological expert

16 analysis, the document or the signature it bears?

17 A. That is correct.

18 Q. On this document, too, there is no indication to show

19 where the document comes from; is that correct?

20 A. Yes, that is correct.

21 Q. On this document, too, there is no indication confirming

22 that you received this paper from your colleague,

23 Navrat; is that correct?

24 A. Yes, that is correct.

25 Q. Thank you. Will the witness be shown the next

1 document, please?

2 MR. TURONE: May I object, your Honour?

3 JUDGE KARIBI WHYTE: Yes. Let's hear your objection.

4 MR. TURONE: This witness has answered already several

5 times. He has explained in detail the procedure, by

6 what manner he could determine the source of a

7 particular document. That includes referring to his

8 report, to the great report which was marked 104

9 yesterday. It is clear that he cannot tell from a

10 document itself the source of a document. Also I would

11 add that no documents were submitted for handwriting

12 analysis. Unnecessary and it should be in our opinion

13 a waste of time to follow with this line of questions

14 and procedure for each one of the documents which were

15 recognised by the witness as having been received by

16 Mr. Navrat yesterday, and which he recognised using his

17 report as an aide-memoire. Thank you, your Honour.

18 JUDGE KARIBI WHYTE: Mr. Turone, do you know why this line

19 of questioning is being pursued?

20 MR. TURONE: This is my objection, your Honour. After that

21 I defer to you, of course.

22 JUDGE KARIBI WHYTE: If you do know what line of

23 questioning, then I'll know what to say. Now,

24 Ms. Residovic, let's hear your reaction, so that we know

25 exactly why you're pursuing this line of questioning.

1 MS RESIDOVIC (in interpretation): Your Honours, the

2 witness confirmed in this courtroom that each document

3 he reviewed and analysed had a number. I have shown

4 the witness several documents with no indication

5 recognisable by the witness or any third party. So I

6 can put to the witness a more general question.

7 On all the documents that you saw yesterday and

8 which was submitted to you by the Prosecution, do they

9 carry numbers which were not written by you, nor were

10 they put there in your presence? This will facilitate

11 the job for all of us, I hope.

12 JUDGE KARIBI WHYTE: What does it actually facilitate,

13 because you are not pursuing any particular thing I

14 see. He is not saying these documents as having been

15 got up by him. He's not doing that. He hasn't owned

16 up that he was handed these documents. Are you not

17 suggesting that he should be telling the truth?

18 MS RESIDOVIC (in interpretation): Your Honours, the

19 witness said that he had marked all the documents he

20 received, and passed them on to the court and the

21 Prosecution with those markings. So far he has not

22 recognised a single one of those markings.

23 JUDGE KARIBI WHYTE: Your argument is that he made no

24 markings on them.

25 JUDGE JAN: Only on the folders, not on the documents.

1 MS RESIDOVIC (in interpretation): I'm showing the witness

2 documents that he looked at yesterday and of which he

3 said in the period from 22nd to 2nd he had marked.

4 However, not one of these documents has any marking

5 which would show that those documents were in the hands

6 of this witness, nor is there an indication on the line

7 of custody through which these documents reached the

8 witness.

9 JUDGE KARIBI WHYTE: If that is the line you are pursuing

10 to discredit him for having ever examined the documents,

11 then you might follow that, pursue it.

12 MS RESIDOVIC (in interpretation): Mr. Moerbauer, please,

13 the documents that were shown to you bear numbers that

14 start with 00 and then other numbers, as I have read out

15 to you. Is it true that not one of those numbers was

16 put there by you, nor in your presence?

17 A. As far as I can recall, the stamps, a number, was not

18 put there by me but I did recognise one document with

19 the original sticker that I have put on it. I saw that

20 yesterday on a document. I think it was the number 10.

21 JUDGE KARIBI WHYTE: Excuse me. Now apart from your not

22 putting any of the numbers which have been read out, did

23 you put your own identification marks on those

24 documents, which makes you recognise them whenever you

25 see them?

1 A. No. Talking with the Prosecution attorneys I had

2 learned that there was their own numbered system that

3 when identifying these documents I'd asked that my index

4 be used. On my index I put down what the Prosecutor's

5 office was using, and that number was checked by me to

6 see whether it was consistent with the number I had put

7 on there, and then I checked that with the analysis

8 report. So for me it's quite clear what document is

9 involved.

10 JUDGE KARIBI WHYTE: I think you are going about it in a

11 round about way. Now when you were selecting the

12 documents, counsel is trying to find out whether you put

13 your own marks on them.

14 MS RESIDOVIC (in interpretation): Rather, the documents

15 I've shown you and that are before the court at this

16 moment?

17 A. With regard to my numbers and who removed them, I can't

18 say. It was just on one document that I spotted my

19 original reference.

20 Q. Would you please show me that document and that

21 reference?

22 JUDGE KARIBI WHYTE: Now is it your evidence that initially

23 you put marks on them but these marks were subsequently

24 removed?

25 A. The markings have been removed, that's right.

1 MS RESIDOVIC (in interpretation): So the only document

2 shown to you is the document you've now shown, on which

3 you have recognised your mark; is that correct?

4 A. That is one document that caught my eye, because of that

5 sticker with the reference. There may be others, but

6 that was just one I happened to spot, shall we say.

7 Q. Mr. Moerbauer, you are claiming that somebody removed the

8 marks you put on the documents. You are claiming that

9 somebody removed the marks?

10 A. That's right, but in the English translation the

11 original reference number is referred to.

12 Q. Mr. Moerbauer, you didn't find anywhere the documents in

13 English; is that true?

14 THE INTERPRETER: A technical problem, your Honour. The

15 folder was lying on my channel so my channel was

16 switched on to the wrong number. I could not hear the

17 translation into English.

18 JUDGE KARIBI WHYTE: Kindly repeat the question so that she

19 can translate.

20 MS RESIDOVIC (in interpretation): In the course of the

21 search, as far as you know, nowhere were documents in

22 English found?

23 A. As far as I can recall, there were no documents in

24 English.

25 Q. Mr. Moerbauer, in addition to the fact that your marks do

1 not exist on the documents, is it also true that there

2 is no mark on any of the documents shown to you during

3 the hearing showing where that document comes from?

4 A. The individual documents had, except for this exception

5 -- they did not have any of my references. So none of

6 the documents had my references.

7 JUDGE KARIBI WHYTE: I hope you understood the question.

8 There were no marks on those documents indicating the

9 source of such documents, where they come from?

10 A. Now when it comes to recognising the individual

11 documents, I used the index, and on the basis of the

12 index I can readily ascertain where the individual

13 documents were seized, and what their contents are.

14 That said, with this exception, none of the other

15 documents bear the references I put on them.

16 MS RESIDOVIC: Will you please give me a precise answer

17 once again to this question? Did you see on any of the

18 documents shown to you the indication Inda-Bau, the

19 apartment of Mr. Zejnil Delalic, his office in Munich, or

20 any other such indication to show where the document

21 comes from?

22 A. Such information and indications does not appear on the

23 documents.

24 Q. On any of the documents shown to you yesterday or today

25 was there an indication showing that this was a document

1 received by you from your colleagues, Navrat?

2 A. The only indication is on the form where I can see the

3 reference number I put there. Otherwise the only means

4 of identification is using the index, and that's what I

5 did. I used that index in identifying the documents.

6 Q. All the documents shown to you yesterday and today are

7 in Serbo-Croatian or Croato-Serbian?

8 A. As far as I can recall, that is correct.

9 Q. And all these documents at this point in time are not in

10 a binder that was in that cardboard box?

11 A. That is correct.

12 Q. Thank you. Thank you, Mr. Moerbauer. Therefore, you

13 have been shown some 40 odd documents from the 1091 that

14 were allegedly taken from the premises of Mr. Delalic's

15 and more than 1700 that were allegedly seized in Munich,

16 and with the exception of one you did not see on any the

17 mark that you yourself placed on it; is that correct?

18 A. On the basis of my analysis, it's not 1700 documents.

19 It's 12 binders and the individual binders were

20 numbered. The various pages were numbered, as it

21 were. I recognised the documents I was presented with

22 and could say what binder they came from.

23 Q. Finally, Mr. Moerbauer, I should like to ask you to look

24 at a number of documents with the help of the usher.

25 They can also be shown to the Prosecution. I should

1 like to ask you whether, among these documents, you

2 recognise documents which could perhaps belong to

3 Mr. Delalic, which were seized in Inda-Bau or in

4 Mr. Delalic's apartment, or which do not belong to those

5 premises at all. The documents are simply being shown

6 as a means of refreshing the witness' memory and not for

7 any other purpose. They are not in evidence at all.

8 They have not been offered. (Handed to Prosecution).

9 MR. TURONE: May we ask -- kindly ask the defence lawyers to

10 explain where do these papers come from and which is the

11 reason for which she wants to show these documents to

12 the witness in case they should be part of the 191

13 documents she's been talking about. We think that

14 anyway the witness should be given time to consult his

15 papers, his files, because no policeman at all could on

16 the spot immediately recognise every single other

17 document which was not dealt with as relevant in this

18 case in these very days. Thank you.

19 MS RESIDOVIC (in interpretation): The witness has

20 testified under oath that he put his mark on any

21 document he looked at. So I'm asking the witness to

22 look at these five documents to see whether there are

23 any marks, and four out of those five documents was

24 received by the defence from the Prosecution.

25 MR. TURONE: Anyway, as I said already, if these documents

1 are described in the report, the witness has to be given

2 the possibility to consult the report. Otherwise if

3 they're not in the report he has to be allowed to go

4 back to Vienna and consult all the possible --

5 JUDGE KARIBI WHYTE: Kindly show the document to the

6 witness. Let him know whether he could ...

7 MS RESIDOVIC (in interpretation): Just asking the witness

8 to say whether on any one of these documents there is a

9 mark that he put on them and by which he can recognise

10 the document.

11 A. With regard to any marking I might have put there, there

12 isn't any such. This document is one I do not

13 remember. Using my index, I could ascertain with

14 regard to these documents -- I could tell you how they

15 are referred to and what binders they were in. So if

16 you would give me leave to do that ...

17 Q. Thank you. Thank you. It's not necessary. Simply

18 on any -- you did not recognise your mark on any one of

19 these documents. Thank you. I have finished my

20 cross-examination. You can give me back those

21 documents.

22 MR. TURONE: May I ask the document to be marked for

23 identification anyway.

24 MS RESIDOVIC (in interpretation): These documents were

25 given to the witness just to remind him and there is no

1 need for them to be identified.

2 THE REGISTRAR: This is an Act in the procedure. The

3 witness is being shown documents. This is a

4 document. This is not evidence, but the Registry has

5 to keep a copy of those documents:

6 JUDGE KARIBI WHYTE: The Trial Chamber will now rise. We

7 will come back at 12 o'clock.

8 (11.35 am)

9 (Short break)

10 MR. NIEMANN: If your Honours please, may I raise a point on

11 behalf of the prosecution arising out of the

12 cross-examination of this witness?

13 JUDGE KARIBI WHYTE: Yes, you can.

14 MR. NIEMANN: We may wait for the witness to return, or I

15 can make my submission in the absence of the witness.

16 It doesn't matter. Your Honours, having heard the

17 cross-examination of this witness and of the fact that

18 there has been a whole series of documents that have

19 been put to the witness in the course of that

20 cross-examination, and having regard to what happened

21 when the documents were presented to the witness in the

22 terms of the purpose for which they are given, we call

23 upon Madam Residovic to tender the documents in

24 evidence.

25 JUDGE KARIBI WHYTE: You think she should tender it even if

1 she does not want to?

2 MR. NIEMANN: Even if she doesn't want to, your Honour, we

3 call on her to do it.

4 MR. GREAVES: Perhaps my learned friend might tell us why he

5 says they should do that.

6 MR. NIEMANN: Certainly, your Honours. I will be happy to

7 do that. Your Honours, the documents were put to the

8 witness for a number of reasons. They fall basically

9 into three main categories. The first category is that

10 the documents that were shown and what the witness

11 responded to in relation to them, in our submission

12 proves that this witness can identify the documents.

13 Having regard to the nature of his evidence and the

14 purpose of his evidence, it's in our submission very

15 important that we see the documents that he was able to

16 identify. So we're not submitting that the documents

17 should go to your Honours as proof of their contents.

18 We are not suggesting that at all at this stage. We

19 may assert at a later stage that your Honours should

20 accept them for the truth of their contents. What we're

21 saying, though, is that having regard to the

22 cross-examination these documents, when put to the

23 witness, were spoken of by him in a way which goes to

24 show that he was familiar with them and was capable of

25 dealing with them. Now certainly there are exceptions,

1 as Judge Jan had pointed out, that he cannot talk about

2 whether he knew the handwriting of a witness. He can't

3 talk about whether he knew where precisely they came

4 from, but he was able to give some evidence of the

5 provenance of these documents and his ability to

6 identify them. We submit that that is relevant and

7 it's properly admissible and, of course, without the

8 documents themselves the evidence is incomplete.

9 Another basis, your Honour, is that we submit that

10 with the -- my German is not so good -- the

11 Niederschrift document, which I think is the records

12 which were shown to the witness, and the search warrant

13 itself, this is evidence that there was regularity in

14 the procedures that were followed, and that the police

15 in Vienna had gone according to law in the methods about

16 which they sought to seize these documents. Now there

17 may be arguments that the letter of the law was not

18 complied with in every particular aspect, but it is

19 certainly evidence of the fact that procedures were

20 followed according to law. We submit when it comes to

21 the tendering of the documents, this is relevant. It's

22 for these reasons we believe that even if it's out of

23 the mouth of the defence, it's still relevant and should

24 be tendered. If the defence decline to tender them, as

25 I've called for them to be tendered, then in my

1 submission the Prosecution seeks for them to be tendered

2 at this stage. Thank you, your Honours.

3 MR. MORAN: Your Honour, first, my learned friend seems to

4 forget they have already introduced the search warrant

5 into evidence. I believe it is Prosecution 102, 103,

6 somewhere around in there. Secondly, these documents

7 have all been marked as Prosecution Exhibits. It's the

8 Prosecution's job to show their admissibility, and so

9 far all they've proven is that officer Moerbauer

10 examined them at some point in history. They haven't

11 shown where these things came from, that they're

12 authentic, anything. All they have shown is Moerbauer

13 saw them in his office in Vienna and that they'd arrived

14 there through various permutations. That doesn't get

15 them there, your Honour. They still aren't there for

16 admissibility.

17 JUDGE KARIBI WHYTE: If my understanding is correct, that's

18 not the issue at this stage. He's only trying to show

19 that there was a system adopted by Moerbauer in

20 determining what documents he would admit or do things

21 which he included in those files. That is all he's

22 trying to show to avoid the general argument that he

23 never knew what documents were there or not. Yes,

24 Mr. Ackerman?

25 MR. ACKERMAN: Somehow things seem to have gotten confused,

1 your Honour. I think what my colleague from the

2 Prosecution was talking about were the last three or

3 four documents that Ms. Residovic had the witness take a

4 look at to see if he could identify them. What the

5 Prosecution seems to be asking is that they be made a

6 part of the record in the case. My understanding was

7 that the Registrar announced that they would be made a

8 part of the record in the case and a copy would be made

9 for the record in the case, and that should end the

10 matter. If what the Office of the Prosecutor is asking

11 is that they further be admitted in evidence, I think

12 that's improper, because they were used strictly for

13 impeachment purposes and not for the contents of the

14 documents.

15 JUDGE JAN: They can be marked for the purpose of

16 identification.

17 MR. ACKERMAN: I think that's what has been done. So I

18 think from that standpoint it has been taken care of.

19 MR. NIEMANN: Might I respond, your Honours?

20 JUDGE KARIBI WHYTE: Yes.

21 MR. NIEMANN: Your Honours, with respect to --

22 JUDGE KARIBI WHYTE: Before you carry on, is my definition

23 of your position correct, that you are merely using it

24 to test whether Moerbauer had a system for identifying

25 those documents.

1 MR. NIEMANN: Exactly, your Honour. When showing the

2 documents -- while he was able to do that, we submit

3 they should be tendered on that basis, not merely marked

4 for identification, because of his proof of that.

5 JUDGE KARIBI WHYTE: Already his evidence to that was the

6 answer to the document which was shown.

7 MR. NIEMANN: Yes, your Honour, but in my submission the

8 evidence is not complete without the documents.

9 JUDGE KARIBI WHYTE: The documents have been accepted as

10 the documents shown to him, which he acknowledged.

11 MR. NIEMANN: But is it part of the evidence, your Honour?

12 I mean, it's one thing to mark something for

13 identification.

14 JUDGE KARIBI WHYTE: No, not strictly part of the evidence

15 but he has identified those documents shown to him.

16 MR. NIEMANN: In our submission, your Honour, that is a

17 proper basis for admissibility. If the witness is

18 shown a document -- now, it's not correct to say that he

19 was impeached on the documents. It may certainly have

20 been counsel's intention to impeach. (a) We say that

21 didn't succeed at all and (b) we say that something else

22 happened in the process.

23 JUDGE KARIBI WHYTE: I suppose that is the result of your

24 new argument, that the impeachment wasn't successful.

25 MR. NIEMANN: Yes.

1 JUDGE KARIBI WHYTE: Because of what he did.

2 MR. NIEMANN: Counsel deliberately and intentionally led the

3 witness on into other areas. If counsel had not

4 intended that, that is regrettable but counsel did it.

5 That is on the record. We submit the record is now

6 incomplete, because the witness has testified as to

7 certain documents, which are not in evidence. We

8 submit that they should be put into evidence, and we

9 request that that happen.

10 JUDGE KARIBI WHYTE: My apprehension mainly is there was no

11 evidence laid for the foundation of admitting those

12 papers other than showing him those things.

13 MR. NIEMANN: I understand that, your Honour. That may be

14 a problem if we were trying to rely on them for the

15 truth of their contents but I make it clear that they

16 are not at this stage. We are merely trying to rely on

17 the documents to show that these are the particular

18 documents that the witness was shown and from which he

19 was able to demonstrate to your Honours that there was a

20 system in place and he was familiar with that system and

21 he knew how to use it. In our submission, at this

22 stage that's relevant.

23 JUDGE JAN: We have yet to determine from which they were

24 found.

25 MR. NIEMANN: Of course, your Honour.

1 JUDGE JAN: So when this is done, then perhaps all your

2 folders, whatever they are, they will become part of the

3 record then. The probative value of this document can

4 be taken up at a later stage. Let us first of all find

5 out from what source they came.

6 MR. NIEMANN: If I may, your Honour, certainly that is

7 something we have undertaken to do and we will do.

8 JUDGE JAN: Mark them for identification purposes at this

9 stage. This document was shown. Now what this

10 document is, from where it came is yet to be established

11 by the Prosecution.

12 MR. NIEMANN: Certainly, you were, but if I may press the

13 point, the point is that we're not seeking to tender

14 them for the truth of their contents, which would

15 obviously be very important to establish that chain at

16 this stage if we sought to tender them, but we're not

17 doing that. All we are seeking to do at this stage is

18 part of the system of identification. Now it may be,

19 your Honours, that some of the documents or all of the

20 documents may not ultimately be admitted, but it may

21 still be a very relevant issue to the proceedings as to

22 whether there is an appropriate system in place and

23 through that system certain of the documents could be

24 identified and whether or not there are procedures that

25 were followed according to law. In our submission,

1 these documents would prove that and that alone, and

2 should, therefore, at this stage be admitted. I

3 accept, your Honour, that with change --

4 THE INTERPRETER: Could counsel please slow down a little

5 bit for the interpretation. Thank you.

6 JUDGE JAN: Actually it was a matter of convenience that we

7 examine Mr. Moerbauer at this stage otherwise the persons

8 who discovered the documents should have come first and

9 then he could have said: "These are the documents I

10 examined and these are the contents of the documents"

11 and his report comes in. If that would have happened

12 in the proper course, first examine Mr. Navrat, examine

13 Mr. Unger, then this gentleman come: "Yes, I received

14 these documents from them and this is what I found in

15 them". As a matter of convenience we allowed

16 Mr. Moerbauer to be examined first. The defence would

17 never get any opportunity after that to show this

18 document to this witness. Therefore we are making them

19 at this stage only for the purpose of identification.

20 Let Mr. Navrat come. Let Mr. Unger come. Since these

21 are the documents we located from the premises occupied

22 or in the possession of the accused -- normally actually

23 the person who recovered the documents from the spot

24 would have come first but as a matter of convenience we

25 allowed this gentleman to give his evidence at this

1 stage.

2 MR. NIEMANN: Having regard to the rules of the Tribunal in

3 relation to evidence, it would have been entirely

4 possible to present all of the documents without calling

5 a witness at all. Now that may have caused

6 difficulties in relation to --

7 JUDGE JAN: You see, under Rule 95 the defence has a right

8 to say these documents were not properly taken into

9 custody. If they can establish that, the documents

10 will probably be not admitted into evidence. At this

11 stage how can we say: let them be admitted into

12 evidence. All we are doing at this stage is allowing

13 these documents to be marked for the purpose of

14 identification and this has been done.

15 MR. NIEMANN: But it is a question of weight, your Honour.

16 If the documents are admitted into evidence and the

17 Prosecution has not adequately, properly or otherwise

18 established the province of them, it may be that your

19 Honours choose to either reject them from evidence or,

20 alternatively, you say: "We give them no weight" but in

21 proceedings that have happened before this Tribunal on

22 previous occasions this sort of objection has been taken

23 and certainly witnesses have been called, but not

24 necessarily always the case, because your Honours are

25 not a jury; you are judges. You have the ability, the

1 skill and the training to be able to remove things from

2 your mind and not take them into consideration if they

3 are admitted and you choose later not to accept them.

4 Now, in my submission, imposing the traditional

5 jury type rules and regulations of evidence in relation

6 to these proceedings will do nothing except extend them

7 for a very, very long period of time, when your Honours

8 are perfectly capable and skilful enough and trained to

9 be able to do all of that with documents that are

10 admitted into evidence and which you later choose to

11 apply no weight to. My submission, and I'm getting

12 away from my original submission to your Honours, but I

13 do submit that on the basis that I have raised that

14 these documents should be admitted. They should be

15 admitted into evidence.

16 JUDGE KARIBI WHYTE: Now, Mr. Niemann, I agree with you that

17 you need supporting evidence for whatever testimony he

18 gave before the Trial Chamber, but I think it's

19 sufficient for us to look at it. The discredit of the

20 witness wasn't complete, because he actually established

21 that he had the system by which he determined how the

22 documents were brought and that is the result of

23 cross-examination. So I regard it as unnecessary to

24 get in the documents which will show nothing more than

25 the fact that you rely on those documents for showing

1 that he recognised the system he used in determining the

2 documents.

3 MR. NIEMANN: If your Honour pleases.

4 MR. ACKERMAN: Your Honour, just very briefly, I think there

5 may be a simple solution. If the Registrar would advise

6 Mr. Niemann of the numbers he has assigned to these

7 documents, then he will know what numbers have been

8 assigned to them. Secondly, I think there's some

9 misapprehension about the record. What Mr. Moerbauer

10 said was given time, he believed he would be able to

11 identify these. He did not actually go to his papers

12 and say: "This particular document came from this

13 particular case". So the record should be clear about

14 that. All he said was he believed he might be able to

15 do that or could do that.

16 JUDGE JAN: Actually Mr. Niemann was not talking only of the

17 three documents shown to the witness at the end. He

18 was referring to documents shown also earlier to the

19 witness, if I'm correct.

20 MR. NIEMANN: Yes, your Honour. That is correct.

21 JUDGE KARIBI WHYTE: Can we have the witness?

22 (Witness re-enters court)

23 (Interpreter re-enters court)

24 MR. MORAN: Your Honour, given the lack of earphones up

25 here, I think we're going to have to take a couple of

1 minutes to situate ourselves.

2 Cross-examination by Mr. Moran

3 MR. MORAN: May it please the court?

4 JUDGE KARIBI WHYTE: Yes, you can continue.

5 MR. MORAN: Good afternoon, Mr. Moerbauer. My name is Tom

6 Moran and I represent a gentleman here named Hazim

7 Delic. I'm going to ask you a few questions about your

8 training and experience and a few questions about what

9 occurred in here in your direct examination. If you

10 have any questions about what I ask you, will you stop

11 me and we'll clarify it? One other thing, there's a

12 lady sitting right up there named Melanie. She's the

13 court reporter. Melanie has to take down every word

14 that we say in here and she can't take down a nod.

15 A. Yes, I've understood you.

16 Q. Okay. Thank you very much, officer. By the way,

17 you've testified before, haven't you?

18 JUDGE JAN: He has already answered that question

19 earlier.

20 MR. MORAN: Thank you, your Honour. As I recall your

21 testimony earlier today -- earlier during your testimony

22 you testified that from 1981-1984 you were in a basic

23 police school; is that correct?

24 A. 1981-1984, yes.

25 Q. And during that three year course of instruction did you

1 get any instruction on handling of physical evidence?

2 A. Yes, that's right.

3 Q. And, in fact, I'll bet that during your instruction in

4 physical evidence they told you that it was very

5 important that when evidence was seized, it should be

6 accounted for properly at the time it was seized, didn't

7 they?

8 A. When objects are seized, you have to be able to say

9 where they were seized from. It doesn't say exactly

10 how you go about that.

11 Q. Yes, but what I'm getting at is your training taught you

12 to be careful about accounting for evidence that was

13 seized, didn't it?

14 A. Yes, that's right.

15 Q. And then you had four years of experience as a police

16 officer in Vienna. Was that what we would call in my

17 country a street cop?

18 A. Yes. I served in the First District of Vienna.

19 Q. As what we would call a patrol officer, someone wearing

20 a uniform driving around in a marked car?

21 A. Yes. I was a patrol officer with a uniform and I did

22 patrol in a vehicle.

23 Q. During that four years as a patrol officer did you have

24 any occasion to seize evidence?

25 A. Yes, I did have such occasion.

1 Q. And I'll bet on each and every occasion you made sure

2 that the evidence that you said you seized was what you

3 actually seized, didn't you?

4 A. The difference between the duty at the time was that

5 objects were seized that were on a different basis, that

6 is to say I did not seize objects on the basis of a

7 court warrant at the time.

8 Q. Yes, sir. Now the question I asked was: when you

9 seized evidence while you were a patrol officer in

10 Vienna from 1984-1988, did you account for that evidence

11 that you seized? Stated a little bit differently, did

12 you make sure that what you turned in was what you had

13 seized?

14 A. Yes, that's how it was done.

15 Q. Okay. Now that brings us to 1988. I understand

16 between 1991 and 1992 you were in a two year detective

17 course?

18 A. This was a detective Kriminalbeamter course. It lasts

19 for one year. As far as I can remember from October

20 1992 -- no, that course of instruction lasted from

21 October 1991-October 1992.

22 Q. During that course you were trained to be a detective?

23 A. The course lasts for a year and is four months on hands

24 training in a police station in a detective unit, and

25 the other eight months consists of theoretical

1 instruction.

2 Q. Inspector, I'll bet during either that hands-on training

3 or during the classroom training, somebody talked about

4 the proper handling of evidence, didn't they?

5 A. Yes, that's right.

6 Q. By the way, when I say hands-on training, I mean the

7 practical training where you were assigned to a

8 detective unit. I'll bet that that training included

9 properly inventorying what you seized and properly

10 accounting for it?

11 A. With regard to seized objects, the stickers are put on

12 them so that it can be ascertained where they were

13 seized. Now whether this concerns the items in bulk or

14 individual items, that is not specified as a rule. It

15 is settled on a case-by-case basis.

16 Q. Well, let me give you an example. Suppose that you

17 filled out a form that said you'd seized 30 kg of

18 cocaine or 30 packages of $20 bills each containing

19 $1,000. Later when that cocaine or packages of $20

20 bills were counted, there were only 28. Would there

21 just be a correction made to the report, or would

22 somebody run an investigation on it?

23 A. If you have a suitcase that's seized and it contains

24 cocaine or money, then you can describe it. I can put

25 a note on it: "Contents: 1 kilo of cocaine and

1 so-and-so many dollars" or I can put a slip on it -- I

2 can put a slip on the suitcase, on the cocaine and on

3 the money, and then it doesn't really matter what the

4 exact amount is. A note goes into the record and then

5 one has to determine whether there's been some

6 inappropriate behaviour. One has to ascertain what

7 became of the cocaine or the money.

8 Q. So what I'm getting at is if you thought that you'd

9 seized 30 kilos of cocaine, you would put down some

10 place that you'd seized 30 kilos of cocaine, wouldn't

11 you?

12 A. Yes, that's right.

13 Q. If later there turned out only to be 28 kilos of cocaine

14 somebody would ask some questions, wouldn't they?

15 A. Yes, that's right.

16 Q. Why are videotapes any different?

17 A. With regard to the videotapes, a note was entered into

18 the record about the number and that was passed on to

19 the court.

20 Q. So somebody, when they seized a bunch of videotapes,

21 wrote down that they had seized 30 and, in fact, only

22 had seized 28. That's no big deal; right?

23 A. The Vienna District Court was informed of the situation,

24 and should they have assumed there was some

25 inappropriate behaviour or theft, then that would have

1 been considered to be an offence and legal action would

2 have been taken.

3 Q. Let's flip it to the other side, detective. How about

4 if you said you'd seized 51 kilograms of cocaine and

5 later on it turned out you said you had 54? Would

6 anybody ask any questions about that?

7 A. At all events a record would be made of the state of

8 affairs and the court would be informed thereof.

9 That's what happened with the videotapes. The court

10 was informed thereof.

11 Q. What I am getting at, detective, is would you be more

12 careful if you were doing cocaine rather than

13 videotapes? Videotapes aren't that important; is that

14 it?

15 A. The videotapes were secured as evidence and it doesn't

16 matter whether videotape or cocaine is involved. I, at

17 all events, would handle these objects exactly like

18 cocaine.

19 Q. That's right. The way you'd handle cocaine or

20 videotapes would be someone would seize it, someone

21 would inventory it, be it 51 kilograms of cocaine or 51

22 videotapes. Someone would count it, wouldn't they?

23 A. Yes, that's right.

24 Q. And you'd expect the count to be right, wouldn't you?

25 A. Well, with regard to the number of the videotapes that

1 was subsequently corrected.

2 Q. Yes, sir, and what I'm getting at is you would expect

3 the count on the scene, when it was seized, to be

4 accurate, wouldn't you? I mean, it's not hard for a

5 trained police officer to count from 1-51, is it, or

6 from 1-54?

7 A. I personally only seized four videos and there were four

8 videos. Now with regard to the other video tapes,

9 you'll have to ask my colleagues who seized them.

10 Q. All right. It's not hard for a trained police officer

11 to count from 1-51, is it?

12 MR. NIEMANN: Your Honour, I object to this question.

13 JUDGE JAN: He is challenging the ability of the Austrian

14 police to make correct counts.

15 MR. MORAN: Well, your Honour, either a trained police

16 officer can count from 1-51 or he can't. Either he can

17 be expected to count from 1-51 and do it right or he

18 can't. This man is much more experienced in the

19 Austrian police than I am.

20 MR. NIEMANN: The basis of my objection, your Honour, is

21 what is the relevance of whether Austrian police can

22 count from 1-51 or 1-100. It is absurd to be putting

23 these questions to this witness. Counsel knows the

24 answer clearly and everybody else in this courtroom

25 knows the answer.

1 JUDGE JAN: You have got the answer from the Prosecution.

2 MR. MORAN: Your Honour, the reason that question was asked

3 is somebody counted 51 video tapes. Now there are

4 three extras. We have no idea where these three extras

5 came from. We ought to be able to presume that the

6 officer who seized them seized them correctly.

7 JUDGE JAN: Actually there have been three counting

8 errors. One of 30 to 28. Then the total in the

9 report is shown at 83, whereas it should be 86.

10 MR. MORAN: On that last one, my maths being what it is,

11 I'll give him that one.

12 JUDGE KARIBI WHYTE: Go straight into your object of

13 cross-examination.

14 MR. MORAN: Yes, your Honour. Detective, you testified

15 yesterday you watched 60 video cassettes; is that

16 correct?

17 A. That's right.

18 Q. By my maths about 82 were seized; is that right?

19 A. That's right, yes.

20 Q. And --

21 A. 86, I believe.

22 Q. Okay. You testified this morning that you watched

23 things that were taken off the air and you watched

24 comedy shows and you watched folk singing. What's on

25 those other 20 some odd tapes?

1 A. There were about 20 or more videos which I did not

2 see. Now, as to precisely which ones I saw and which I

3 didn't see, I can't answer that, but at all events an

4 index was drawn up in relation to the videotapes and

5 there you can find the contents of the said videotapes.

6 Q. Could the Registrar please show this man Prosecution

7 Exhibit 139? Detective, I'm going to have shown to you

8 something that has been marked for identification as

9 Prosecution Exhibit 139. (Handed to witness). Now,

10 detective, that's something that purports to be a

11 judgment from a court, isn't it?

12 A. Yes, that's right.

13 Q. Do you or any member, to your knowledge, of the Austrian

14 police have the slightest idea of whether or not that is

15 a true and correct copy of the original judgment?

16 A. With regard to this document, it was not checked to see

17 whether it was genuine, but via a note in the record the

18 competent judge was informed of this document.

19 Q. And the competent judge is Judge Seda; right?

20 A. Dr. Seda or Dr. Bornath.

21 Q. Are either one of them the judges that entered that

22 judgment?

23 A. No, neither of them.

24 Q. In fact, that judgment didn't even come from an Austrian

25 court, did it?

1 A. That's right.

2 Q. In fact, I could have sat down at my typewriter and

3 typed that thing, if I spoke Serbo-Croatian. You

4 wouldn't know, would you?

5 A. That possibility would exist, yes.

6 Q. Are you familiar with the search warrant in this case?

7 If not, we can find a copy of it for you in German, I

8 believe. Are you familiar with the search warrant?

9 A. Yes, I am familiar with it to an extent.

10 Q. It authorised you to seize documents about war crimes in

11 Bosnia-Herzegovina, in particular video recordings about

12 the torture of prisoners; right?

13 A. As far as I can recall, that's right.

14 Q. Would you like to see a copy of it?

15 A. Yes, please.

16 Q. It's in the record. It was introduced by the

17 Prosecution. I believe it's Prosecution Exhibit 101,

18 102 or 103.

19 MS van DUSSCHOTEN: It's D29/1.

20 MR. MORAN: I thought that Mr. Turone introduced it.

21 JUDGE ODIO BENITO: May I remind you of the difficulties of

22 the interpreters. You speak terribly fast.

23 MR. MORAN: Yes, your Honour. I'll try and slow down. I

24 try. Sometimes I don't succeed.

25 JUDGE ODIO BENITO: You forget it.

1 MR. MORAN: Sometimes I don't succeed. In fact, often I

2 don't succeed.

3 JUDGE ODIO BENITO: Normally you don't succeed.

4 JUDGE JAN: The train of thought is too fast.

5 MR. MORAN: Detective, could you read on the back what the

6 Exhibit Number is? There is an Exhibit Number on the

7 back. Just flip it over, so the record is clear what

8 it is?

9 A. IT-96-21-T, Exhibit Number D29/1, Trial Chamber 2.

10 Q. That's a true and correct copy of the search want;

11 right?

12 A. Yes, that's right.

13 Q. I believe yesterday you testified that having watched

14 all those videotapes, that there was -- that having

15 watched about 60 videotapes?

16 A. Yes, that's right.

17 Q. That the only thing that you saw that looked like a war

18 crime or looked like torture was "one person, a prisoner

19 no doubt, had to do push-ups".

20 A. Yes, that's right.

21 Q. Detective, have you ever been in the army?

22 A. No, I wasn't in the army.

23 JUDGE JAN: He's too young.

24 MR. MORAN: At police school perhaps did they have a thing

25 called physical training?

1 A. Yes, that's right.

2 Q. I'll bet there was someone when you were taking physical

3 training at the police school who was very much like my

4 drill sergeant when I was in basic training. He was

5 known to say: "Moran, drop and give me 25".

6 A. I did not refer to the push-ups yesterday as

7 mistreatment.

8 Q. No. As I recall, what you said was that was the only

9 possible mistreatment that you saw in the videotapes;

10 isn't that right?

11 A. I can't remember the exact words I used. I said that

12 somebody was obliged to do push-ups. As to whether

13 that was mistreatment or not or whether I said that, but

14 I do not record push-ups as mistreatment.

15 Q. So if push-ups aren't mistreatment, having watched 60

16 videotapes, you didn't see any mistreatment at all;

17 right?

18 A. Now, as I see mistreatment, I did not see anything

19 resembling mistreatment, as I understand it.

20 Q. So you didn't find any recordings about the torture of

21 prisoners, video recordings?

22 A. I did not see any tortures or mistreatment.

23 Q. Also a couple of days ago you testified about Sanda

24 Mucic?

25 A. Yes, that's right.

1 Q. And one of the things you said was -- you were being

2 asked whether she was an adult or not, and you noted

3 that she was over 14 and said, according to the

4 transcript:

5 "She was not a child according to our legal

6 system".

7 A. That's right.

8 Q. So that a 14 year old child can marry without permission

9 under your legal system?

10 A. I'm not that acquainted with our legal provisions. With

11 regard to whether you have to be 14 or 16 I really can't

12 say.

13 Q. How about getting a driver's licence?

14 A. You have to be 18 to drive a car.

15 Q. How about to vote?

16 THE INTERPRETER: What about?

17 MR. MORAN: What about voting? Can she vote at 14?

18 A. No, you can't vote at age 14.

19 Q. You've got to be 18; right?

20 A. Yes, you do to vote.

21 Q. And she can't enter in a contract, can she?

22 A. At age 14, as far as I know -- well, it all depends what

23 contracts. If I go into a department store as a

24 12-year-old, I buy something and I get a receipt.

25 That's a kind of contract, if you will, but as regard to

1 the legal details, I'd rather not go into them.

2 Q. Okay. Can she consent to surgery?

3 THE INTERPRETER: Consent to?

4 MR. MORAN: Consent to surgery.

5 A. I really can't say.

6 Q. So just because she was over 14, she can't vote, can't

7 drive a car, you don't know about marrying, you don't

8 know about consent to surgery, but she's not a child

9 under your legal system?

10 A. That's right. She is what they call Strafmundig, that

11 is to say that she would have to assume responsibility

12 for any crimes or offences she committed.

13 Q. Okay. So the only thing that can happen to her, the

14 only way she is treated as an adult is --let me follow

15 that a little bit further. If a 14 year old person, be

16 it Sanda Mucic or my 14 year old daughter, were charged

17 with a crime in Austria, a serious crime, would that

18 person go to the same court you and I would?

19 A. The person -- there's the adolescent court, if you will,

20 that would be competent, the juvenile court.

21 Q. That person wouldn't, if they were convicted of a crime,

22 wouldn't go to the same penitentiary that someone who

23 was 30 year old would go to for the same crime, would

24 they?

25 A. That's right.

1 Q. So she's not really an adult, is she?

2 A. No. At 14 she's not an adult.

3 Q. So she's still a child under your legal system; right?

4 A. She's a child up to age 14. After that she is a

5 juvenile or an adolescent.

6 Q. Okay. So she's treated just like an adult from the age

7 of 14 over?

8 MR. TURONE: Objection, your Honour. Asked and answered.

9 MR. MORAN: When does somebody -- never mind. Strike

10 that. Detective, you put a lot of overtime in on

11 watching all these videotapes and things, didn't you?

12 A. Yes, that's right.

13 Q. And you did that because somebody from the Tribunal

14 asked you to do it, didn't you?

15 A. No, that isn't right.

16 Q. You just did it because it seemed like a good idea at

17 the time?

18 A. There was a court order from an Austrian court and we

19 acted on that order.

20 Q. Okay. Fine. Your Honour, if I can just have a second

21 while I go through my notes, I think I'm about done.

22 While you were in police school, basic police school,

23 back in 1981-1984, did they teach you to write reports

24 that correctly reflected what had actually occurred?

25 A. Yes, that's right.

1 Q. And why is that?

2 A. So that then in practice that's what you do.

3 Q. Because people rely on those reports, don't they?

4 A. Rely? Well, when objects are seized for the court, --

5 THE INTERPRETER: I'm afraid the interpreter didn't catch

6 the last bit of that.

7 MR. MORAN: What I'm saying is the people rely on the facts

8 in those reports to make decisions, don't they?

9 A. That's right, yes.

10 Q. So you want those reports to be correct, don't you?

11 A. That's right.

12 Q. And I'll bet you when you were in detective school from

13 October 1991-October 1992 they taught you the same

14 thing, didn't they?

15 A. Yes, that's right.

16 Q. And that's standard training for Austrian police

17 officers, isn't it?

18 A. Yes, that's right.

19 Q. By the way, you say you are a member of the Austrian

20 Federal Police; is that correct?

21 A. Yes, that's right.

22 Q. So that would be the equivalent of the Federal Bureau of

23 Investigation from my country, wouldn't it?

24 A. Well, I'm not sure that any straightforward comparison

25 would be appropriate.

1 Q. Okay. But you are the national police force enforcing

2 national law?

3 A. With regard to the Federal Police divisions, in Vienna

4 there is Division 1 through Division 5. Division 1, in

5 which I work, were responsible for crimes in the

6 political sphere. Division 2 deals with normal

7 offences such as theft, drug dealing. That's what

8 Division 2 does.

9 Q. So you are a political police officer?

10 JUDGE JAN: That may not be the right thing to say. He

11 deals with political offences. It doesn't mean he is a

12 political police officer.

13 MR. MORAN: Let me rephrase that, your Honour. I

14 appreciate that. I think I may have misphrased it.

15 You're part of the security organs of the state; is that

16 right?

17 A. I am a detective with the Federal Police in Vienna. I

18 work in Division 1. That is the office for the

19 protection of the state of individuals and of

20 property. That is the area I work in. I belong to

21 the detective unit which means that at any time I could

22 be working as a detective somewhere else. It's just

23 the way the offences are broken down, that we do have

24 this category of political offences.

25 Q. Okay. A couple of other quick things. At the time

1 Pavo Mucic was arrested he was given a document in

2 German called information sheet for arrested persons,

3 wasn't he?

4 A. Now with regard to that being handed over, I didn't see

5 that happen, but I do know that he got it.

6 Q. And it was handed to him in German; right?

7 A. The document was handed over in German and in the record

8 that is noted down and also the interpreter was present

9 at the time. It is signed by the suspect.

10 Q. Was it explained to him in a language he understood?

11 A. I was not present when the explanations were given or at

12 least I didn't pay any heed while the explanations were

13 given.

14 Q. So you don't know whether or not his rights under

15 Austrian law were explained to him in Croatian, do you?

16 A. I was present when this was explained to him by his

17 daughter in the apartment. Now, at the police

18 headquarters I don't know exactly how this was done by

19 the interpreter.

20 Q. So you were there when it was explained to him by his

21 daughter, who's not old enough to drive a car or vote?

22 A. A few days before that we spoke to Mr. Mucic in Germany

23 and we knew that Mucic spoke German, because he had had

24 dealings with the police in 1991, and the record, the

25 Niederschrift, had been filled out, which was forwarded

1 to the court, and as far as I knew and as far as I could

2 see, Mr. Mucic was aware of the grounds of the arrest.

3 Q. Yes, sir. You have testified at some point that your

4 English is about as good as his German; right?

5 THE INTERPRETER: Excuse me. What was as good as his

6 German?

7 MR. MORAN: That Detective Moerbauer's English is about as

8 good as Pavo's German?

9 A. That's good grounds for comparison, yes. That means

10 it's good enough to get by.

11 Q. Could this be handed to the witness and marked? While

12 that's being done, let me ask you a question. This

13 document, information sheets for arrested persons,

14 that's there to inform --

15 JUDGE KARIBI WHYTE: Mr. Moran, can we have a break now for

16 lunch?

17 MR. MORAN: Three minutes, Judge, and I'm done.

18 JUDGE KARIBI WHYTE: Okay.

19 MR. MORAN: Okay. And that document --

20 JUDGE JAN: Mr. Moran, did you notice that Mr. Mucic was able

21 to point out that the German translation was not correct

22 yesterday?

23 MR. MORAN: No, your Honour.

24 MR. GREAVES: That was Mr. Delalic.

25 JUDGE JAN: Oh, I beg your pardon.

1 MR. MORAN: What was the marking on that document?

2 THE REGISTRAR: D5/3.

3 MR. MORAN: Detective Moerbauer, when that document is

4 handed to you, without the help of the interpreter, I

5 want you to read it, just the yellow highlighted part,

6 and tell the judges what it means. I'm here to tell you

7 that that is a correct explanation of law from another

8 country.

9 MR. NIEMANN: Your Honours, I object to this. I can't see

10 where it's leading at all in terms of -- if counsel is

11 trying to establish the proficiency of the witness'

12 English, then I hardly see how it is relevant to any of

13 the matters that he has raised.

14 MR. MORAN: Your Honour, I think an issue before us is

15 whether or not Pavo Mucic understood his rights under

16 Austrian law, as explained to him in the information

17 sheet for arrested persons.

18 MR. NIEMANN: But, your Honours, in my submission none of

19 this took place in the English language. So what is

20 the relevance of it?

21 JUDGE JAN: Mr. Gschwendt was asked a number of questions.

22 THE INTERPRETER: Microphone, your Honour.

23 JUDGE JAN: This information document. Mr. Gschwendt was

24 asked about these questions.

25 MR. MORAN: Your Honour, he was asked the content of the

1 documents, not about Mr. Mucic's understanding of them.

2 MS McHENRY: If I may just correct the record, I believe

3 that Mr. Gschwendt said they were all interpreted to the

4 accused in his own language.

5 JUDGE ODIO BENITO: Yes.

6 MR. MORAN: Also, your Honour, having looked over my notes a

7 little bit further, Moran's iron clad law on time by

8 lawyers seems to be coming into play now. I do have a

9 little bit more. It might be better if we went to

10 lunch now. Again that iron clad law, I made a good

11 faith estimate and I was wrong.

12 JUDGE KARIBI WHYTE: Are you continuing after lunch?

13 MR. MORAN: Yes, your Honour. Thank you.

14 JUDGE KARIBI WHYTE: We will now break for lunch.

15 (1.00 pm)

16 (Luncheon Adjournment)

17

18

19

20

21

22

23

24

25

1 (2.30 pm)

2 (Witness re-enters court)

3 (Interpreter re-enters court)

4 MS McMURREY: Apologies to the court.

5 MS RESIDOVIC (in interpretation): Apologies, your Honour.

6 THE REGISTRAR: You are still under oath I might remind

7 you.

8 A. Yes.

9 MR. MORAN: Your Honour, at this point I'll just pass the

10 witness.

11 JUDGE KARIBI WHYTE: Thank you very much.

12 Cross-examination by Mr. Greaves

13 MR. GREAVES: Mr. Moerbauer, I want to ask you now some

14 questions please in connection with this matter. Can I

15 just ask you this, please, Mr. Moerbauer? I'm not

16 entirely clear as to what your police unit actually

17 does. That is Abteilung 1, it's called, isn't it?

18 A. Abteilung 1 is for the protection of the State, of

19 individuals and of property. Now protection of the

20 State, this has to do with offences which in the

21 criminal code are considered to be political in nature;

22 for example, a threat to neutrality is referred to.

23 Then there is matters relating to Yugoslavia; in

24 connection with violations of the UN embargo, etc. So

25 it's those kinds of dealings that our division is

1 involved in. Then in the case of people whose lives

2 are in danger or when there's official visits, we

3 provide protection there. Then there's also objects in

4 connection with international organisations, which

5 Division 1, which I work for, is in charge of

6 protecting.

7 Q. So it involves a wider range than counter-espionage,

8 counter-subversion and counter-terrorism, a wider remit

9 than that?

10 A. Yes, that's right.

11 Q. Thank you. Is your unit considered to be an elite unit

12 within the Austrian police force, Mr. Moerbauer?

13 A. Division 1 is one that reports to the Vienna Police

14 Department. It's on the same footing as Divisions 2

15 through 5.

16 Q. Can I ask you now, please, about your training as a

17 detective? You've answered some questions about that,

18 but I would like just a little more detail, please.

19 When you are trained to be a detective, is one of the

20 things that you are trained in how to prepare for the

21 conduct of an interview with a suspect?

22 A. Yes, that's right.

23 Q. And amongst the things that you are taught is no doubt

24 to assemble all the witness statements in a particular

25 case, to study them before you go and interview someone;

1 is that right?

2 A. No, that is not right. Anyone who is arrested, after

3 arrest is questioned, a record is kept, and on that

4 occasion he has an opportunity to state his views as to

5 the reasons for which he was arrested.

6 Q. But when you interview a suspect, Mr. Moerbauer, how do

7 you know what questions to ask him, if you haven't found

8 out what the case is about?

9 A. Well, the arrest warrant was issued on specific grounds

10 and the record of the interview is taken on the basis of

11 that warrant.

12 Q. I want to ask you now about the information which you

13 had prior to the arrest of Mr. Mucic in early March of

14 1996. You first became aware of this case on 6th

15 March, when you were on holiday; is that right?

16 A. Yes, that's right.

17 Q. And it was sufficiently important for your colleague,

18 Mr. Panzer, to telephone you whilst you were on holiday?

19 A. Apparently.

20 Q. What rank is Mr. Panzer, by the way?

21 A. Mr. Panzer has the same rank as I do. He's District

22 Inspector, and he's also a team or unit leader.

23 Q. So by the time that you came to arrest Mr. Mucic, is this

24 right, that you had become aware of three potential

25 claimants for him: this Tribunal, the former Republic

1 of Yugoslavia, and Bosnia?

2 A. I was aware that there were three bodies involved: the

3 Austrian court, the Federal Republic of Yugoslavia and

4 the Tribunal.

5 Q. The only one that was accompanied by any degree of

6 detailed information, that was the Tribunal's request,

7 was it?

8 A. The information I saw was provided by 210, Department

9 210, Interpol, in other words one document. There were

10 only two or three pages. In that document was stated

11 that Mucic was suspected as camp commander of Celebici

12 of having committed crimes and on the basis of that

13 document I acquired my knowledge. So Department 210

14 should have more information and, in fact, I was given

15 some other information, more details, from Department

16 210.

17 Q. But was that document which you saw an international

18 criminal Tribunal document, Mr. Moerbauer?

19 A. I saw one document, as best I can remember, from the

20 Tribunal.

21 Q. And you had no information from any other source aside

22 from that document and the arrest warrant?

23 A. The further information was provided to me from the

24 people in Department 210.

25 Q. How extensive was that information, Mr. Moerbauer? Was

1 it a two minute conversation or a ten minute

2 conversation or what?

3 A. It was a conversation that was relatively short. I was

4 informed that he was allegedly camp commander in

5 Celebici and that there had been mistreatment of

6 prisoners there, and that people had been locked up in

7 shafts, and that's what I knew and that's all I knew

8 until we began with the interview.

9 Q. Of the requests that were being made for extradition of

10 Mr. Mucic, the only one that caused people to be present

11 was the one from the International Tribunal?

12 A. As far as I know, in our department there was no contact

13 with other investigators.

14 Q. So that the only people who turned up to pursue their

15 request for this man was this Tribunal?

16 A. Well, people from other organs or from other courts I

17 don't have any knowledge of there being any.

18 Q. The answer is this, isn't it: there were no other

19 representatives from any other body other than the

20 International Tribunal pursuing Mr. Mucic actively before

21 and after his arrest?

22 A. Yes, that's right.

23 Q. I would now like to turn to the day of his arrest,

24 Mr. Moerbauer, 18th March, 2.15 in the afternoon, but

25 prior to 2.15 in the afternoon had you and your

1 colleagues been making observations at the Taubergasse

2 area all that day?

3 A. Yes, that's right.

4 Q. Mr. Moerbauer, I don't want to know where your

5 observation post was, but I want to know this, please.

6 Did the observation post that you had have a good clear

7 view of the Taubergasse?

8 A. Now, on that day Mr. Mucic was repairing a car in the

9 Natagasse and it was, in fact, a colleague who went up

10 to him and talked to him about the repairing of the

11 car. In fact, that lasted a fair bit.

12 Q. Can you help me about this. Can you recall at what

13 time he was first seen that morning?

14 A. I only know that it was in the course of the morning,

15 but I'm afraid I can't tell you the precise time. I'd

16 have to have a look at the relevant document.

17 Q. Well, just help us. I mean, are we talking early

18 morning, mid-morning, closer to lunchtime? What are we

19 talking about?

20 A. About 11 o'clock, closer to noon.

21 Q. And so at the time he was arrested, 2.15, he was still

22 working on this vehicle in the Natagasse, was he?

23 A. Well, he repaired the car, went into the apartment, came

24 back to the vehicle, went on fixing it. At the time of

25 the arrest he'd already fixed the car. He was on his

1 way to -- if the interpreter has understood it rightly

2 -- to the Suzuki car shop. That's when he was

3 arrested.

4 Q. At what time had you started making observations that

5 morning?

6 A. The observation began at around 7 o'clock.

7 Q. And whilst he was in the Natagasse did you continue to

8 keep watch on the Taubergasse address?

9 A. There were several people scattered around this area.

10 Q. And Mr. Mucic was quite alone at the time of his arrest,

11 wasn't he?

12 A. Mr. Mucic was alone at the time of his arrest, yes.

13 Q. And physically I think you and your colleague,

14 Mr. Panzer, were the two that actually went and arrested

15 him?

16 A. Panzer, Bycek, Borlak and myself were present at the

17 scene and two officers secured the area and Panzer and

18 myself went ahead with the arrest.

19 Q. Immediately upon his arrest, and by that I mean there in

20 the street, you say that he was told of his rights?

21 A. He was informed of the grounds of the arrest?

22 Q. He needed an interpreter throughout these proceedings,

23 didn't he, Mr. Moerbauer?

24 A. The interpreter was at police headquarters as of

25 4 o'clock and the questioning of the suspect and the

1 filling in of the forms at police headquarters was

2 carried out in the presence of an interpreter.

3 Q. You see, I suggest to you, Mr. Moerbauer, that the

4 reality is that Mr. Mucic doesn't have a very good

5 understanding of German, and you're not being entirely

6 straight with us when you say he does.

7 A. Mr. Mucic certainly understood the grounds of the arrest

8 and he also understood the further proceedings, and he

9 also, in fact, mentioned that he had been expecting the

10 police to turn up for a number of years.

11 Q. If he understood what you were saying to him, why did

12 you need to get his 16 year old daughter to explain it

13 to him in the flat then?

14 A. Because Mr. Mucic apparently on account of the

15 circumstances was a bit overwhelmed, a bit too

16 overwhelmed to express himself in German.

17 Q. I suggest to you that the reality was that he hadn't

18 understood what he'd been told outside because his

19 German was not up to it, Mr. Moerbauer. That's why you

20 needed to get someone else to repeat it.

21 A. With regard to the grounds, whether he understood that

22 on the spot, well, I can't claim anything there, but by

23 the time we got to the apartment it was clear to him

24 exactly what was going on and why these measures had

25 been taken in his respect.

1 Q. I'd like you to have a look at this document, please.

2 There's a copy for the Prosecution and a copy for you.

3 (Handed to Prosecution). (Handed to witness). Can

4 you see that document, Mr. Moerbauer?

5 A. Yes, I do.

6 Q. Just for the sake of the record, and I'm sorry if I

7 murder the German language while I do it, Mr. Moerbauer,

8 it's entitled "Anhaltemeldung"; is that right?

9 A. Yes, that is an Anhaltemeldung.

10 Q. Would that be a custody report? Would that be a fair

11 translation of that name?

12 A. Yes, this is notification that the arrest has been

13 carried out.

14 THE INTERPRETER: The arrest report the interpreter might

15 suggest might be closer, arrest record.

16 MR. GREAVES: Would you like to look at the last page,

17 please? Do you see some signatures there?

18 A. Yes, I do.

19 Q. Is one of those signatures your signature?

20 A. My name is on this Anhaltemeldung, but I do not

21 recognise my initials there.

22 Q. I apologise for it being an indistinct copy,

23 Mr. Moerbauer, but is that your signature?

24 A. That is not the way I usually sign.

25 Q. I think the Prosecution may have the original of this

1 document, and I would ask whether they can possibly

2 produce the original?

3 MR. TURONE: We have a certified copy of the official

4 judicial file, so probably a better photocopy. The

5 original is in Austria.

6 MR. GREAVES: I am grateful to my learned friend Mr. Turone

7 for that information. Perhaps we could see the

8 certified copy, because it's quite an important

9 document, please.

10 JUDGE JAN: You can ask him whether he remembers signing

11 this document or not.

12 MR. GREAVES: Your Honour is going to take the next question

13 out of my mouth but I want to be as fair to him as

14 possible.

15 JUDGE JAN: In any case this is a certified copy, as you

16 say.

17 MR. GREAVES: In the process of photocopying sometimes

18 signatures become less distinct. I want to be as fair

19 to him as possible. I am going to ask him some

20 questions about this document. I don't want there to

21 be any unfairness to him: (Handed to witness). Is

22 that any better, Mr. Moerbauer?

23 A. Yes, it is better. With regard to this Anhaltemeldung,

24 I recognise it, but this is not my usual signature, the

25 way I usually put my initials on a document.

1 Q. Help me about this, Mr. Moerbauer. You were in charge

2 of this detachment, were you not?

3 A. I was involved in the arrest and as far as I know what

4 is stated in this arrest record is right.

5 Q. You recall the document, do you, or what?

6 A. I remember the document, yes, the Anhaltemeldung.

7 Q. I would just like you to read to yourself the whole

8 document. Don't read it out aloud. Just read it to

9 yourself so that you refresh your memory, please. Just

10 dealing with your signature, you're saying that's not

11 your signature in effect; is that right?

12 A. That is not the way I sign or initial usually.

13 Q. So are you saying that someone else forged your

14 signature on that document?

15 A. I can't rule that out.

16 Q. It would have to be one of your colleagues, wouldn't it,

17 who forged your signature on that document, wouldn't it?

18 A. I don't know who signed that.

19 Q. Who else would have access to that document before it

20 was signed, Mr. Moerbauer?

21 A. Theoretically any persons who were on the premises after

22 the arrest and the search. All the records and reports

23 are drawn up that are needed at once, as these records

24 and reports are sent to the court on the same day or the

25 following day, that is to say when the suspect was

1 handed over to the prison facilities.

2 Q. Are you telling us that --

3 JUDGE JAN: Excuse me. It is an official document?

4 A. This is an arrest record, an Anhaltemeldung. It

5 notifies that Zdravko Mucic was arrested and how the

6 arrest was carried out and what the grounds for the

7 arrest were.

8 Q. Are you telling us, Mr. Moerbauer, that anyone could

9 wander into your office and sign a document on your

10 behalf just like that? Are you really telling us that?

11 A. At that point in time the only people who came into the

12 office at police headquarters were the officers involved

13 in the search and arrest, and I might add that the

14 people from the Tribunal were present, but I don't

15 believe that the Anhaltemeldung, the arrest record, was

16 ready at that point in time.

17 Q. Well, let us just have a look at something contained in

18 that document. Can I just ask you to re-read again,

19 please, the second page of that document, and to assist

20 you to find the place, it's line eight, Mr. Moerbauer,

21 that's line eight from the top: I think the sentence

22 starts: "Unmittelbar". Do you see that?

23 A. Yes, I see that.

24 Q. You have already told us that the contents of this

25 document are true. Is that what you are saying?

1 A. Yes, that's right.

2 Q. Correct me if the translation which has been provided by

3 the Prosecution is incorrect, but I'll read out so as to

4 assist you. It says this, doesn't it:

5 "Immediately upon his arrest Zdravko Mucic was

6 informed of the crime he was suspected of having

7 committed and of the grounds of the arrest warrant".

8 That was in the street, wasn't it? That's what

9 you are referring to?

10 A. No. The report refers to what happened in the

11 apartment. Upon arrest he had already been informed

12 and he was informed once again in the apartment about

13 the grounds of the arrest.

14 Q. Forgive me, Mr. Moerbauer. What do the words

15 "immediately upon his arrest" mean?

16 A. It means immediately after the grounds for the arrest

17 were made aware to him.

18 THE INTERPRETER: In fact, if the interpreter might add, it

19 does say in the German "Unmittelbar nach", "immediately

20 after the arrest", for what it's worth.

21 MR. GREAVES: I am grateful for that assistance and I don't

22 pursue the point. Let's go on to the next point. He

23 was handcuffed and he complained about the nature of the

24 handcuffing, didn't he?

25 A. Yes, that's right. The handcuffs were put on a bit too

1 tight upon arrest, but the handcuffs were taken off his

2 hands, because initially he had had the handcuffs put on

3 his hands behind his back and in the apartment they were

4 opened and then he had his hands cuffed again in the

5 front somewhat looser.

6 Q. They had caused quite a bit of a mark, hadn't they,

7 quite a bit of a reddening and injury to the wrist,

8 hadn't they?

9 A. The wrist was irritated, red from irritation, if you

10 will.

11 Q. Now as far as what happened in the house is concerned,

12 what I suggest to you, Mr. Moerbauer, is only Mr. Mucic

13 was present in the house at the beginning of this

14 procedure?

15 A. As far as I can recall, when we began with the search

16 itself, his daughter was already present.

17 Q. Well, you told us in evidence yesterday -- you told us

18 that, but you also concede, when Ms. Residovic was asking

19 you questions, that she may have come in later. I

20 suggest she came in as late as 3 o'clock,

21 Mr. Moerbauer. ?

22 A. The daughter of Mucic was there when Mr. Mucic was

23 informed of the grounds of arrest in the apartment and

24 acted as interpreter. Thereupon we began with the

25 search.

1 Q. Well, I suggest she came in at 3.00 and she was

2 obviously a schoolgirl. She had all her -- she came in

3 from school that day?

4 A. I can only say that when we began with the search Sanda

5 Mucic was already present in the apartment.

6 Q. Well, the search lasted three-quarters of an hour or

7 thereabouts; is that right?

8 A. About three-quarters of an hour, yes.

9 Q. Look at line 25 of page 2 of your document, please,

10 Mr. Moerbauer. I think you'll find it's the final

11 paragraph on that page. Do you have that?

12 A. Yes.

13 Q. Again allowing for the translation being incorrect,

14 would you agree that it says this:

15 "In 1170 Vienna, Taubergasse 15, Door 10 and in

16 the other premises belonging thereto, in the time from

17 14:20 to 15:40 hours, in the presence of Zdravko Mucic

18 and his daughter, Sanda Mucic, the court ordered house

19 search was carried out"?

20 A. Yes, that's right.

21 Q. Whatever it may say in the Niederschrift, in that

22 document you are saying that the search came to an end

23 at 1540 hours.

24 A. Now it was 1540 when the search was over, when we locked

25 the door. That wasn't cleared up yesterday.

1 Q. With the search ending at 1540 and having lasted about

2 three-quarters of an hour, that timing would fit with

3 Sanda Mucic coming in at 3 o'clock, wouldn't it,

4 Mr. Moerbauer?

5 A. Sanda Mucic acted as interpreter to inform him of his

6 rights and afterwards that's when we began with the

7 search. Now, as to exactly down to the last minute

8 that was, I can't really say.

9 Q. Can you help me about this, please: was Taubergasse 15,

10 Door 14, one of the other premises you were referring to

11 in this document?

12 A. Yes. There was another search, Taubergasse 15, Door 14,

13 and as far as I know, Sanda Mucic was present there as a

14 witness, according to the relevant document, the

15 Sicherstellungs Protokoll.

16 Q. So the search of Taubergasse 15, Door 14, would also

17 have been completed by 1540 hours; is that right?

18 A. The time as to when the search began and ended at

19 Taubergasse 15/14, the time indicated in the

20 Sicherstellungs Protokoll, in the search record, is not

21 familiar to me. I can't tell you what time was put

22 down there.

23 Q. I'm sorry. You've just used the name of a document

24 that I'm not familiar with. What document is that,

25 Mr. Moerbauer?

1 A. The Sicherstellungs Protokoll is the form that you use

2 during a house search. These are the documents that

3 bore the wrong date. They have had the 19th

4 March 1996.

5 Q. What we've been calling the Niederschrift?

6 A. Yes, that's right.

7 Q. If the Niederschrift for Taubergasse 15, Door 14, says

8 the search came to an end at 1610, that's the definitive

9 one, is it, the definitive time?

10 A. If the officers put that time down, that must have been

11 the time. As to whether that was the time at which the

12 search was ended or the time at which the apartment was

13 locked up, I cannot say.

14 Q. So the information contained in the custody report that

15 you've told us was true isn't true, is it?

16 A. Now the time of the search in Taubergasse 15, Door 10,

17 at 2.15 Mucic was arrested. We went to the

18 apartment. It takes at most five minutes. So by 2.20

19 in the afternoon the apartment should have been opened

20 and that time should be about right. Now that the

21 search was over by 3.40 in the afternoon, the search may

22 have been over earlier than that, but that the apartment

23 was locked or left only later, as I say, at 1540 in the

24 afternoon.

25 Q. Forgive me, Mr. Moerbauer. The Niederschrift and the

1 custody report have different ending times for this

2 procedure, don't they?

3 A. Now, I do not know what time is indicated in the

4 Niederschrift.

5 Q. Have a look at D53/1, please, which I think is in the

6 possession of the Registry. Do you see the bottom line

7 there, Mr. Moerbauer. 16:10 hours, isn't it?

8 A. Yes, that is the search of Taubergasse 15, Door 14.

9 Q. In your custody record you have said that the words

10 "other premises" includes Taubergasse 15, Door 14 and

11 you've said in that report the search is ended at 15.40

12 hours. They cannot both be true, can they?

13 A. In the Anhaltemeldung it says at the apartment Door 10

14 the search lasted from 2.20 in the afternoon until 3.40

15 in the afternoon. In the Niederschrift it says for

16 Door 14 the relevant documents were handed over in

17 connection with that apartment at 4.10 in the afternoon.

18 Q. Now would you like to answer my question, please. They

19 can't both be right, can they?

20 A. Now the search of Taubergasse 15, Door 10, ended at

21 3.30. There were some 20 minutes to go ahead with the

22 search of Taubergasse 15, Door 14. I don't see any

23 contradiction there at all.

24 Q. Very well, Mr. Moerbauer. We'll move on. You treated

25 Sanda Mucic as a person of confidence for the purposes

1 of search and interpretation and so on, didn't you?

2 A. Sanda Mucic was not used as a person of confidence at

3 Taubergasse 15, Door 10. Rather, as the search warrant

4 -- the search warrants, rather, all related to Mucic

5 and he lived at Door 10, no person of confidence was

6 used for the search. Sanda Mucic was indeed present,

7 but with regard to the Niederschrift, she didn't sign

8 that. Now I don't know if she was present during this

9 search at Taubergasse 15, Door 10 throughout, because

10 she was present during the search at Taubergasse 15,

11 Door 14.

12 Q. Having received information that this man was wanted for

13 war crimes, did you do a check on his background,

14 Mr. Moerbauer?

15 A. These checks were carried out, because in the initial

16 information was simply a request by the court to gather

17 information, which was passed on to us via Interpol.

18 Q. And amongst that information that you checked, having

19 initiated this inquiry, did you check on the number of

20 children that he'd got?

21 A. It was ascertained who was registered with the police as

22 living in the apartment. There were two minors there,

23 who were registered as living there. Now as to whether

24 they were the children of Mr. Mucic or not was not

25 ascertained specifically.

1 Q. You knew he'd got some children, Mr. Moerbauer, didn't

2 you?

3 A. Yes, I knew that.

4 Q. There was a reasonable chance that the minors referred

5 to living at that address were going to be his children;

6 isn't that right?

7 A. Now when we initially made contact at Door 10, the first

8 thing we saw, Mr. Mucic -- we saw the daughter. We did

9 not on that occasion see his son and it could not be

10 ruled out that these individuals might not be living

11 there in actual fact.

12 Q. You'd had this place under observation for how long,

13 Mr. Moerbauer?

14 A. As far as I can recall we began on 14th March with the

15 observation. First, it was on a small scale and then

16 there were additional officers involved.

17 Q. And no doubt because you were interested in not just

18 Mr. Mucic's apartment but other apartments in there,

19 you'd been keeping a note of exactly who had been coming

20 and going, hadn't you?

21 A. No list was kept of who went in or out. There was just

22 Zdravko Mucic and Zejnil Delalic who were the focus with

23 a view to arresting them at an appropriate time.

24 Q. You see, I suggest to you, Mr. Moerbauer, you knew full

25 well this girl was a minor, didn't you?

1 A. Now whether the girl was a minor or not, that's

2 something that was given very little attention. With

3 regard to the investigations, they were about Zdravko

4 Mucic and not about his daughter.

5 Q. This was the girl you were using as an interpreter to

6 explain that he was being arrested for war crimes,

7 Mr. Moerbauer. Are you saying to this Tribunal that you

8 didn't care what age she was?

9 A. The girl gave the impression that she understood

10 everything full well and she was also able to translate

11 the circumstances to him, because you're not talking

12 about that small a child.

13 Q. We're talking about someone of the age who was not

14 allowed to vote, not allowed to do all the sort of

15 things that were adult things to do, Mr. Moerbauer,

16 aren't we?

17 MR. TURONE: Objection, your Honour. Asked and answered

18 already.

19 MR. GREAVES: I would be very grateful if the flow of my

20 cross-examination is not interrupted, please.

21 MR. TURONE: Objections are not interruptions, your Honour,

22 please.

23 MR. GREAVES: You know, because you were able to have a

24 conversation about her being taken into the care of the

25 social services, that she was 16 years old, didn't you,

1 Mr. Moerbauer?

2 A. That was at the end of the search. That's when that

3 issue was addressed with Mr. Mucic, what should become of

4 the children.

5 Q. Let's now talk about the Niederschrift that were

6 obtained in this case, Mr. Moerbauer. The purpose of

7 those documents is what?

8 A. The purpose of the document is to be consistent with the

9 legal provisions. You have to keep these documents.

10 You have to put down the date when the search took

11 place, who conducted the search, who was involved in the

12 search and what the grounds for the search was and what

13 objects were seized.

14 Q. It's not just a form that you can fill out just like

15 that. It's a very important document, isn't it?

16 A. The Niederschrift is a form and would be possible to

17 fill it out entirely in handwriting without any part of

18 it having been typed beforehand, but it is a very

19 important document without question, yes.

20 Q. And the documents about which you were asked yesterday,

21 those contain serious errors as to dates, don't they,

22 Mr. Moerbauer?

23 A. There were mistakes, yes.

24 Q. And Mr. Mucic on one occasion was asked to sign a form

25 concerning a search at which he had not been present?

1 A. Now in a Niederschrift there's the possibility for any

2 person signing it to make corrections to it. That's

3 why, had he spotted the mistake, he might have brought

4 that to attention. That's a normal procedure, to make

5 changes to a Niederschrift.

6 Q. He can't make corrections about something he hasn't

7 witnessed, can he, Mr. Moerbauer?

8 A. The Niederschrift which Mr. Mucic signed in connection

9 with Taubergasse 15, Door 10, that Niederschrift was

10 drawn up at police headquarters in Vienna and at that

11 time an interpreter was already present.

12 Q. Now would you like to answer the question that I asked

13 you, please?

14 A. The search I carried out in Taubergasse 15, Door 10,

15 Mr. Mucic was present and as far as this record, this

16 form goes, he signed that at police headquarters.

17 Q. Let's move on. There were errors in the recording of

18 quantities of property recovered. That's right, isn't

19 it?

20 A. The errors regarding the videotapes were corrected.

21 There were notes entered into the record and when it

22 comes to seizing the -- when it comes to the searches

23 during which the mistakes were made, I was not present

24 at those searches.

25 Q. Would the three most important facts to be recorded in a

1 Niederschrift be these: the date, the person present at

2 the search and the property recovered during the

3 search? Would those be the three most important facts

4 to be recorded?

5 A. Yes, that's right.

6 Q. So in respect of those three most important facts, there

7 are errors in these documents. That's right, isn't?

8 A. That's right.

9 Q. And inaccuracy renders these documents unreliable as to

10 what happened on 18th March. Would you agree with

11 that, Mr. Moerbauer?

12 A. Well, after the objects had been seized for the Austrian

13 court, that means they are -- can be used for evidence,

14 and it's for the court to decide whether that will be

15 the case or not. Now, the fact of the matter is that

16 an error was made. Whenever you have something on a

17 larger scale like this, mistakes can and do happen.

18 Q. But, as you've conceded, these weren't minor mistakes,

19 were they, Mr. Moerbauer?

20 A. Now the extent to which these errors impact on things,

21 that's something for the court to decide. Now, the

22 form should have been given the right date. I

23 acknowledge that, but the mistake happened. Everybody

24 signed the document. Nobody noticed that a mistake had

25 been made, and before signing, everyone had an

1 opportunity to make corrections.

2 Q. How would you characterise the quality of the

3 record-keeping of Abteilung 1 on 18th March of last

4 year, Mr. Moerbauer?

5 A. Well, Niederschriften usually are done quite thoroughly,

6 as is everything else. Operations are carried out on

7 the basis of the laws in force.

8 Q. The only thing that was thoroughly done on this occasion

9 was to make a thorough shambles of your

10 record-keeping. Isn't that right?

11 MR. NIEMANN: Your Honour, I object to this. Your Honour,

12 this question doesn't call for an answer and in my

13 submission counsel is putting words into the witness'

14 mouth. He said already that the witness agreed that

15 the record-keeping was less than satisfactory and there

16 was such agreement from the witness at all stages. I

17 submit this question merely amounts to arguing with the

18 witness and is progressing the matter no further.

19 JUDGE KARIBI WHYTE: I think that's a conclusion.

20 MR. GREAVES: Let's move on, Mr. Moerbauer, to his arrival at

21 police headquarters. What time was it that he arrived

22 there?

23 A. We arrived between 4.30 and 5.00 in the afternoon.

24 That's when we reached the Vienna police headquarters.

25 Q. Is this right, that as far as you were concerned

1 Mr. Mucic was your prisoner?

2 A. He was not my prisoner. He had been arrested pursuant

3 to a court-issued warrant of arrest.

4 Q. Who is in charge of him, Mr. Moerbauer? It cannot be

5 nobody, can it?

6 A. Now with regard to responsibility for the arrest, that

7 lies with the officers carrying it out. This goes for

8 the way the arrest is carried out, acting consistent to

9 the legal provisions and acting in conformity with the

10 Code of Criminal Procedure. Now, the responsibility is

11 with the senior most officer involved in the

12 operation. So he is in charge of supervising the

13 operation.

14 Q. Who was in charge of supervising Mr. Mucic, not the

15 operation, Mr. Moerbauer?

16 A. In the office at police headquarters Mr. Gschwendt was

17 present. He's an officer in Division 1. He had the

18 responsibility there. Now with regard to the activities

19 outside the headquarters, the team leader was my

20 colleague, Panzer.

21 Q. So is the answer to the question that Mr. Gschwendt was

22 in charge, physically in charge of Mr. Mucic?

23 A. First Lieutenant Gschwendt at the time was responsible

24 for the operation.

25 Q. Who put him in Room 331, Mr. Moerbauer?

1 A. I was along and brought him to Room 331 but I can't say

2 who else was along, whether it was Panzer. It may also

3 have been Borlak or Bycek who went upstairs from the car

4 with us.

5 Q. Who was responsible for his safety and his security as a

6 prisoner?

7 A. Both officers were responsible for the security, the two

8 officers who were along with him. The seniormost

9 officer is in charge, but with regard to the prisoner,

10 both officers are responsible.

11 Q. Are they also responsible for who has access to the

12 prisoner?

13 A. As a rule only persons involved in the operation have

14 access and in this case there were Tribunal people

15 involved, and as far as I know -- rather, that they were

16 present while this was going on in Room 331, and as far

17 as I know this happened with the consent of the

18 investigating judge.

19 Q. During the period between 5 o'clock and 7.30 were you

20 continuously in Room 331, Mr. Moerbauer?

21 A. I was not there throughout, because I also had other

22 activities to carry out in connection with this

23 operation. At 7.30 the interview began and I was

24 present continuously as of about 9 o'clock, that is to

25 say when the interview got to the part entitled about

1 the case, and I was present from that point on until

2 Mr. Mucic was brought to the prison.

3 Q. So throughout the period 5.00 until 7.30 can you help me

4 about this, please: Mr. Mucic was kept continuously in

5 that room, is that it?

6 A. As far as I know he was always in the room, but he may

7 have been moved to the arrest cell at one point or

8 another. If and when I can't recall, but at all events

9 he wouldn't have been there for a long time because

10 I was continuously after a short period coming back to

11 the office and, as far as I can recall, he was always

12 present there.

13 Q. There was a German interpreter, an interpreter for the

14 German language present throughout?

15 A. That was not a German interpreter. Rather, an

16 interpreter for Croatian or Serbo-Croatian. This was

17 the court sworn interpreter.

18 Q. I'm sorry. That was badly asked. An interpreter in

19 order to interpret from the German language into

20 Mr. Mucic's language?

21 A. Yes, that's right.

22 Q. And your superior, Mr. Gschwendt, he was in there from

23 time to time or all the time?

24 A. I know that Mr. Gschwendt was present in the office.

25 Whether he was there from 5 o'clock until 1.15 in the

1 morning, quite frankly I don't recall. He may have

2 been out of the room at times.

3 Q. The OTP representatives, were they in the room

4 throughout that period?

5 A. I only know that after the arrest and the searches, when

6 we came to the offices the people from the Tribunal were

7 not yet there. They arrived some time around 5.00

8 pm. It could have been a little later. At the time

9 the interview began at 7.30, they were no longer present

10 in the office.

11 Q. Did they remain throughout that period in that room?

12 A. During that period I was not always in that room.

13 Q. When you returned on each occasion to the room, Room

14 331, Mr. Moerbauer, were they still there?

15 A. Yes. There were people from the Tribunal there. There

16 was one, sometimes two people from the Tribunal, and we

17 also went to the video room where the videos seized at

18 Mucic's apartment, an attempt was made to copy them, and

19 during that period I did go to -- back to the office,

20 and when I did so, I did see people from the Tribunal

21 there, yes.

22 Q. Did you have anything to do with giving authority to the

23 OTP representatives to speak to Mr. Mucic?

24 A. I had nothing to do with that.

25 Q. And is it right that there were in total four people

1 from the Office of the Prosecution, two investigators,

2 an interpreter and a technical assistant?

3 A. I can recall that there was an interpreter along. Now,

4 whether there were four people or altogether only three

5 I don't recall the exact number. One person was with

6 me in the video room. There may have been a second

7 person of the Tribunal present in the video room with

8 me, but as far as I can recall there should have been,

9 yes, four people.

10 Q. Are there any rules in an extradition case, any rules in

11 your criminal procedure about foreign police forces

12 having access to prisoners, Mr. Moerbauer?

13 A. As far as I know, the involvement of the people of the

14 Tribunal in this operation had received the consent of

15 the investigating judge. I don't know what the grounds

16 were, and I doubt that the investigating judge was

17 breaking an Austrian law in doing so.

18 Q. Do you know the names of the people who were present in

19 the room, Mr. Moerbauer?

20 A. I do not know the names. I can only remember

21 specifically the interpreter, but as far as the names

22 go, I don't know the names of the other persons.

23 Q. Well, didn't you keep any sort of record who had access

24 to this man?

25 A. I don't know whether there's any note in the records

1 about this. There may well have been a note entered

2 into the record about this, but I didn't enter any

3 such. It was entered in the report that on 20th March

4 videotapes were handed over to representatives of the

5 Tribunal, but other than that there is nothing in the

6 documents I drew up about it.

7 Q. Did Austrian police officers remain in the room

8 throughout, at least one?

9 A. As far as I know, as long as Mr. Mucic was in the room

10 there was always an Austrian police officer in the room

11 together with Mucic and the interpreter. That's what I

12 saw each and every time I came in.

13 Q. And is that the team of four of you: yourself,

14 Mr. Panzer, Mr. Bycek I think his name is and Mr. Borlak,

15 one of those?

16 A. All of the persons were present at one time or

17 another. I recall that Mr. Panzer spent most of -- was

18 the one who spent the most time in the office during

19 that period.

20 Q. Do you know these three colleagues of yours very well,

21 Mr. Moerbauer?

22 A. I spend a lot of time with Bycek, Panzer, etc. Borlak

23 also, he spend a fair amount of time in our office as

24 well, so I do spend a lot of time with these officers.

25 Q. Are they fluent in English or are they English speaking,

1 any of the three?

2 A. As far as I know Mr. Gschwendt speaks excellent

3 English. Mr. Panzer speaks good English as well and

4 Bycek speaks some English, enough to get by. With

5 regard to Mr. Borlak, I don't know how much English he

6 happens to know.

7 Q. Does any of them know French?

8 A. I don't know.

9 Q. Or Serbo-Croat?

10 THE INTERPRETER: Sorry?

11 MR. GREAVES: Or Serbo-Croat?

12 A. None of these individuals speaks Serbo-Croat.

13 Q. And also in that room, Room 331, were all the items that

14 had been recovered and taken by the police; is that

15 right?

16 A. Yes, that's right.

17 Q. How big is Room 331, Mr. Moerbauer?

18 A. 30-35 square metres approximately.

19 Q. And occupied, what, completely by desks or what?

20 A. There are four desks there and there are some

21 cabinets. Those are the objects that are in that room,

22 but it was rather cramped when the people from the

23 Tribunal were there.

24 Q. Where was the seized material placed?

25 A. The seized material was in that room in the containers

1 in which they were brought there, that is to say that at

2 that point in time they had not been locked into a

3 cabinet.

4 Q. On one of the four desks or on more than one of the four

5 desks?

6 A. Now whether they were on a desk or on the floor I can't

7 really say. I don't recall.

8 Q. So they hadn't been properly secured at that time. Is

9 that what you're saying?

10 A. As far as I know, there was always someone in the room,

11 so they had, in fact, been secured.

12 Q. They hadn't been put into a locked cabinet, had they?

13 A. At that point in time not yet.

14 Q. Who exactly went to watch the videos of the people from

15 the OTP?

16 A. As far as I can recall, it was a smaller gentleman with

17 glasses, as best as I recall, but I'm afraid I can't

18 give you his name.

19 Q. Did anybody go to watch with them, any of your

20 colleagues?

21 A. As to whether a colleague was also along, I can't

22 remember.

23 Q. I asked you earlier about your prior knowledge of the

24 case prior to interviewing this man. Did you get any

25 further briefing from the representatives of the OTP

1 prior to interviewing him?

2 A. From the Tribunal or from people of the Tribunal, no, I

3 received no further information.

4 Q. Did any of your colleagues who conducted the interviews

5 receive any such briefing?

6 A. Not as far as I know.

7 Q. So you were just going to rely on the short documents

8 that you'd seen?

9 A. Yes, that's right.

10 Q. Now, at 7.30 in the evening the procedure of taking a

11 statement from him was commenced?

12 A. Yes, that's right.

13 Q. By that stage he'd been at the very least up for some

14 eight or nine hours; is that right?

15 A. That's right, yes.

16 Q. And in the meantime he'd been arrested, his house had

17 been searched and his 16 year old daughter had become

18 involved in your investigation. He'd been taken to the

19 police headquarters, detained and various formal

20 procedures begun in respect of him; is that right?

21 A. In a nutshell, yes, as you put it.

22 Q. Apart from Mr. Mucic -- I'm sorry. Let me start that

23 again. The document that was signed after midnight was

24 signed by five people. Do you remember that?

25 A. Yes. A number of documents were signed at the office

1 after the arrest and then after the interview documents

2 were signed as well.

3 Q. Is that because all five people took part in the

4 interview at some time or another?

5 A. That's right. It's for self-protection reasons that

6 all the persons who participated in the interview signed

7 the Niederschrift.

8 JUDGE JAN: I just want a clarification. When you talk

9 about office, do you mean room number 331?

10 A. Yes, that's right. Room 331.

11 MR. GREAVES: Is it also this, that five people took part in

12 the interviewing of Mr. Mucic at some time or another

13 during the four and three-quarter hours that followed?

14 A. Now with regard to the questioning, the part about the

15 individual was done by Borlak. The part about the case

16 was done by myself. I put the questions via the

17 interpreter and the three other individuals who signed

18 the record were in the same room at certain periods of

19 time during the interview, during the questioning.

20 Q. Why did it need so many people to interview this one

21 man, Mr. Moerbauer?

22 A. The questioning was carried out by only two individuals,

23 Mr. Borlak and myself, and it was on a one-on-one

24 basis. Only Mr. Borlak and myself put questions to

25 him. The other three persons who signed the record

1 were in the room at the time and the interpreter signed

2 the record as well.

3 Q. So why did you need more than just yourself and your

4 colleague to do this interview, Mr. Moerbauer?

5 A. That is done because often in trials it occurs that the

6 accused at the trial says that he was hit during the

7 questioning. This is why all the persons who were

8 present during the questioning signed that record.

9 Q. Of course, if you audio recorded or video recorded this

10 interview, there would be no scope for such complaints,

11 would there?

12 JUDGE JAN: But he said yesterday the video facility was

13 not available in his office.

14 JUDGE KARIBI WHYTE: That was the answer to Ms. Residovic.

15 MR. GREAVES: I would like him to answer, please, if your

16 Honour would be so kind.

17 A. We do not have the technical facilities to make a video

18 recording of such questions. We have a piece of video

19 equipment, but we don't have a video camera, and that's

20 not provided for, and I am not aware of video recordings

21 of interviews being used in court.

22 Q. Is it normal to have four people interviewing a suspect

23 in Austria, Mr. Moerbauer?

24 MR. TURONE: Objection, your Honour. Asked and answered.

25 MR. MORAN: Excuse me, your Honour. We have been having a

1 procedure this afternoon that's quite irregular both for

2 this Tribunal, as I understand it, and for the other

3 courts in which I practised, where there seems to be two

4 lawyers on one side bouncing up and down and making

5 objections. It has been the procedure so far here, I

6 think, and the procedure in every other court where I've

7 ever practised that one lawyer handles one witness,

8 presuming that the lawyer isn't disabled or something.

9 Has there been a change in that practice or is it

10 becoming a regular practice here? If it is, it's fine

11 with me. I just want to find out what the procedure

12 is.

13 JUDGE KARIBI WHYTE: I don't think it's even the procedure

14 here. We've already indicated in this Trial Chamber

15 that Mr. Grant Niemann is just coming into the picture.

16 I think that's why it's happening. Ordinarily we have

17 always stated here that you have the lead counsel. If

18 he is in charge, he takes over. If the co-counsel is

19 questioning, he is in charge. That's the procedure

20 here.

21 MR. MORAN: That's what I thought, too. I just wanted to

22 make sure I was correct in that.

23 MR. GREAVES: Mr. Moerbauer, there were four people present

24 in this room in order to intimidate him, weren't there?

25 A. This witness was not intimidated. The only questioning

1 was done by Borlak, the interpreter and at times the

2 other persons were present in the room, and, in fact, we

3 had a good basis for good discussion with Mr. Mucic and,

4 as said, he was not intimidated.

5 JUDGE KARIBI WHYTE: I think we'll go for a break now and

6 come back at 4.30.

7 (4.00 pm)

8 (Short break)

9 (4.30pm)

10 (Witness re-enters court)

11 (Interpreter re-enters court)

12 JUDGE KARIBI WHYTE: Mr. Greaves, you can continue.

13 MR. GREAVES: Thank you very much, your Honour.

14 Mr. Moerbauer, what was the means of recording Mr. Mucic's

15 statement, please?

16 A. The typewriter, that is to say text processing machine

17 was used, that is to say you could see what was being

18 written on the screen. The question was put via the

19 interpreter to Mr. Mucic and then his answer and the

20 question were written down.

21 Q. Are we talking about a computer with a word processing

22 programme or a dedicated word processor?

23 A. It's a text processing typewriter with a screen where

24 you can read along the whole page, and at the end of the

25 interview, at the end of each page there's a print-out,

1 and there's a possibility as regards the contents of

2 storing it on a floppy disk.

3 Q. Apart from the record that was made obviously on the

4 text processor, were any written notes made of the

5 conversation which took place by anybody?

6 A. There is the possibility when the printed-out pages are

7 submitted for signing that changes can be made in

8 handwriting, and usually the line where a change is

9 made, next to that line I think the signature is

10 affixed.

11 JUDGE KARIBI WHYTE: That was not the question. Can a

12 person make handwritten notes?

13 MR. GREAVES: Thank you very much, your Honour.

14 A. As far as I know, no handwritten notes were added to the

15 Niederschrift, the record. Interview.

16 Q. I'm talking -- I'm sorry. I'm talking about notes

17 quite separate from the record in the text processor.

18 Were there any such notes made and, if so, by whom?

19 JUDGE KARIBI WHYTE: If possible simultaneous with the

20 processor?

21 A. Nothing further was written. Now perhaps the

22 interpreter might have made a few notes for translation

23 purposes. I don't know. But with regard to the

24 questioning, that went into the text processing machine

25 and no other notes were made by the police in relation

1 to this interview.

2 Q. The record of that interview that you signed and have

3 identified, is that a verbatim account of what was said

4 by the questioner and Mr. Mucic?

5 A. I put the question to him in German. The interpreter

6 translated the question, and the reply by Mr. Mucic was

7 in its native tongue, and the interpreter translated

8 that back into German, and then that was typed into the

9 Niederschrift, the record of the interview.

10 Q. Is that the procedure that is adopted by all of your

11 colleagues in recording an interview of this kind?

12 A. That is the same procedure that's used, yes.

13 Q. So that all the words that are recorded and set out in

14 that statement, those are in their entirety all the

15 words of Mr. Mucic?

16 A. The wording in the record is the translation provided by

17 the interpreter.

18 Q. Let's just get this absolutely clear. Do you

19 understand the word "verbatim"?

20 A. It is written up in the form in which it is given by the

21 interpreter.

22 Q. Let's just move on to this point, please,

23 Mr. Moerbauer. Bearing in mind that by the time the

24 interview started he'd been up for some eight or nine

25 hours and had been in custody for four and three quarter

1 hours, did you or any of your colleagues at any time

2 during the course of that interview enquire whether he

3 was tired?

4 A. The question whether he was tired, I don't know whether

5 it was put to him by colleagues. I didn't put it to

6 him, but he was asked whether he would like something to

7 eat or something to drink.

8 JUDGE JAN: Just one question here. What was appearing on

9 the screen was in German?

10 A. Yes, that's right.

11 JUDGE JAN: So he had no opportunity to see what was coming

12 up on the screen, because he doesn't know German

13 himself?

14 A. Now on the screen all that is indeed in German. Then

15 there's a print-out. Then that's translated back by

16 the interpreter, and after that the person questioned

17 has to sign each and every page of the Niederschrift, of

18 the record of the interview.

19 MR. GREAVES: Bearing in mind that the interview continued

20 on into the early hours of the morning of 19th March,

21 Mr. Moerbauer, why didn't you enquire if he was tired?

22 A. Mr. Mucic was given the possibility to state his views

23 about the charges against him, and it might actually

24 have led to a shortening of the time he might have spent

25 in custody, because this is passed on to the judge and

1 he might have applied for release from custody.

2 Q. Now would you like to answer the question that I asked

3 you, please?

4 JUDGE KARIBI WHYTE: You did not ask him whether he was

5 tired?

6 A. That question was not put to him and at no point in time

7 during the interview did he say he was tired. It was

8 only at the end of the interview that he said that he

9 was tired, and that's when at all events he was being

10 brought to police custody.

11 JUDGE KARIBI WHYTE: What counsel is saying, that he has

12 been on for so long in the interview, why did you not

13 ask him whether he was tired, because he'd spent a long

14 time?

15 A. I didn't consider the possibility that he might be

16 tired.

17 MR. GREAVES: You ignored --

18 JUDGE KARIBI WHYTE: I suppose that's your answer.

19 MR. GREAVES: So during the course of that interview it

20 never occurred to you, this interview which had lasted

21 four and three quarter hours, that he might be tired at

22 all. You'd never considered that possibility?

23 A. At that time no. All of us were pretty tired, but ...

24 Q. Quite, Mr. Moerbauer. He was bound to be tired, wasn't

25 he?

1 A. He must have been tired, yes. That's quite right.

2 Q. You carried on this interview regardless of that?

3 A. Mr. Mucic was interviewed with a view to possibly

4 shortening the time he might spend in custody.

5 Q. So by interviewing him for four and three quarter hours

6 until he's very tired, you might help him to shorten his

7 time in custody. Is that what you're telling us?

8 A. The time in custody might have been shortened if in the

9 course of the interview it emerged that there were no

10 grounds for arrest. The contents, or rather the record

11 of the interview itself was passed on to the judge the

12 next day, so on that basis the judge could have decided

13 to terminate or shorten the period of custody.

14 Q. And so the fact that the contents were going to be

15 passed on to the investigating judge, that makes it all

16 right for you to carry on interviewing a man even when

17 he's very tired. Is that what you're saying?

18 A. The arrested person, according to the Code of Criminal

19 Procedure, is to be questioned in relation to the

20 grounds for his arrest, and that's what was done.

21 Q. And that's the Austrian law, isn't it, Mr. Moerbauer?

22 A. In Austrian law it says that he is to be questioned in

23 regard to the reasons of arrest.

24 Q. The document that was signed, it was signed by all of

25 you, you and your colleagues?

1 A. The record was signed by all of the persons who were

2 present at one point in time or another during the

3 interview.

4 Q. And by signing it, you are taking responsibility for the

5 entire document, are you?

6 A. By signing it, what is happening is you are ascertaining

7 that those people were present at the interview.

8 Q. Did you read it before you signed it?

9 A. Yes. The document was read through and it was written

10 in part by me.

11 Q. Would your Honour just give me a moment please? One of

12 the sections in the interview, Mr. Moerbauer, was to

13 establish his personal circumstances, wasn't it?

14 A. Yes, that's right.

15 Q. Amongst the information that you were able to establish,

16 did you establish whether or not he was qualified in

17 Austrian law at all?

18 A. I did not conduct the part of the interview entitled

19 "about the individual". I took over at the part that

20 begins about the case.

21 Q. Yes, but you read through the record of the interview.

22 Did any part of that suggest that he was qualified in

23 Austrian law, and in particular in criminal law and

24 procedure?

25 A. Regarding any qualification, I don't believe there's

1 anything in the record about that.

2 Q. Can you help us as to how Mr. Mucic might have said to

3 your colleague that the search warrant and arrest

4 warrant were lawful ones?

5 A. Now, how the colleague went about this is something

6 I can't comment on.

7 Q. Just remind us of the name of the man who was conducting

8 that part of the interview?

9 A. The question about the individual was conducted by my

10 colleague Borlak.

11 Q. And you've told us that the procedure means that

12 everything which is said by the accused man, the

13 suspect, that's what gets into the report?

14 A. As a rule everything is taken down. Now in this case

15 it was on a question by question basis, and when a

16 question was answered, the answer was written down in

17 the Niederschrift.

18 Q. Mr. Moerbauer, I suggest that at the end of the interview

19 you failed to warn him of his right to correct any

20 mistakes, although you may well have told him he could

21 add anything. That is right, isn't it?

22 A. As a rule for each and every individual, for every

23 record, every suspect is -- everyone who is questioned

24 has the possibility to make changes or additions. The

25 interpreter was certainly told by me to tell him that.

1 As regards the extent to which she did so, I can't say,

2 but, as said, she was a court sworn interpreter.

3 Q. You see, what I suggest to you is that the record you

4 have produced is, in fact, not an accurate record of

5 what was said by Mr. Mucic, and that at the end of the

6 interview when he read the document over, he asked to

7 correct something?

8 A. I cannot remember anything along those lines.

9 Q. He was by now a man who was desperately tired, I suggest

10 to you?

11 A. It's possible that he was tired. We were all quite

12 tired.

13 Q. When he read the document over, he did want to correct

14 something I suggest to you, Mr. Moerbauer.

15 A. I'm not aware that Mr. Mucic wanted to change anything in

16 the record of the interview.

17 Q. Well, I go further than that. I suggest that you

18 simply refused to allow a correction, and told him he

19 would get out of the place quicker if he signed it as

20 soon as possible.

21 A. That is not true.

22 Q. You never gave him any food. You never gave him any

23 drinks. You never offered him any breaks in the

24 interview, did you?

25 A. That is not true. Mr. Mucic was given something to

1 drink. He didn't want anything to eat and at the end

2 of the interview a colleague gave him a sandwich and an

3 apple.

4 Q. Just help me about this. Did you know what was being

5 interpreted by the interpreter?

6 A. I can only say I put the questions. As regards the

7 answers -- let me go back a bit. The questions were

8 translated by the interpreter. Mr. Mucic's answers were

9 translated by the interpreter, and then that's what was

10 written down in the record.

11 Q. Did you check the record to see if it accorded with your

12 recollection?

13 A. The record was read once again on the screen. I have

14 the whole page before me. There is sometimes mistakes,

15 typing mistakes. Those are corrected. Then there's

16 the print-out. I read it. The interpreter translates

17 it and gives it to the interviewee for signing. That's

18 the procedure and that's what happened in this instance.

19 Q. I would like to move on, please, to 20th March, when you

20 permitted a lawyer from the Office of the Prosecution to

21 speak to the investigating judge -- do you recall that

22 -- either of the Tribunal or of the OTP?

23 A. I'm not aware of anything about that.

24 Q. I think you told us either yesterday or the day before

25 about an Afrikaner lawyer with a surname called

1 Dutoit. Do you remember recording a conversation over

2 the telephone with the judge?

3 A. It was on 20th March. Mr. Dutoit of the Tribunal was at

4 our office and he was given the videotapes that had been

5 seized. This was after consultation with Dr. Seda, the

6 investigating judge, and that consultation took place by

7 colleague Bycek over the phone. Mr. Dutoit also spoke

8 via the telephone with Dr. Seda. Bycek wanted a written

9 confirmation about the conversation with the

10 investigating judge. The latter declined for time

11 reasons, and in this regard Mr. Bycek drew up a note.

12 He made an entry in the record. As far as I know,

13 Mr. Dutoit was not a lawyer but an investigator.

14 THE INTERPRETER: The interpreter did not quite hear whether

15 Mr. Moerbauer was present at that -- he was present at

16 that phone call by his colleague, Bycek.

17 MR. GREAVES: No doubt my colleagues for the Prosecution can

18 tell us what Mr. Dutoit's status is, but you permitted

19 this man to make representations to the judge, did you?

20 A. Mr. Dutoit spoke to the judge over the phone.

21 Q. Was the conversation in English or German?

22 A. I can't quite remember that.

23 Q. Was Mr. Mucic informed of this conversation,

24 Mr. Moerbauer?

25 A. I had no further contact with Mr. Mucic after he was

1 transferred to the prison on the 19th. As to whether

2 he was informed of that conversation or not, I cannot

3 say.

4 Q. And you can't say whether he was given an opportunity

5 himself to address the judge in the way that the

6 Tribunal's representative had been able to; is that it?

7 A. With regard to that conversation, I do not know, but in

8 the course of the interview Mr. Mucic was informed that

9 the following day, that is to say on 19th March, there

10 would be questioning by the investigating judge.

11 Q. Would Mr. Mucic have been allowed to speak to the judge

12 in the way that the Tribunal's representative was, if

13 he'd asked?

14 A. Mr. Mucic had the conversation or, shall we say, that

15 conversation on 19th March.

16 Q. Do you consider it was fair to have allowed the

17 Tribunal's representative to speak to the judge when

18 Mr. Mucic wasn't going to be able to do so or know

19 anything about it?

20 A. This was a decision by the investigating judge and the

21 decisions of the investigating judge were simply taken

22 note of.

23 Q. My final question is this, Mr. Moerbauer. As far as the

24 documents which were recovered on 18th March were

25 concerned, you confirmed that not one of them was ever

1 analysed by way of handwriting expert examination?

2 A. On the part of the police, that is to say the Vienna

3 Police Department, no such handwriting analysis was

4 carried out.

5 Q. So all that you can say is that so many documents were

6 recovered, and you can say nothing about the authorship

7 of any one of them?

8 A. You could put it that way, yes.

9 Q. As far as matters of continuity are concerned, I adopt

10 the cross-examination of my learned friend Ms. Residovic

11 and I have no further questions. Thank you very much,

12 your Honour.

13 MR. ACKERMAN: I know this will pain everyone in the

14 courtroom, but I have no questions.

15 JUDGE KARIBI WHYTE: We anticipated you would have none.

16 JUDGE JAN: Just one question. What time did you lock up

17 all the papers and the videos you had collected and

18 Panzer had collected and Unger had collected and

19 Mr. Navrat had handed them over to you? What time did

20 you lock them up in your cabinet?

21 A. That was prior to Mr. Mucic's transfer to the prison

22 facility.

23 JUDGE JAN: That is about 1.30 am?

24 A. About 1 o'clock, yes.

25 JUDGE KARIBI WHYTE: Any re-examination?

1 MR. TURONE: Your Honour, we have no further questions for

2 re-examination. We only have to talk about then our

3 tendering of exhibits for the time being. As I already

4 stated before, we seek to tender now for the time being

5 the exhibits -- well, first of all, we have to go back

6 to our original intention as far as --

7 JUDGE KARIBI WHYTE: I have a simple question to ask. Now

8 you said at the conclusion all of you were tired,

9 including yourself?

10 A. Yes, that's right.

11 JUDGE KARIBI WHYTE: Actually at what stage did you feel

12 that tiredness, both yourself and the person being

13 questioned, because you admitted you were all tired?

14 A. When I was tired, well, it was in the evening hours.

15 An interview, keeping a record, it's a very tiring

16 business. Towards the end of the interview I dare say

17 I was quite tired indeed, but it's not -- it wasn't to

18 the point that I didn't know what I was saying or what I

19 was doing. I still had myself under control.

20 JUDGE KARIBI WHYTE: But you continued with the exercise?

21 A. Well, they were only questions in respect of which

22 Mr. Mucic could give his point of view and, as said, his

23 answers might well have shortened his period of

24 custody. An attempt was made to give him an

25 opportunity to understand the grounds of arrest with the

1 possibility also of doing away with those grounds,

2 making them unfounded, and the outcome of that interview

3 was transmitted to the court.

4 JUDGE KARIBI WHYTE: Did he indicate to you at any stage he

5 was tired?

6 A. After the interview was over he did say yes, he was

7 tired, and that's also when he was taken into the police

8 prison.

9 JUDGE KARIBI WHYTE: Thank you very much.

10 MR. TURONE: As I was telling, the Prosecution has to go

11 back to its original intention of tendering for

12 admission also the big document numbered as number 104,

13 the report, the index, for the simple reason that the

14 witness was challenged as to the capability of him -- of

15 identifying the seized documents one by one. We want to

16 emphasise anyway that we seek to tender this document

17 not for the truth of the single Ausvertung, the single

18 analysis, the evaluation of the single documents. We

19 only want to tender this document because it shows the

20 system for identifying the documents which this witness

21 could follow. It will show the grounds on which he

22 could actually be in a position of identifying every

23 single document for the simple reason that the numbering

24 of the documents inside every file was reflected in this

25 report. So this is why we are going to tender this

1 document for admission. Furthermore, of course the

2 witness signed the documents in every subsection.

3 Then we tender for admission documents 105, 106,

4 107 and 108 for the time being, which are the two

5 passports seized by this witness in the apartment of

6 Mr. Mucic, the pass for the War Presidency in the name of

7 Mr. Mucic, 107, and the military ID card of HVO of

8 Mr. Mucic, which is 108. Then we tender for admission

9 the police interview numbered as 145 and, of course, we

10 tender for admission the search record numbered as 151,

11 which is the search record concerning the house search

12 in the apartment of Mr. Mucic, which was carried on

13 personally by Mr. Moerbauer. Thank you.

14 MR. ACKERMAN: Your Honour, it seems to me that the

15 Prosecution has -- I don't know -- three or four

16 additional witnesses that they are now bringing with

17 regard to all these matters. It seems to me the

18 appropriate time for the Prosecution to tender documents

19 for admission and for the defence to respond is after

20 we've heard all the witnesses rather than doing a kind

21 of piecemeal at the close of direct, at the close of

22 cross with every witness, trying to tender things.

23 This is all intertwined. I think it all ought to be

24 handled at once. Then the court could hear all the

25 arguments at once and deal with it all at once. That's

1 just a suggestion on procedure, your Honour.

2 JUDGE KARIBI WHYTE: Mr. Turone, you remember you have given

3 an undertaking that many of these documents can only be

4 tendered through some of the subsequent witnesses you

5 are calling.

6 MR. TURONE: Yes, your Honour. All the other documents,

7 but these few documents are not connected to either the

8 search in Inda-Bau or the search in Delalic's apartment,

9 and this is why we thought that only these few documents

10 are not connected with the matter which must be covered

11 by the other police -- the Austrian police.

12 JUDGE KARIBI WHYTE: Are some of these documents not from

13 the bag in which the documents were brought?

14 MR. TURONE: The four documents, 105-107, were seized by

15 Mr. Moerbauer personally in the apartment of Mr. Mucic,

16 and so they have nothing to do with the search in

17 Inda-Bau and with the house search in the apartment of

18 Mr. Delalic. This is why we are for the time being

19 talking about four seized documents only, because these

20 four seized documents are not connected to anything

21 which has to be asked to future witnesses belonging to

22 the Austrian police. This is the reason why we -- our

23 intention, our submission, is to tender immediately

24 these few documents for the time being, leaving all the

25 rest of the about 47 numbered exhibits, numbered items,

1 to the future. This is our submission. Thank you.

2 JUDGE KARIBI WHYTE: Mr. Olujic?

3 MR. OLUJIC (in interpretation): Thank you, your Honours.

4 In this phase of the proceedings I contest the approach

5 of my learned colleague on the Prosecution. He's

6 trying to put together a mosaic which is not relevant at

7 this stage, while all the controlling facts regarding

8 the testimony of this witness are still to be

9 investigated through other witnesses that will be

10 brought by the Prosecution, so that this piecemeal

11 presentation of evidence I think is not appropriate, and

12 the defence of Mr. Mucic strongly objects to it.

13 JUDGE KARIBI WHYTE: Yes, Mr. Moran?

14 MR. MORAN: Yes, your Honour. I have a problem with

15 Exhibit 104. That thing is full of: "This document

16 means that". "This document means something else".

17 It's full of references to documents that I haven't seen

18 that surely aren't part of the record of this trial.

19 Judge, it's just not relevant, or at least a lot of it

20 in there is not relevant. The Prosecution wants to

21 attempt to redact it, to redact out the opinion, to

22 redact out references to documents that haven't been

23 presented to the court, that type of thing, it would be

24 a different story, but right now that document's just

25 full from front to back of things that are irrelevant

1 and probably even if they were relevant, would be

2 inadmissible in any case.

3 MS RESIDOVIC (in interpretation): Your Honours, I should

4 like to join my learned colleagues in their objections

5 and to say that I object to any of the tendered

6 documents being admitted as evidence. Regarding the

7 submission for the acceptance of various reports listed

8 under point -- registered under 104, these are police

9 reports. They are analyses of evidence which are not

10 part of the court file. For this very reason they are

11 inadmissible as evidence.

12 On the other hand, in a very thick part of the

13 file are reports signed by various persons and not just

14 by this witness, and therefore for that reason too they

15 are inadmissible and premature. Finally, they contain

16 a number of illogical allegations which will probably be

17 removed later on in the proceedings. However,

18 regardless of that, I think that the police records

19 cannot be partially evidence, as proposed by colleague

20 Turone, whereas they would not be admitted as evidence

21 for some other things.

22 I also object to admitting as evidence other

23 objects offered, registered under 105, 106, 107, 108,

24 145 and 151, since in the course of the testimony of

25 this witness it has been established without any doubt

1 that in the case of the search of Mr. Mucic's apartment,

2 attended by this witness, a number of irregularities

3 occurred and unlawful acts according to the Austrian

4 law, ranging from the date on the Protokoll, the facts

5 contained in that Protokoll, the fact that it was not

6 signed on the spot, but later on in the police station

7 and so on. Therefore, these documents, too, in the

8 collection of which this witness participated, though he

9 apparently was in five different places at the same

10 time, we feel that this is sufficient ground not to

11 admit these documents as evidence. Thank you.

12 JUDGE KARIBI WHYTE: Do you wish to make a reply?

13 MR. TURONE: Your Honour, my first preliminary reply is that

14 tendering of documents is often done in a kind of a

15 piecemeal fashion, because it depends upon the way the

16 case is going on. So I would like -- may I ask your

17 Honour if your Honours think that this tendering in a

18 piecemeal fashion is possible, then I will go on and

19 give my arguments in response to what I heard my

20 esteemed colleagues from the defence.

21 JUDGE KARIBI WHYTE: Actually you can only tender documents

22 through a witness if he is capable of showing his

23 relationship to that document and how it came to be in

24 existence. If you can show that and without any

25 ambiguity, then you might be able to tender them, but if

1 it's not certain that he could have produced a document

2 or it was never in his custody, it might be difficult

3 for you to do so. So you now try to tender those

4 documents which you think are related to him.

5 MR. TURONE: Exactly, your Honour. My intention is to

6 tender these few documents right now, because I believe

7 that these documents can be tendered through this

8 witness for the reasons which I might explain to your

9 Honours, if you wish, today. If you allow me, I will

10 explain my arguments in response to the defence lawyers

11 now.

12 JUDGE KARIBI WHYTE: Yes. Let's hear you in respect of

13 those documents you think this witness can tender.

14 MR. TURONE: Yes. First of all, as I told already to Mr. --

15 concerning Mr. Moran's objections on document 104, our

16 intention is not to tender this document, to enter this

17 document into evidence as for the truth of every single

18 analysis and evaluation it contains concerning the

19 single documents it describes. It is our submission

20 that this document shows exactly the system the witness

21 followed to classify and study the documents so that it

22 may explain correctly the reason why he is in a position

23 -- he has been in a position to recognise and identify

24 one by one the documents which was submitted to him

25 thanks to the fact that in that report every single file

1 was reflected and the numbering of every single document

2 inside every single file was also reflected, and that is

3 why the witness could -- was in a position to identify

4 those documents. So it is not only an aide memoire,

5 but it is something which now gives us the possibility

6 to show how this witness was actually in a position to

7 do that recognition.

8 On the other hand, we would say in a very general

9 way that Rule 73 requires that an accused who wishes to

10 exclude evidence obtained from him make a motion to that

11 effect preliminarily and in any event prior to trial.

12 Mr. Delalic did this and was unsuccessful. With respect

13 to all evidence seized in Vienna, Mr. Delalic's

14 objections have been ruled on. Surely it's our

15 submission that Rule 73 must have a point to it such

16 that absent --

17 JUDGE KARIBI WHYTE: Actually, without interrupting you,

18 that is not the only exclusionary Rule. There are

19 others. You still have Rule 95.

20 MR. TURONE: I'm going to that.

21 JUDGE KARIBI WHYTE: Do not dwell so much on a matter which

22 is not completely concluded.

23 MR. TURONE: Your Honour, I'm going also to this point later

24 on, but if you allow me to present all our arguments, I

25 would be grateful to you. Anyway, I know that Rule 73

1 is not the only Rule applying in these cases, but may I

2 proceed, please?

3 JUDGE KARIBI WHYTE: Well, you can proceed, but I wouldn't

4 like you to proceed on the wrong foot when, in fact, you

5 know that finally evidence can be excluded if other

6 conditions apply.

7 MR. TURONE: Let me go ahead then, your Honour. Even if

8 the accused had brought any challenges timely, however

9 these objections must anyway fail as set out in Rule

10 89A. This Tribunal is not bound by national laws or

11 rules, but instead is entitled to consider any relevant

12 evidence, as long as it was not obtained by means

13 contrary to internationally protected human rights, or

14 its admission would seriously damage the integrity of

15 the proceedings. For many different reasons this

16 Tribunal does not have strict evidence rules. Instead

17 we believe that questions of admissibility are for the

18 Chamber to decide based on all the circumstances. What

19 may or may not be required or even common in various

20 jurisdictions are not controlling here. So both the

21 search of Mr. Mucic's apartment and the statement were

22 obtained fairly and should be admitted, in our opinion,

23 as relevant evidence. Of course, the Trial Chamber

24 shall determine what weight they should be given,

25 depending on the actual material as well as the

1 circumstances.

2 Let's say something on the scope of the search

3 warrant. The search warrant has a very general

4 wording, too. It says about objects, the possession or

5 sight of which could be significant for the proceedings

6 in question. In the search warrant the judge says:

7 "Documents about war crimes in Bosnia and

8 Herzegovina". This is a general expression indicating

9 any document which might be relevant for the future

10 investigation and prosecution of war crimes, even if

11 they don't show directly a specific war crime having

12 been committed. Even as for tortures, the search

13 warrant says in particular the search seeks to find out

14 anything concerning directly torture, but this does not

15 -- this means that the general expression "objects the

16 possession or sight of which could be significant for

17 the proceedings", documents about war crimes. These

18 general expressions are not nullified by this particular

19 mention in the search warrants. Since the position of

20 the accused inside the armed forces of

21 Bosnia-Herzegovina and their possible command

22 responsibility are an issue strictly connected to the

23 matter of the war crimes for which they are accused, any

24 document showing their position in the armed forces

25 which was lawfully seized within the scope of the search

1 warrant is admissible, in our submission. This applies

2 to documents 107 and 108 in particular, which show

3 Mr. Mucic's possibility to enter the premises of the war

4 presidency and his position inside HVO.

5 The two passports are relevant not only for the

6 relationship itself between Mr. Mucic and the apartment

7 in which they were seized, but also for some -- with

8 respect to his alibi defence, which implies at least an

9 alleged trip of Mr. Mucic outside the former Yugoslavia

10 in the period of time relevant for this trial, and I

11 emphasise that both passports were valid for 1992.

12 Briefly, the search of Mucic's apartment was done

13 lawfully, in our submission. The police were directed

14 to search Mr. Mucic's apartment by an investigating

15 magistrate pursuant to this search warrant. The

16 police, including Mr. Moerbauer, did so. Certain

17 documents were seized, and the Prosecution has tendered

18 them into evidence. I was saying the search was

19 ordered and executed lawfully. The fact itself that

20 there may have been some technical issues such as the

21 age of the witnesses, for instance, cannot seriously be

22 argued to rise to the level that the admission would

23 seriously undermine the integrity of the proceedings

24 and, indeed, although it is not controlling the

25 Prosecution would note that such would not even be a

1 reason to challenge its admissibility in Austrian

2 courts, and much less in international courts. The

3 provisions argued by the defence could have been

4 violated deal with the manner and way the searches are

5 executed, but do not affect the result or their

6 admissibility at trial.

7 If your Honours wish, our colleague Mr. Stefan

8 Waespi, who has some knowledge of Austrian and

9 international law, better than I, could argue this and

10 provide supporting case law and legal argument. Anyway

11 in the absence of a specific request from your Honours,

12 we would not plan on presenting such further arguments,

13 because it is for us even hardly or scarcely relevant,

14 but if your Honours wish, Mr. Stefan Waespi will be able

15 to give some more legal arguments like that.

16 What is relevant, finally, and I conclude, is the

17 simple question: is the evidence relevant? To this I

18 think everyone must concede yes. Whether consideration

19 of the evidence somehow offends Rule 95, again the

20 answer must be yes. Well, was the search perfect?

21 Well, I would say no. What you have had is a search of

22 numerous locations and an arrest. Because of

23 operational matters everything had to happen earlier

24 than expected. A large amount of material was seized,

25 hundreds of documents and numerous videos. Yes, there

1 were mistakes. Yes, that is a problem. Yes, it is

2 regrettable, but can it be seriously argued that the

3 mistakes constitute violations of fundamental human

4 rights? Can it seriously be argued that the admission

5 of the evidence would seriously damage the integrity of

6 these proceedings? We would say no.

7 At the end, last point, the interview of Mr. Mucic,

8 the statement was taken fairly. Mr. Mucic was advised

9 of his rights, including his right to remain silent, his

10 right to consult an attorney. There was a certified

11 interpreter. Mr. Mucic chose to speak. He was advised

12 of certain facts, which include two non-controversial

13 facts, that if he chose to remain silent he would not be

14 able to give his side of the story and, second, that if

15 he cooperated and was later found guilty the cooperation

16 could be considered mitigation. These facts are true

17 according to Austrian law, and it cannot be argued that

18 telling someone what the law says constitutes improper

19 or unfair inducement. The Prosecution would also note

20 that most systems, including that of this Tribunal, have

21 similar provision in their law. We can then -- we can

22 later provide your Honours with case law from the

23 European Court of Human Rights demonstrating that these

24 warnings are perfectly consistent with the code of human

25 rights.

1 These are my arguments. As I said, if your

2 Honours desire, Mr. Stefan Waespi will have further legal

3 arguments of Austrian and international law. Thank you

4 very much.

5 JUDGE KARIBI WHYTE: Which are the documents you want to

6 tender?

7 MR. TURONE: As I say --

8 JUDGE KARIBI WHYTE: Spell them out.

9 MR. TURONE: As I said, 104, which is the big report, index,

10 not for the truth of the single analysis, but for the

11 system the witness followed to classify documents and

12 for the way through which he could identify them one by

13 one in this courtroom, 104. Number 105 and 106, the

14 two passports of Mucic seized by Mr. Moerbauer in the

15 apartment of Mucic, which were valid in 1992. 107 and

16 108, two ID cards having relevancy as for the position

17 of Mr. Mucic in the armed forces of Bosnia-Herzegovina.

18 Number 148, the police interview, the record of the

19 police interview of Mr. Mucic done starting at 7.30 on

20 March 18th and, last, number 151, which is the search

21 record, the house search record concerning the apartment

22 of Mr. Mucic, which was signed by Mr. Moerbauer, who

23 carried on personally the house search together with

24 three other colleagues.

25 All these documents we believe are not connected

1 at all with what other witnesses from Austrian police

2 will have to say in this courtroom in the next few

3 days. Thank you.

4 JUDGE KARIBI WHYTE: Don't you see that different

5 principles govern different documents?

6 MR. TURONE: Our submission is that these documents are not

7 affected by the issues which must be covered by the

8 other witnesses of the police of Vienna in the next

9 days. This is our submission, your Honour.

10 JUDGE KARIBI WHYTE: Thank you very much.

11 JUDGE JAN: There are five documents which you want to be

12 tendered in evidence. The first is an analysis of all

13 the documents seized from different locations. His

14 analysis is his opinion.

15 MR. TURONE: As I said, your Honour, we are trying to enter

16 this document into evidence not for the truth of the

17 single -- of the analysis of every single document.

18 This applies also to -- some defence lawyer requested

19 the redaction of this document. We believe that a

20 redaction of such a document is not necessary simply

21 because this is not a trial by jury and professional

22 judges are in a position to sift every single piece of

23 evidence and give the concerned value to each one of

24 them, but anyway our intention is to tender this

25 document into evidence not for the content of the single

1 evaluations; just because of the numbering which is

2 reflected in this document and is directly connected

3 with --

4 JUDGE JAN: But how is numbering relevant? How is that

5 numbering relevant? What is its probative value.

6 THE INTERPRETER: Microphone, your Honour.

7 MR. TURONE: I beg your pardon.

8 JUDGE JAN: What is its probative value? The test is

9 relevancy and probative value.

10 MR. TURONE: We do not consider this document to enter into

11 evidence because of the content of every single

12 analysis, but simply because it is a complex document,

13 official documents, with signatures of this witness, and

14 it gives the real idea of how this witness proceeded in

15 the handling of these documents, in the classification

16 of these documents and proves how documents could be

17 identified by this witness.

18 JUDGE KARIBI WHYTE: This witness is capable of tendering

19 them because he has indicated a system through which he

20 did them.

21 MR. TURONE: This is the reason and another reason is that

22 this witness signed this document, so it is a document

23 --

24 JUDGE JAN: He might have signed thousands of documents but

25 show us the relevancy of this document.

1 THE INTERPRETER: The microphone.

2 MR. TURONE: Yes. This is also part of the chain. It goes

3 to the chain, too. It proves how documents can be

4 identified and it goes to the chain of custody.

5 JUDGE JAN: Identified for what purpose? Show us the

6 relevancy -- the probative value of this document, why

7 you want to bury the record with documents which have no

8 probative value.

9 MR. TURONE: Your Honour, this documentary reflects exactly

10 what the witness said as for the classification and

11 numbering of the single documents he could identify.

12 JUDGE JAN: But he has already explained what he has done,

13 but why have that document on the record? He has told

14 us how he classified these documents, but what is its

15 probative value, apart from showing us his method which

16 he has already explained?

17 MR. TURONE: Because there was some challenging of this

18 witness as for the numbering of the single documents

19 inside every file, and since this numbering of the

20 documents inside every file is reflected in the report,

21 we believe that this report might be useful in order to

22 give a better idea of the system followed by the

23 witness, which allowed this witness to identify

24 documents one by one. This is our reason.

25 JUDGE JAN: How are the passports relevant? He had --

1 nobody is saying that Mr. Mucic had no access to

2 Bosnia-Herzegovina.

3 MR. TURONE: The passports might be relevant --

4 JUDGE JAN: Is the case of the defence that he had no

5 access to Bosnia-Herzegovina during the relevant

6 period?

7 MR. TURONE: The two passports, your Honour, are valid in

8 the period of 1992.

9 JUDGE JAN: You are producing them to show that he had

10 access to the area of conflict. There is nothing more

11 than that, or is there any other purpose?

12 MR. TURONE: There is a defence of alibi of Mr. Mucic

13 concerning also travels outside Yugoslavia in the

14 relevant period of time. So these documents may be

15 relevant in that.

16 JUDGE JAN: To rebut a plea of alibi?

17 MR. TURONE: Yes. Yes.

18 JUDGE JAN: As regards his police statement, you have just

19 mentioned that he was informed of his rights of having a

20 counsel, but I think Mr. Gschwendt probably said that

21 right to have a counsel was not available but he was

22 being interviewed by the police. That is what he said.

23 MR. TURONE: That is correct, your Honour. This is one of

24 the items Mr. Stefan Waespi might cover in further legal

25 argument, whenever your Honours deem that useful, if

1 your Honour deemed that useful. Thank you.

2 MS RESIDOVIC (in interpretation): Your Honours, may I

3 speak?

4 JUDGE KARIBI WHYTE: Do you wish to discuss anything? Do

5 you want to make any contribution?

6 MS RESIDOVIC (in interpretation): Yes.

7 JUDGE KARIBI WHYTE: Let us hear it.

8 MS RESIDOVIC (in interpretation): Thank you. First of

9 all, I think that the question of admissibility of these

10 documents is premature. The Prosecution has already

11 proposed and the Trial Chamber has ruled that it will

12 decide on the admissibility of all the exhibits after

13 hearing the witnesses that the Prosecution intends to

14 call. However, your Honours, in addition to that, I

15 wish to apologise to our learned colleagues on the side

16 of the Prosecution, but I think that in the arguments

17 they have offered they are not acting in accordance with

18 -- not acting in a way that could be described as

19 correct by referring to certain rules of our Rules of

20 Procedure and Evidence and to the claim that the rules

21 of a national legislation cannot be applied. I must

22 say that the only system that is in accordance with

23 Article 29 of the Statute regarding house searches and

24 the search and seizure of objects that can be applied is

25 the Criminal Code of Procedure of Austria, as the

1 country which cooperates with the Tribunal, which

2 assists the Tribunal, and which has acted in every way

3 in accordance with Article 29.2 of the Statute of the

4 International Tribunal.

5 Therefore, any attempt to interpret Rule 89B of

6 our rules in any other way in my view is not in

7 accordance with the law of this Tribunal, nor does it

8 strengthen the lawful proceedings in this Tribunal.

9 Both witnesses said that any unlawfulness in the

10 collection of evidence calls in question the acceptance

11 of that evidence. Also I think that the attempt of the

12 Prosecution to try and tender these exhibits as evidence

13 which is premature, let me say again. In doing so they

14 wish to draw attention of the Trial Chamber to the fact

15 that the objections of the defence of Mr. Zejnil Delalic

16 have been rejected. In fact, they are referring to the

17 court Ruling of October 1996, in which it was clearly

18 stated that objects are not returned to the accused,

19 that the Prosecution may use them in preparation for the

20 proceedings, but as to the admissibility of the

21 evidence, that is decided when that evidence is tendered

22 in the proceedings.

23 For these reasons, as well as the reasons given

24 before, it is my claim that it is unacceptable to admit

25 as evidence the reports of the police and notes of

1 policemen analysing those reports, which in the view of

2 the Prosecution itself has no probative value regarding

3 the case. I also think that evidence cannot be

4 tendered which would only provide 5 per cent of the

5 evidence proving a link regarding the lawfulness of the

6 collection of evidence, because the chain, the chain of

7 command can only be confirmed by the witnesses. This

8 witness said what he knew. The other witnesses will

9 show us the chain of custody regarding the way in which

10 evidence was collected. I wish to remind the Trial

11 Chamber that this morning this witness recognised only

12 one document which he had analysed and not seized during

13 his search. To offer indirectly through item 104 the

14 verification of lawfulness which is being disputed is

15 neither timely nor is it proper and that is why I

16 propose that the Trial Chamber assess the lawfulness of

17 the procedure at the end of the presentation of

18 evidence, because any unlawfulness can annul the

19 validity of the evidence, and I think only then can any

20 ruling be made on the admissibility of individual

21 exhibits as evidence. Thank you.

22 JUDGE KARIBI WHYTE: Actually I thought it has been

23 understood that this witness is only tendering those

24 documents he can tender. He's not dealing with

25 documents which other witnesses might still come in to

1 tender. So I don't see why you are spreading the net

2 so wide, including those who are not here, whose

3 relationship to the documents are not involved here.

4 We are only dealing with this witness.

5 JUDGE JAN: Why can't he produce those documents which he

6 himself received from Mucic's apartment?

7 MS RESIDOVIC (in interpretation): Your Honours, document

8 104 refers to thousands of documents, and I do not know

9 why it is being tendered at all as evidence. Some of

10 those the defence may never have seen. Under 104 there

11 is reference to documents and reports that were not

12 drawn up by this witness. There are documents there

13 that the witness says were signed by someone else on his

14 behalf. Actually somebody had forged his signature.

15 The Prosecutor is offering us this document 104 as

16 evidence.

17 MR. MORAN: Judge, let me put on my amicus hat for just a

18 second, because I really don't have a dog in this

19 fight. There has been a couple of things that have

20 been said by the Prosecution and I keep hearing it over

21 and over and over and I think somebody needs to talk a

22 little bit about it, where they say: "Because you are

23 all trained judges, we can just shove in any kind of

24 evidence we want to in here and let you all sort it out

25 later". We do have Rules of Evidence in this

1 Tribunal. Rules of Evidence were adopted by the

2 Tribunal, by the court, admittedly not nearly as

3 restrictive as you might find in some national rules of

4 evidence, but we do have rules of evidence. Right up

5 at the top Rule 89C says you may admit relevant

6 evidence. Well, you've got to start off with that,

7 which it would seem to me would say you don't admit

8 anything that's irrelevant. There are other rules for

9 exclusion of evidence throughout our Rules of

10 Procedure. The Tadic case we have talked about dear

11 knows how many times. It has to have some kind of

12 reliability. It has to have some kind of probative

13 value that's shown outside of itself. Judge, I think

14 at some point the Prosecution ought to -- we ought all

15 to stop saying: "Because we have trained judges here, we

16 can just shove in anything we want and the judges will

17 sort it out later". I think we do have rules of

18 evidence and they need to be followed. You cannot get

19 around them just by that simple matter.

20 MS McMURREY: Your Honours, if I might add just a word. I

21 know I have been silent for many months now. There are

22 also two issues on the admissibility of these documents

23 we are talking about. One is just the basic ability to

24 authenticate them as reliable. The other issue that

25 I believe my learned colleague Ms. Residovic is referring

1 to is she has a motion to suppress that was validly

2 filed whether these were admissible as appropriately

3 seized under the laws of Vienna. Until that issue has

4 been resolved, you can't get them in because maybe they

5 think they have been authenticated. There is still the

6 question of whether there has been legality of search

7 and seizure in that area. All the witnesses have not

8 come forward to present evidence as to whether that was

9 legally seized at that time. Thank you.

10 JUDGE KARIBI WHYTE: Do you want to say anything? Do you

11 have any contribution?

12 MR. OLUJIC (in interpretation): Thank you, your Honours.

13 Very briefly, your Honours, in the response of our

14 learned colleague on the side of the Prosecution, he did

15 not say anything essential that is also relevant except

16 for one thesis, which we will be discussing at length,

17 and that is the question of objective responsibility,

18 Article 7.3. Of course, he tried to do that in order

19 to provide more argument for his submission, but those

20 arguments do not stand, namely I do not see why we

21 should at this stage of the proceedings, when we will

22 yet be hearing other witnesses, and then these exhibits

23 can be tendered as evidence, why is the Prosecution

24 insisting so much on tendering such evidence which, to

25 put it mildly, is incorrect in relation to the defence,

1 because my colleague, pursuant to Article 95, after the

2 90 day period, initiated this proceedings that we are in

3 now.

4 Therefore, the argument of my learned colleague

5 will not be affected by hearing at least three more

6 witnesses, if not more, and then if there are grounds,

7 then this will certainly be admitted as evidence. I,

8 therefore, consider this submission to be irrelevant at

9 this point, that is to make these exhibits evidence

10 now. I would propose that it be done at a later

11 stage. Thank you.

12 MR. ACKERMAN: Your Honour, may I just make a very brief

13 comment about Exhibit 104? It will just take me a

14 second. The Prosecution suggest that that is now

15 admissible because it explains the witness' document

16 numbering system. If the Prosecution thought there was

17 some confusion about that, they had an opportunity to

18 clear it up on re-examination of the witness. Instead

19 of excepting re-examination and trying to make it clear,

20 if they think it's not clear, they have offered this

21 document, which contains a lot of irrelevant material

22 beyond explaining his numbering system. It is kind of

23 needing to define the word "dog" offering the entire

24 dictionary because it is in there somewhere. I think

25 it is inappropriate they couldn't clear it up on some

1 additional cross-examination and take care of it that

2 way and it is not a document that's filled with all of

3 these irrelevancies. Thank you.

4 JUDGE KARIBI WHYTE: Thank you. We will give a ruling

5 tomorrow morning.

6 MR. GREAVES: Could I just mention one matter which is not

7 to do with this. The Prosecution promised us a revised

8 witness list some time ago. We have never received

9 it. We still do need to prepare our cases with the

10 future in mind. Please could the Prosecution provide

11 us with the revised witness list in the light of the

12 events of about two weeks ago, please.

13 JUDGE KARIBI WHYTE: Ms. McHenry, you gave that undertaking

14 that you can produce the precise lists.

15 MS McHENRY: Yes, your Honour. We have told the defence

16 and the Chamber that we will provide a revised witness

17 list as soon as we're able to, and we are, for instance,

18 with respect to the witnesses that are going to appear

19 this week, we've told them those. With respect to any

20 other witnesses, in terms of the specific order, we're

21 unable now to know it, because it depends -- because, to

22 be frank, the old witness list is not so out of date in

23 terms of timing and the witnesses' schedule that that is

24 not possible. We are working with the Victim Witness

25 Unit trying to get in contact with the witnesses and see

1 when they appear. Obviously when things come up, such

2 as the fact that we are now going to call more Austrian

3 police officers than we had anticipated, that also puts

4 things back. It is also the case that certain

5 witnesses have, at least as of now, refused now to come

6 because of the events of the last few weeks. We are

7 continuing our efforts to potentially try to convince

8 some of them to once again come.

9 So other than to say that we will tell them as

10 soon as we know anything, and, for instance, we told

11 them last week about the witnesses this week, I'm afraid

12 we can't give any more detail, but certainly we will do

13 everything possible to give people notice.

14 I'm also supposed to ask just to confirm that this

15 witness may be excused today. He's scheduled to go

16 back. I also don't believe we have an interpreter in

17 any event and I believe cross-examination is finished.

18 So I just formally ask that this witness be excused

19 before we recess. Thank you very much.

20 JUDGE KARIBI WHYTE: Mr. Greaves, you now see the position

21 which everybody hears. I think it depends on the

22 availability of the witnesses, the persons they can

23 confirm.

24 MR. GREAVES: It was not really availability I was concerned

25 about. I wanted to know who is not now coming. You

1 then discard those and you don't concentrate on those.

2 Otherwise I end up just doing things that are useless

3 and pointless.

4 JUDGE KARIBI WHYTE: I suppose the Prosecution will still

5 make efforts to see how you can facilitate the defence's

6 anxiety. It might be difficult for them to keep on not

7 knowing what to face, because, as it is now, they do not

8 know what to do next.

9 MS McHENRY: Well, your Honour, we try to tell them in

10 enough time so that they can prepare. The Prosecution

11 could potentially give an idea of which witnesses we now

12 don't think will come, but we're reluctant to do that,

13 because if next week the witness changes their mind for

14 some reason, I am afraid the defence might then object

15 and say: "Oh, no, you told us this witness wasn't

16 coming". Other than to say we will tell them in

17 sufficient notice, as we have been, for the next couple

18 of weeks, at least we have to know that, because the

19 Victim Witness Unit has to make the arrangements, I

20 think at this point we are unable to do more.

21 JUDGE KARIBI WHYTE: Thank you very much. As I've just

22 said, we'll give our ruling on the submissions tomorrow

23 morning. This witness is discharged. So we will

24 adjourn until tomorrow morning at 10.00.

25 (6.00 pm)

1 (Hearing adjourned until 10.00 tomorrow morning)

2 --ooOoo--

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