Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3874

1 Wednesday, 11th June 1997

2 (10.00 am)

3 (In open session)

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

5 MR. O'SULLIVAN: Your Honour, there's a problem with our

6 computer. It isn't working. The text isn't coming up

7 on our computer:

8 JUDGE KARIBI WHYTE: Can we have the appearances, please?

9 MS. McHENRY: Good morning, your Honour. The Prosecution

10 is here today with Mr. Grant Niemann, who is acting as

11 lead counsel in Mr. Eric's Ostberg's absence, Mr. Stefan

12 Waespi, Mr. Giovanni Turone. I am Ms. Teresa McHenry

13 and we have Ms. Ellis van Dusschoten, our case

14 manager. Thank you.

15 JUDGE KARIBI WHYTE: Can we have appearances on the side of

16 the defence.

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

18 Honours. My name is Edina Residovic, defence counsel

19 for Mr. Zejnil Delalic. With me defending Mr. Delalic is

20 Mr. Eugene O'Sullivan, Professor from Canada.

21 MR. OLUJIC (in interpretation): Good morning, your

22 Honours. My name is Zeljko Olujic. With me in the

23 courtroom is Mr. Michael Greaves, attorney from London,

24 and we're defending Mr. Zdravko Mucic. Thank you.

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

Page 3875

1 I represent Hazim Delic. My lead counsel, Salih

2 Karabdic, is ill this morning and we sent him home.

3 MR. ACKERMAN: Good morning, your Honours. I'm John

4 Ackerman, appearing with Ms. Cynthia McMurrey on behalf

5 of Esad Landzo.

6 MR. GREAVES: Your Honour, I wonder if you would give me a

7 moment to raise a matter with you, please, before we

8 start today's proceedings. I've been asked on behalf

9 of myself and my learned leading counsel and other

10 defence counsel to address your Honours on a matter

11 which has come to our attention and which is of very

12 great concern to us all and which we anticipate will be

13 of grave concern to this Tribunal and to the

14 Prosecution.

15 On 27th May 1997 a television programme was

16 broadcast by a Belgrade television station about an

17 organisation which has already been the subject of

18 complaint before this Tribunal. This programme has

19 very recently been brought to our attention. That

20 television programme raises a prima facie case that

21 there has been a substantial degree of interference with

22 witnesses in this case by that organisation, and when

23 taken with other material we intend to place forthwith

24 before your Honours, suggests that this process has been

25 going on for a long period of time. It may amount to a

Page 3876

1 very serious contempt of this Tribunal, for which reason

2 we draw this matter to the attention of the Tribunal.

3 We do not wish to address your Honours about this

4 matter until such time as you have had a proper

5 opportunity to read a transcript of the programme and to

6 read the other material concerning this matter. What

7 we propose to your Honours is that you should now rise

8 for about an hour to enable you to take the prepared

9 transcript and the other material in order to examine it

10 and to discuss it amongst yourselves before we address

11 you. Upon your return, we would then wish to play the

12 tape of the programme to you and to have it interpreted

13 by the interpretation unit as it is played. After that

14 we would wish to address your Honours on this grave

15 matter. There are copies of the relevant material for

16 both the Prosecution and for your Honours, and I hand

17 that in to you now. (Handed to Judges and to

18 Prosecution).

19 JUDGE KARIBI WHYTE: The Trial Chamber will rise for just a

20 few minutes and then we will come back.

21 THE INTERPRETER: Microphone, please.

22 (10.15 am)

23 (Short break)

24 JUDGE KARIBI WHYTE: Thank you. Mr. Greaves, we tried to

25 go through it casually, not in full detail.

Page 3877

1 MR. GREAVES: That's why I asked your Honours that you might

2 need a little more time than you had initially thought

3 to absorb it.

4 JUDGE KARIBI WHYTE: We are not taking a decision on this

5 until I have heard what you say.

6 MR. GREAVES: I have invited you to hear the tape being

7 played with the interpretation unit being interpreted

8 for your Honours. I think you ought to do that so you

9 can both see the programme and have the transcript. If

10 it's not perfect, we apologise, because it was done in

11 some hurry yesterday. We would invite your Honours to

12 see that video. It's not terribly long. I can't

13 remember exactly how long it is, but it's not terribly

14 long.

15 JUDGE KARIBI WHYTE: Yes. Let us hear it.

16 MR. ACKERMAN: Might I suggest we do that in closed session,

17 because there are protected witnesses involved in the

18 video.

19 JUDGE KARIBI WHYTE: Okay. Please let's have a closed

20 session.

21 (In closed session)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 3878













13 Pages 3878 to 3924 redacted in closed session













Page 3925

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (11.50 am)

10 (Short break)

11 (In open session)

12 (12.35pm)

13 JUDGE KARIBI WHYTE: This is the Ruling of the Trial

14 Chamber on the Prosecution's application to tender

15 certain exhibits. The exhibits were sought to be

16 tendered through Mr. Moerbauer, a witness for the

17 Prosecution. The Prosecution sought to tender in

18 evidence an aide memoire compiled by the witness

19 consisting of the documents and analysis of certain

20 documents which were handed to him already in evidence

21 for the purposes of identification as exhibits 104.

22 Also sought to be tendered in evidence as exhibits are

23 the two passports of Mr. Mucic, identity cards and the

24 report of the police interview.

25 The principle on which this Trial Chamber applies

Page 3926

1 the Rules of Procedure and Evidence is to ensure a fair

2 trial. We have an overriding duty in every case to

3 secure a fair trial. It is true this Trial Chamber is

4 not bound by national rules of evidence but,

5 notwithstanding, we must observe internationally

6 recognised fundamental rights.

7 Accordingly, we avoid methods which cast

8 substantial doubts on the reliability of the evidence

9 received and the integrity of the proceedings. We

10 adhere to the age-old principle that the one general

11 rule of evidence is the best the nature of the case will

12 allow, and in this case the nature of the evidence which

13 was secured by the witness and the circumstances in

14 which the evidence was secured are our consideration in

15 determining whether they ought to be admitted into

16 evidence.

17 The Prosecution is tendering an aide memoire and a

18 bundle of documents. The Defence has objected. We

19 are satisfied that the Prosecution is tendering the

20 bundle of documents accompanying the aide-memoire, which

21 is an analysis, an application of the documents merely

22 as documents handed over to the witness, and the

23 documents are matters explaining the index and analysis

24 of the aide-memoire. There is no pretence at tendering

25 the contents. The Prosecution has so emphasised and

Page 3927

1 submitted that to us. To that extent we agree.

2 The Trial Chamber will, therefore, admit into

3 evidence the aide-memoire, which is an analysis, an

4 index authored by the witness. Exhibit 104 is

5 admitted. The two passports of Mr. Mucic were being

6 tendered through Mr. Moerbauer. The Defence also has

7 objected on the grounds of non-compliance with the

8 procedural laws of Austria, thereby rendering it

9 inadmissible. We refer to the position adopted by this

10 Trial Chamber that we are not bound by the rules of

11 evidence. We consider evidence which is relevant and

12 probative of the evidence accompanying it. We are

13 satisfied that the passports and ID cards were recovered

14 by the witness. They are therefore relevant to the

15 trial and this witness is, therefore, in a position to

16 tender them. We therefore admit into evidence as

17 exhibits 105, 106, 107, 108.

18 However, if at any stage there is evidence to

19 satisfy the Trial Chamber that rules of international

20 recognised human rights have been violated, we reserve

21 the right to exercise our discretion to exclude them.

22 We shall, therefore, consider the police interviews

23 after the other Austrian police witnesses have given

24 evidence.

25 The Trial Chamber, therefore, admit into evidence

Page 3928

1 exhibits 104 and the documents accompanying not its

2 content -- not their content -- exhibit 105, 106, 107

3 and 108, which are the two passports and the ID cards.

4 Thank you.

5 MR. O'SULLIVAN: Your Honours, in light of your decision,

6 may I make submissions and an oral application?

7 JUDGE KARIBI WHYTE: Yes. Let's hear your application.

8 MR. O'SULLIVAN: My submissions refer to the procedures we

9 use in this Tribunal for the presentation of evidence

10 and in particular with the searches and seizures which

11 were conducted in Austria.

12 As your Honours have pointed out during this

13 period of the prosecution attempting to adduce this

14 evidence from Vienna, the Prosecution has adopted a

15 somewhat fractured approach in putting the cart before

16 the horse, as it were. In my submission they are

17 laying improper foundation for the presentation of this

18 evidence. With such improper factual foundation any

19 legal argumentation on the issue is equally

20 unsatisfactory. In my submission, if current

21 procedures continue in this way, this Tribunal will be

22 precluded from having before it all the evidence before

23 deciding on the legality of the searches and seizures

24 and the admissibility of the objects seized.

25 My submission comes down to this, that I have

Page 3929

1 heard your Honours say that you will wait for the other

2 Viennese police officers to give their evidence before

3 deciding on other objects. My respectful submission is

4 that not only must the Viennese police officers give

5 testimony before this Chamber; there must also be the

6 individuals who were both witnesses to the searches and

7 seizures, as indicated in the Niederschriften, as well

8 as the individuals who were present at the premises

9 where the searches and seizures occurred. The

10 witnesses in the Niederschriften are (redacted), Elvir

11 Rizvanovic, and Zenila (sic) Delalic. The names of the

12 individuals who were present at the premises include

13 Sefika Rizvanovic --

14 JUDGE KARIBI WHYTE: I wish I really understood your

15 submission, that I know what it is.

16 MR. O'SULLIVAN: It is that this Trial Chamber should hear

17 evidence from more than just the Viennese police

18 officers. There are other relevant individuals who can

19 speak to what occurred during these searches and

20 seizures. We have heard already that there have been

21 considerable irregularities from the two police officers

22 that have already arrived. What I am asking for is a

23 procedure akin to a hearing or a voir dire where

24 everyone is brought before the Trial Chamber, who is

25 relevant either by the Prosecution or through court

Page 3930

1 order or by allowing the Defence to call witnesses so

2 these matters are cleared up in one neat package in one

3 hearing.

4 JUDGE KARIBI WHYTE: I do not want to say anything about

5 applications on a voir dire. At least you know what

6 the principles are. So far I have not any of the

7 arguments which touch on those areas. On all of those

8 who has made submissions, none has actually touched on

9 the relevance of a voir dire. You have talked about

10 illegality. You have talked about contravention of

11 rules and procedure, but at least as a common law lawyer

12 you know those are not the basis for a voir dire

13 hearing. You should know that. You know what it is

14 when you have to have a trial within a trial. It's not

15 merely because regulations have been contravened. That

16 is not the reason. So this is why I have said if in

17 future you can get any arguments which will bring the

18 rules within internationally recognised human rights,

19 that may assist in determining whether rights have been

20 violated and therefore rendering it not admissible.

21 There are quite a few different views on common law

22 about admissibility of illegally obtained evidence when

23 the jurisdiction is different. So it depends on which

24 of them you follow.

25 MR. O'SULLIVAN: Thank you, your Honour.

Page 3931

1 JUDGE KARIBI WHYTE: Before we proceed, let me give

2 announcement. I hear we have to conduct the television

3 examination of the witnesses on 23rd June and I'm sure

4 the legal officer will be able to enlighten you more

5 about it. He has just given me the news that the

6 arrangement is complete and it will take place at that

7 time.

8 MR. ACKERMAN: Your Honour, I have presented the Registrar

9 with an additional three copies of another article with

10 regard to this morning's submission that has now been

11 completely translated. I have given a copy to the

12 Prosecution. I have no argument about it. I just want

13 it to be considered along with the rest of the package

14 we presented to you this morning.

15 JUDGE KARIBI WHYTE: Thank you very much. We're

16 grateful.

17 We can now continue with the next witness.

18 MS. McHENRY: Your Honour, the next witness would be Mr. Bart

19 d'Hooge. He was a previous witness whose

20 cross-examination was interrupted so that counsel could

21 get another copy of a video recording of Mr. d'Hooge's

22 meeting with Mr. Mucic. Defence counsel were given that

23 several days ago, the day we said it. So I believe

24 that we can now continue with his cross-examination. I

25 believe Mr. Moran and Mr. Ackerman had completed theirs.

Page 3932

1 If my memory is correct, Mr. Mucic's defence was

2 conducting the cross-examination and I do not believe

3 that Mr. Delalic's defence had yet started their

4 cross-examination, if my memory is correct about that.

5 (Witness enters court)

6 Mr. Bart d'Hooge (continued)

7 Cross-examined by Mr. Olujic (continued)

8 A. I solemnly declare that I will speak the truth, the

9 whole truth and nothing but the truth.

10 MR. OLUJIC (in interpretation): Am I allowed to continue,

11 your Honours?

12 JUDGE KARIBI WHYTE: Yes, you can.

13 MR. OLUJIC (in interpretation): Thank you. Good morning,

14 Mr. d'Hooge. I hope I said it correctly, Mr. d'Hooge.

15 Is it all right now?

16 A. It's all right.

17 Q. Good afternoon, sir. Let's continue, Mr. d'Hooge, we

18 had left off when the problem arose regarding 24th

19 August. I would like to go back to the question, to the

20 issue. You said that beside the police academy you

21 also studied criminology; is that correct?

22 A. Yes.

23 Q. Can you explain us a little bit -- in a little bit more

24 detail your current position in the Belgian police

25 force?

Page 3933

1 A. For the moment I'm on leave, but my rank, if that is

2 what you mean, was First Inspector.

3 Q. Does that mean that your status of police officer is now

4 on hold while you are employed by the Tribunal, that is

5 by the OTP?

6 A. That's correct.

7 Q. Mr. d'Hooge, if you could answer me when you completed

8 your police academy training, did you also take an oath

9 before starting service?

10 A. Yes.

11 Q. In other words, you are still under that oath as of now?

12 A. I think so. I believe so.

13 Q. This oath is to protect the law and order of Belgium?

14 A. That is correct.

15 Q. Thank you. In your statement when you were questioned

16 in the examination-in-chief, and please correct me if

17 I'm wrong on this, you said that in the criminal code --

18 that you didn't know anything about the Austrian

19 criminal code procedures; is that correct?

20 A. That's correct.

21 Q. Do you know anything on the criminal code procedure of

22 the Republic of Croatia?

23 A. No.

24 Q. You know nothing about that either? Okay. Thank

25 you. Mr. d'Hooge, could you tell us how many times did

Page 3934

1 you ask Mr. Zdravko Mucic whether he agrees to

2 questioning without the presence of his attorney?

3 A. I think I asked him every day in the beginning of the

4 interview and after every lunch break, and also at the

5 end of the day if he wanted to continue the next day.

6 Q. Mr. d'Hooge, do you think that it was necessary to warn

7 Mr. Mucic every time that he had the right to an

8 attorney?

9 A. I believe so.

10 Q. When you were informing Mr. Mucic of his rights, I

11 presume that you were following Rule 42 of the Rules of

12 Procedure and Evidence of this Tribunal; is that

13 correct?

14 A. Exactly.

15 Q. Could you describe in more detail? When you were

16 informing him of these rights, did you read it to him or

17 did you just give him the essence of those rules?

18 A. I think I read the rules from paper that I prepared in

19 advance.

20 MS. McHENRY: The Prosecution has no objection if defence

21 counsel wants to show the tape also.

22 MR. OLUJIC (in interpretation): Thank you.

23 JUDGE KARIBI WHYTE: Now, Mr. Olujic, I think let's go for

24 lunch, so you have a more extended cross-examination

25 when we resume. You have a more extended

Page 3935

1 cross-examination. So the Trial Chamber will now

2 rise.

3 (1.00 pm)

4 (Luncheon Adjournment)






















Page 3936

1 (2.30pm)

2 JUDGE KARIBI WHYTE: Invite the witness back.

3 (Witness re-enters court)

4 JUDGE KARIBI WHYTE: Yes, Mr. Olujic, you can carry on.

5 MR. OLUJIC (in interpretation): Thank you, your Honours.

6 Mr. d'Hooge, I hope we will have more luck this time

7 around. This is the third time we are trying to have

8 this discussion. Mr. d'Hooge, when I asked you the last

9 question you said explicitly that when you stated

10 Mr. Mucic's rights that you had a piece of paper in front

11 of you; is that correct?

12 A. That is correct.

13 Q. On this piece of paper was the Rule 42 verbatim written

14 down or was it just sort of the essence of this Rule

15 that you conveyed to him?

16 A. I think it was just the essence, meaning I had every

17 part of the Rule but with some translations.

18 Q. Mr. d'Hooge, could you repeat here before us this essence

19 of the Rule 42 that you then conveyed to Mr. Mucic?

20 MS. McHENRY: Your Honour, given that this is all actually

21 recorded, I think it's unfair and unnecessary to have

22 the witness do it from memory. The tape recording is

23 available, the transcript is available, and so I would

24 object to this.

25 JUDGE KARIBI WHYTE: I'm not sure he wanted him to do it

Page 3937

1 from memory. If he said what he did was merely the

2 essence of the Rule, he can look at the rules and still

3 give the essence of it.

4 MS. McHENRY: Yes, but if the question is "exactly what did

5 you say", that was tape recorded and the transcript is

6 available.

7 JUDGE KARIBI WHYTE: That is correct, but if all he wants

8 to know is what was conveyed to the suspect, he can do

9 that.

10 MR. OLUJIC (in interpretation): Thank you, your Honour.

11 Can you restate this for us, please.

12 A. The suspect had the right to be assisted by counsel of

13 his choice and that he had the right to the free

14 assistance of an interpreter, the right to remain silent

15 and that any statement he makes might be used in

16 evidence, and that the interview will be audio and video

17 recorded, that a transcript will be made of the audio

18 and video recording and that he will receive a copy of

19 the transcript and video or audio tapes. I think

20 that's about it.

21 Q. Before I continue, your Honours, with your permission I

22 am again getting a comment of Mr. Mucic that he does not

23 understand the interpretation that he's receiving from

24 the interpreting services and Mr. Mucic insists on a

25 Croatian interpreter.

Page 3938

1 JUDGE KARIBI WHYTE: When did he stop understanding what

2 has been interpreted?

3 MR. OLUJIC (in interpretation): The last three days.

4 JUDGE KARIBI WHYTE: Is it the person interpreting or

5 because there has been a change because it is the same

6 witness who has been on all along.

7 MR. OLUJIC (in interpretation): It is the question of a

8 person who used to interpret correctly but now Mr. Mucic

9 claims that he does not understand the language in which

10 the interpretation is coming in this courtroom.

11 JUDGE KARIBI WHYTE: What I am saying is, is the language

12 now interpreted different from what he has been having

13 earlier than three days ago? It's the same language,

14 isn't it?

15 MR. OLUJIC (in interpretation): Your Honours, it is not a

16 similar language. These are two separate languages and

17 that is not an issue. What Mr. Mucic is -- I'm only

18 conveying what Mr. Mucic is saying. His wish -- he

19 requests that he be getting interpretation in Croatian

20 language. His fate is at stake and every articulation

21 --

22 JUDGE KARIBI WHYTE: I do not like that type of thing,

23 argument. If he does not understand what's now being

24 said but he has been understanding it for about two

25 months, something must be wrong. I want to investigate

Page 3939

1 what was actually wrong. Don't tell us his fate is at

2 stake. We know it is at stake and we know there is a

3 provision made for interpretation. Has he been having

4 interpretation all along? Now we'll carry on. The

5 arrangement will be made. Except you think because he

6 doesn't understand you don't want to go on, we'll carry

7 on. So you carry on.

8 MR. OLUJIC (in interpretation): Thank you. Mr. d'Hooge, do

9 you remember saying to Mr. Mucic that he had the right to

10 an attorney free of charge?

11 A. I don't know off the top of my head. I can check the

12 transcript. It would be better for me.

13 Q. Can you answer whether you recall that you said to

14 Mr. Mucic every time that he had the right to an

15 attorney?

16 JUDGE JAN: He has already given the answer: "Please give

17 me the transcript and I will check up what I said".

18 MR. OLUJIC (in interpretation): Very well.

19 JUDGE KARIBI WHYTE: There is a transcript. Why do you

20 repeat it? Have you got the transcript yourself?

21 MR. OLUJIC (in interpretation): Yes, I do, your Honours.

22 JUDGE KARIBI WHYTE: If it is in the transcript, then be

23 satisfied with that.

24 JUDGE JAN: Not only the transcript, but also the

25 videotape.

Page 3940

1 MR. OLUJIC (in interpretation): Mr. d'Hooge, on what date

2 did you arrive in Vienna?

3 A. I arrived on Sunday evening. That must have been 17th

4 March.

5 Q. Who came along with you; in other words, who else took

6 the trip with you?

7 A. I was alone.

8 Q. And when did Mr. Abribat -- in other words, did

9 Mr. Abribat also join you there?

10 A. Mr. Abribat was already there. He had an earlier flight

11 in the afternoon.

12 Q. Could you please tell us, you said, among other things,

13 to Mr. Mucic that if he did not choose an attorney that

14 the court would assign him one; is that right?

15 MS. McHENRY: Asked and answered. The witness has

16 indicated if he wants exactly what was said, he would

17 like to look at the transcript. It's Prosecution

18 exhibit 101 is the transcript. 101A, I believe, is the

19 actual recording.

20 MR. OLUJIC (in interpretation): I apologise. I think that

21 is incontrovertible. I obviously have nothing against

22 the witness being shown the transcript. On the

23 contrary. Could the witness please be shown the

24 transcript?

25 MS. McHENRY: Just so the record is clear, I believe it has

Page 3941

1 been stated already the interpretation -- the language

2 was in French and Serbo-Croatian. What we have here is

3 the English translation of the Serbo-Croatian. There

4 is not a French transcription, just so the record is

5 clear.

6 A. I think the sentence is on page 14:

7 "He is entitled to an attorney of his choice, and

8 if he cannot afford one, an attorney will be assigned to

9 him",

10 if this is what you mean.

11 Q. Mr. d'Hooge, did you tell Mr. Mucic that he could also

12 call his attorney to his cell and not only while being

13 questioned?

14 A. No.

15 Q. Do you know how many hours Mr. Mucic spent in total in

16 various questionings?

17 A. I've no idea. I can check on the transcripts.

18 Q. Approximately, if you could say. In other words, how

19 long did you question him and how long did Mr. Abribat

20 question him, provided Mr. Abribat told you that?

21 A. Well, you can see it in the transcript. Mr. Abribat

22 started at 15:30 and ended at 17:00. Then the second

23 day, March 20th, was 9.30 until 11.50. Then 15:20

24 until --

25 Q. Thank you. How long was he questioned by the Austrian

Page 3942

1 officers?

2 A. I've no idea.

3 Q. Do you know maybe how long is the -- how long does it

4 take to go from the cell, from the detention place where

5 Mr. Mucic was, to the room where you met with him and

6 questioned him?

7 A. I think maximum of a few minutes.

8 Q. Do you know what order -- that the order and the

9 schedule is in the Detention Unit where Mr. Mucic was

10 held?

11 A. No idea.

12 Q. Can you tell us -- from your report it seems to infer

13 that the Croatian Embassy was only notified of the

14 arrest two days after it was carried out; is that

15 correct?

16 A. It's certainly not in our transcript. That I'm sure.

17 Q. Do you know when the Croatian Embassy was notified and

18 was it notified?

19 A. I don't know. That was not in our line of duty, so ...

20 Q. Could you tell us, please, whether you know whether

21 anybody else was sharing the cell with Mr. Mucic before

22 he was questioned and after he was detained, or was he

23 there by himself?

24 A. I don't know. I never visited his cell. I don't know

25 where it was, so ...

Page 3943

1 Q. Could he have been mistreated there?

2 A. I don't think so. I think if something happened like

3 that Mr. Mucic would have informed us, I think.

4 Q. Did you yourself ask him this?

5 A. No.

6 Q. Can you tell us, please -- you stated that you did not

7 see Zdravko Mucic on the day of his arrest, that means

8 18th March 1996, but that you also were not familiar

9 with the conditions of his detention in prison; is that

10 correct?

11 A. That's correct.

12 Q. In other words, you do not know whether he had a rest --

13 whether he had any rest and how much rest he had while

14 he was there?

15 A. No, except for the days when we interviewed him. Then,

16 for example, the first day he had a rest from 11:50

17 until 15:20, I think, and the second day apparently the

18 same.

19 Q. Please say after you arrived and after the arrest of

20 Mr. Mucic did you talk to the Austrian officers about the

21 manner in which he was arrested?

22 A. I think we were informed by the Austrian police

23 officers, and if my memory is okay, I think they told us

24 that Mr. Mucic was arrested in front of his house, but

25 I can't guarantee that.

Page 3944

1 Q. Did they tell you anything else about it, about the

2 technical -- technically how it was carried out?

3 A. No.

4 Q. Mr. d'Hooge, you told the learned Prosecutor, when asked,

5 that you did not inform Mr. Mucic in detail what he was

6 charged with; is that correct?

7 A. Can you please repeat the question?

8 Q. When you testified, and this is in the transcript, to

9 the learned colleague on the Prosecution, you did not

10 tell him precisely for what -- what charges were being

11 brought against him. This is what is coming out of

12 your statement. My question to you is: is this

13 correct?

14 A. I think Mr. Mucic was arrested on the basis of Article 40

15 of the Tribunal provisional measures.

16 JUDGE KARIBI WHYTE: That is not the question. The

17 question is that you did not tell him for what purpose

18 he was being arrested?

19 A. That is possible, yes. Okay.

20 MR. OLUJIC (in interpretation): Does this mean, Mr. d'Hooge,

21 that nobody told him why he was being prosecuted or

22 maybe that only the Austrians told him that, or maybe

23 that they did not tell him the correct charges. Do you

24 allow for that?

25 A. No. I'm pretty sure that the Austrian authorities

Page 3945

1 informed Mr. Mucic of that and I'm also sure that I

2 mentioned them, because I see here on page 52 of the

3 transcript, 21st March, I repeated at the beginning of

4 the interview, 9.30 -- I think I spoke of the charges.

5 Q. When did the Austrian authorities say this and who was

6 it in the Austrian authorities who told him this?

7 A. I only assume that I told him. If you are arresting

8 him you have to inform him of the reasons for the

9 arrest. That seems logical to me.

10 Q. That is correct, yes, but this is your assumption. My

11 question to you is: do you have any direct knowledge of

12 this, that he was told this, because there are different

13 ways in which this could be done? In other words, one

14 could be told these things in an incorrect way or

15 something that is a half truth. In other words, what

16 is it that you know, only the things that you know,

17 please?

18 A. I was not present during the proceedings of the Austrian

19 police, so I have no direct knowledge. That's only an

20 assumption.

21 Q. Very well. Thank you. On page 3312 and 3313, when

22 asked by the learned Prosecutor when at any time during

23 or before the questioning Zdravko Mucic asked for an

24 attorney, you answered that he did not?

25 A. That is correct.

Page 3946

1 Q. If this is so and if you confirm this today, how come

2 that an attorney appeared?

3 A. Because I believe according to the Austrian law that an

4 attorney is appointed to a suspect, that the courts

5 appoint automatically an attorney.

6 Q. Is this your opinion or was it by -- was this done by

7 intervention of Judge Seda, or do you assume again?

8 A. I have no idea. That is what Dr. Manfred, the lawyer,

9 told us, that he was appointed by the courts.

10 Q. Very well. Now that the attorney appeared, did you

11 take Mr. Mucic out to take a meeting with this attorney,

12 so that he could consult with him?

13 A. I did not take Mr. Mucic out. The attorney consulted

14 with Mr. Mucic in the room where we were. We were at a

15 distance but they consulted.

16 Q. Did you not find it necessary to put them in touch

17 together so that they would talk?

18 A. Well, they talked for five minutes at least.

19 Q. But in your presence; right?

20 A. Yes. Well, we weren't -- we were at least five or six

21 metres away from them, so ...

22 Q. On page 3375 of the transcript you said that the

23 investigating magistrate, Dr. Seda, told you that

24 Mr. Mucic is asking for an attorney. Is that correct?

25 A. That is correct.

Page 3947

1 Q. You also said that Mr. Mucic requested an attorney in the

2 extradition procedure and this is in answer to a

3 question posed by the Prosecution; is that correct?

4 A. That is correct. Mr. Mucic asked for an attorney for

5 his extradition procedure.

6 Q. However, Mr. d'Hooge, you never stated this before your

7 testimony; in other words, you never mention it anywhere

8 in your reports. You mention it for the first time

9 during these proceedings in front of this honourable

10 Trial Chamber; is that correct?

11 A. That is correct. I'm not involved in the Austrian

12 proceedings, so it's up to them to state it in their

13 report.

14 Q. Don't you think that it is unusual that somebody is not

15 asking for an attorney for the essence of the matter and

16 only asks for one for the extradition procedure,

17 especially in the light of the fact that Mr. Mucic asked

18 to be brought to The Hague?

19 A. That is a question that only Mr. Mucic can answer, why he

20 asked for an attorney for the extradition procedure and

21 not for our interview.

22 Q. It seems to come out very unequivocably that you said

23 that Mr. Mucic had the right to an attorney, but if he

24 could not find one, that you -- in other words that he

25 will be assigned one and, further, does Mr. Mucic agree

Page 3948

1 to this kind of questioning without the presence of an

2 attorney. Is this correct?

3 A. That is correct. It's mentioned a few times in the

4 transcript.

5 Q. In other words, you told him that if he did not choose

6 an attorney, in any event one will be appointed to him?

7 A. I told Mr. Mucic that he's entitled to an attorney of his

8 own choice, and if he cannot find one, an attorney will

9 be assigned to him, but on the other hand Mr. Mucic

10 agreed to be interviewed without an attorney, which is

11 Rule 42(B), I think. So he voluntarily waived his

12 right to counsel.

13 Q. Yes, but you never told him that if he waives the right

14 to his attorney or an attorney appointed by the court

15 that he was not entitled to an attorney at all. That

16 is what emerges from the transcript?

17 A. I think this is an interpretation.

18 Q. Let me repeat the statement in the transcript. You

19 said it was correct. Therefore you never told him that

20 if he renounces his own attorney or an attorney assigned

21 to him by the court that he was waving his right to an

22 attorney altogether according to Rule 42(B). Is that

23 correct?

24 A. Before we started the interview, we explained to

25 Mr. Mucic what the rules of the Tribunal were, so we

Page 3949

1 explained to him that he was entitled to an attorney,

2 but he could also waive the right, 42(B). So I think

3 we did everything according to the rules.

4 Q. But that is not what is stated in the transcript,

5 Mr. d'Hooge, or, rather, it may be possible that you had

6 a conversation beyond what was recorded, but this is

7 what is stated in the transcript, and you yourself have

8 confirmed that statement from the transcript.

9 Therefore what is in the transcript and on the

10 audiotape?

11 A. It is on page 16789 the end of the first paragraph

12 Mr. Mucic the first question is:

13 "Do you agree to answer questions without the

14 presence of an attorney in accordance with our previous

15 conversation?"

16 That was exactly what happened.

17 Q. Mr. d'Hooge, there were several conversations. There

18 was one on the 19th. Mr. Abribat has the same

19 conversation as you, but Mr. Abribat also said the same

20 thing that I'm referring to and that can be found in the

21 transcript, but not to waste time, I think we can

22 proceed.

23 On 20th March at 9.30 you questioned Mr. Zdravko

24 Mucic. At the time you repeated his rights, the same

25 ones from the previous day, but you also told him that

Page 3950

1 he was entitled to an interpreter free of charge; is

2 that correct?

3 A. That is correct.

4 Q. Is it correct that Mr. Mucic told you that he didn't want

5 his attorney, nor did he want his own interpreter?

6 A. That is correct.

7 Q. I'm asking you now how come that Zdravko Mucic, who did

8 not ask for an attorney or an interpreter, suddenly an

9 interpreter appears in the room, who interprets, but in

10 the room there are some other people, among others

11 Mr. Nicholson. I'm saying this to remind you; is that

12 correct?

13 A. That is correct.

14 Q. How can Mr. Mucic know that an attorney may not be in the

15 room, when he didn't ask for an interpreter, yet an

16 interpreter was there, and there were some other people

17 in the room? Do you allow for the possibility that

18 perhaps he thought that an attorney was in the room,

19 too?

20 A. No.

21 Q. What do you mean you don't think so? On the basis of

22 what? How did the conversation then continue between

23 you and the other people?

24 A. I think that in the beginning of the interview that we

25 identified ourselves. So it's obvious that even if you

Page 3951

1 read the transcript, that there is no attorney

2 present. If Mr. Mucic expressed his desire that at that

3 time he wanted an attorney, we would have stopped the

4 interview and provided him with an attorney, but he

5 didn't express his desire to have an attorney, so ...

6 Q. But, Mr. d'Hooge, it is not stated in the transcript that

7 the people introduced themselves. Perhaps this was

8 done before that, but when the recording started there

9 were no introductions?

10 MS. McHENRY: Your Honour, I object, because that is an

11 incorrect statement of the record. On page 1 of the

12 transcript it clearly reflects that Mr. Abribat says:

13 "During the interview the following persons are

14 present: Mr. Mucic, the interpreter for the Tribunal,

15 Mr. Bart d'Hooge, Peter Nicholson, and I, Regis

16 Abribat. The three of us are members of the

17 Prosecutor's Office of the International Tribunal".

18 So I think that is a misstatement of the record

19 and I object on those grounds.

20 MR. OLUJIC (in interpretation): I beg your pardon, but it

21 was not stated who Mr. Nicholson was. It just says

22 "Mr. Nicholson". So we can rightly assume that there

23 may be a counsel called Nicholson. Why not? It was

24 not stated that he was a representative of the technical

25 services. Therefore you interrupted me without cause,

Page 3952

1 my learned colleague. So would the witness please

2 answer my question. I only have a few more left

3 anyway. I would just like to clear up this point?

4 A. On page 1, line Number 7:

5 "Mr. Bart d'Hooge, Mr. Peter Nicholson, and Regis

6 Abribat, the three of us are members of the Prosecutor's

7 Office".

8 I think that is clear.

9 JUDGE KARIBI WHYTE: You told the suspect that that is the

10 position. This is what he wants to know, in what

11 capacity were they introduced?

12 A. As members of the Office of the Prosecutor.

13 MR. OLUJIC (in interpretation): Thank you, your Honours.

14 I have no further questions.

15 JUDGE KARIBI WHYTE: In what language did you conduct the

16 interview?

17 A. In French.

18 JUDGE JAN: What language was the accused speaking at that

19 time?

20 THE INTERPRETER: Microphone, please.

21 JUDGE JAN: What language was the accused speaking at that

22 time in the interview?

23 A. I believe he was speaking Serbo-Croatian.

24 JUDGE KARIBI WHYTE: You had an interpreter for that?

25 A. Yes.

Page 3953

1 JUDGE JAN: It was not Croat only?

2 A. I beg your pardon?

3 JUDGE JAN: It was not Croat only, the language?

4 A. (Witness shrugged).

5 JUDGE KARIBI WHYTE: Any further cross-examination?

6 Cross-examination by Mr. O'Sullivan.

7 MR. O'SULLIVAN: Good afternoon, your Honours. May I

8 proceed?

9 JUDGE KARIBI WHYTE: Yes, you can.

10 MR. O'SULLIVAN: Good afternoon, sir?

11 A. Good afternoon.

12 Q. I have a few questions for you regarding your role as an

13 investigator in this case. I would like to begin with

14 your interview of Mr. Mucic on 19th August 1996. That

15 interview lasted approximately an hour and 20 minutes,

16 didn't it?

17 A. That's correct, yes.

18 Q. And aside from Mr. Mucic and you, Teresa McHenry, the

19 Prosecutor, was present, wasn't she?

20 A. I don't think so. Sorry, you are talking about 19th

21 March --

22 Q. No, August 19th?

23 A. Yes, Ms McHenry.

24 Q. Was there. There was an interpreter there as well?

25 A. That's correct.

Page 3954

1 Q. Was anyone else present?

2 A. Mr. Tapuskovic, the Defence counsel, and Mr. McLeod was in

3 the adjoining room.

4 Q. You conducted yourself in strict accordance with the

5 rules of this Tribunal regarding questioning, didn't

6 you?

7 A. That's correct.

8 Q. By strict compliance, you followed Rules 42 and 43?

9 A. That's correct.

10 Q. You informed Mr. Mucic that the interview would be

11 recorded?

12 A. That's correct.

13 Q. That we get a copy of that recording?

14 A. (Witness nodded.)

15 Q. Yes or no?

16 A. Yes.

17 Q. That he had a right to counsel?

18 A. That's correct.

19 Q. That counsel would be provided to him if he could not

20 afford counsel?

21 A. (Witness nodded.)

22 Q. That he was satisfied with Mr. Tapuskovic. He told you

23 that?

24 A. Yes.

25 Q. You told him he had the right to an interpreter?

Page 3955

1 A. That's correct.

2 Q. That he could remain silent?

3 A. Correct.

4 Q. That what he said may be used in evidence?

5 A. That's correct.

6 Q. And that you would stop whenever he asked to stop?

7 A. That's correct.

8 Q. And you also said at the end of the interview --

9 in fact, you asked Mr. Mucic if he had anything else to

10 say?

11 A. I believe so, yes.

12 Q. By asking Mr. Mucic whether he wanted to say anything

13 else, you were attempting to comply with Rule 43; is

14 that right?

15 A. That's correct.

16 Q. Which says that a person --

17 A. At the end of the questioning the suspect should have

18 the possibility to add or clarify.

19 Q. So you did not strictly comply with that Rule. You did

20 not use the words "add or clarify"; is that correct?

21 A. Correct.

22 Q. But that was your intention?

23 A. That was my intention.

24 Q. Let's look at Rule 43 for a second, the part where you

25 ask the person if he would like to add or clarify

Page 3956

1 things. I'm thinking now of the March 16th, 1996

2 interview in Vienna, the first one you were at. At the

3 end of that interview you did not ask Mr. Mucic if he had

4 anything to add or clarify; is that correct?

5 A. I don't think so.

6 Q. I believe it's exhibit 101?

7 A. It's page 61. "Mr. Mucic, do you have anything to add".

8 Q. I am looking at March 19th interview. I believe it's

9 page 14: are you with me?

10 A. Yes.

11 Q. You did not comply with Rule 43 there. You did not ask

12 him if he had anything to add or clarify?

13 A. That part of the interview was under Mr. Abribat.

14 Q. But Rule 43 was not complied with; is that correct?

15 JUDGE JAN: Do I understand Mr. Abribat left. It was on

16 the 20th that the interview was concluded. It is only

17 at the end of the statement you ask if the suspect wants

18 to add or clarify.

19 MR. O'SULLIVAN: They broke off for the day on 19th January

20 but it is the end of the interview you ask, not during

21 the interview. If we go to page 61 as you have

22 indicated, sir, at that point Mr. Mucic is not given the

23 opportunity to add or clarify, is he?

24 A. It's on page 61:

25 "It is 11.30 now, Mr. Mucic. Do you have anything

Page 3957

1 to add?"

2 Q. But he's not given the opportunity to clarify, is he?

3 A. Yes, he did.

4 Q. A strict reading of 43 says "add or clarify" is that

5 correct?

6 MS. McHENRY: Objection. Arguing with the witness. The

7 facts are clear. He has already answered the question.

8 MR. O'SULLIVAN: I asked if he could read the transcript and

9 it said "add"; is that correct.

10 JUDGE KARIBI WHYTE: It did not include "or clarify".

11 MR. O'SULLIVAN: Right. Is that correct, sir?

12 A. That is correct.

13 Q. Going back to August 19th now, right? August 1996?

14 THE INTERPRETER: Could counsel speak a bit more slowly so

15 that it could be followed.

16 JUDGE KARIBI WHYTE: That's a warning to you. That's a

17 warning to speak slowly so that they can pick you up.

18 MR. O'SULLIVAN: Sorry. Going back to August 19th, 1996,

19 before the interview began, after you read these rights

20 to Mr. Mucic, you asked him if he understood his rights;

21 is that correct?

22 A. Could I be provided with a copy of the transcript?

23 MS. McHENRY: The Prosecution has an extra one that, in

24 fact, is Mr. d'Hooge's copy. The Prosecution also has

25 -- since it's going to be shown to him, we ask that it

Page 3958

1 be marked and we have three additional copies for the

2 court also. I believe the witness has asked for it so

3 we would ask -- I don't care if it is a Prosecution or

4 Defence Exhibit. Since it is going to be shown to the

5 witness, we believe it should be marked and

6 identified.

7 MR. O'SULLIVAN: Your Honours, I am only asking that this

8 document be marked for identification.

9 JUDGE KARIBI WHYTE: Kindly mark the document for

10 identification, please.

11 A. Could I have mine, please?

12 JUDGE KARIBI WHYTE: Is there one for the witness?

13 MR. O'SULLIVAN: I believe he has one. Sir, my question for

14 you is whether you asked Mr. Mucic whether he understood

15 his rights before beginning the interview. I believe

16 on page 8 you say that, line 1.

17 A. Page?

18 Q. 8.

19 A. Yes.

20 Q. Then you ask him whether the interview can begin; is

21 that right?

22 A. That's correct.

23 Q. Now during the interview with Mr. Mucic on 19th August

24 1996 he said that -- he said to you that the Prosecutor

25 should not have a partial picture of things, that they

Page 3959

1 should have a global picture of the area of Konjic and

2 what happened there. Do you recall that?

3 A. Yes.

4 Q. At one point during questioning Mr. Mucic speaks to you

5 (redacted)

6 (redacted)

7 (redacted)

8 MS. McHENRY: I know there are no protective orders in

9 place, but since we do not know what witnesses may or

10 may not in the future be requesting protective orders,

11 we request that names of witnesses not be said in open

12 court.

13 JUDGE KARIBI WHYTE: I think we should understand, because

14 at this stage when this interview was made none of the

15 witnesses was known. So it's possible names which

16 might now arise might have been mentioned.

17 MR. O'SULLIVAN: But this person has not sought any

18 protection, your Honour.

19 JUDGE KARIBI WHYTE: In case it infringes any of those

20 things.

21 MR. O'SULLIVAN: How would your Honour like me to refer to

22 this person?

23 JUDGE KARIBI WHYTE: I suppose if you could avoid names and

24 perhaps refer to the particular line and page, perhaps

25 you might be able to pick it up, since we all have

Page 3960

1 copies.

2 JUDGE JAN: Is he on your list of witnesses?

3 MS. McHENRY: Your Honour, I would prefer not to state in

4 open court who is and who is not on our list of

5 witnesses. I amy happy if we go into private session

6 to answer all questions of your Honour.

7 MR. GREAVES: Well, your Honour, this goes back to the point

8 that I raised yesterday. It's really getting very

9 difficult to know who we can mention and who we can't

10 unless the Prosecution produces a proper list for us to

11 work from. It really is becoming very difficult.

12 MS. McHENRY: In all cases whether or not the Prosecution is

13 asking that names of potential witnesses not be

14 mentioned.

15 JUDGE KARIBI WHYTE: I suppose to be on the safe side you

16 had better get into private session for this period.

17 MR. O'SULLIVAN: Right:

18 (In private session)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 3961

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (In open session)

11 MS. McHENRY: We would be asking for a redaction of any

12 names of potential witnesses that have been stated

13 previously. Thank you.

14 JUDGE KARIBI WHYTE: Is the line clear now? Can we

15 proceed? You can. You can carry on.

16 MR. O'SULLIVAN: Thank you, your Honour. We will refer to

17 this person as Mr. 1; all right? In his statement

18 Mr. Mucic tells you that Mr. 1 held a very high position

19 in the HVO, didn't he?

20 A. That's correct.

21 Q. Pardon me?

22 A. That is correct.

23 THE INTERPRETER: Microphone, please.

24 A. That is correct.

25 MR. O'SULLIVAN: That is correct. You know that the HVO is

Page 3962

1 the military and civilian organisation of Croats who

2 were involved in the organisation of the Celebici camp?

3 A. Of Bosnian Croats.

4 Q. Who were involved in the organisation of Celebici camp;

5 is that correct?

6 A. That's correct.

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 MS. McHENRY: Your Honour, may I ask that we go into private

14 session?

15 JUDGE KARIBI WHYTE: Do you have any strong reasons for

16 that?

17 MS. McHENRY: Yes, your Honour, but I prefer to state my

18 reasons in private session.

19 JUDGE KARIBI WHYTE: I think let's be free and go into

20 private session instead of picking our way through.

21 Instead of picking our way through, let's go into it.

22 JUDGE JAN: It will be to your advantage if you go into

23 private session. You can ask --

24 JUDGE KARIBI WHYTE: You will be freer in that.

25 MR. O'SULLIVAN: If there's good reason to go into private

Page 3963

1 session. We haven't heard one yet. That's all. I

2 think the presumption is it should be in open court, not

3 in private session.

4 JUDGE JAN: I think Ms McHenry has given you the reason.

5 They don't want the witness to be identified.

6 JUDGE KARIBI WHYTE: Even now, the moment you talk about

7 the positions, I think that can be inferred.

8 MR. O'SULLIVAN: It just becomes very difficult to conduct a

9 cross-examination in open court. These are things that

10 should be known.

11 JUDGE KARIBI WHYTE: What I mean is if we are in open

12 session and you even indicate the title or political

13 office, one can easily fail, or you have a failing to,

14 or if it is in a closed or private session, nobody will

15 hear about that.

16 MR. ACKERMAN: Your Honour, the new position, and I'm sure

17 it's a new position, of the Office of the Prosecutor

18 creates an almost intolerable situation for all of us,

19 because, first of all, they say they have no idea who

20 the witnesses are going to be from now on because of the

21 problems they're having and, second of all, they say we

22 should not mention everybody who is a potential

23 witness. That makes everybody who ever lived in the

24 former Yugoslavia, I suppose, a potential witness. We

25 can't mention any names. I can't imagine what kind of

Page 3964

1 game we are going to play with codes from this point of

2 time.

3 JUDGE KARIBI WHYTE: Not in the circumstances.

4 JUDGE JAN: That is why I said you will have greater

5 freedom in private session. It will be to your

6 advantage really.

7 MS. McHENRY: May I also ask that the record be redacted to

8 take away the identifying information potentially.

9 JUDGE JAN: Not redacted. The judicial record will remain

10 as it is but this information will not be released to

11 the public.

12 MS. McHENRY: Yes, your Honour.

13 MR. O'SULLIVAN: May I proceed?

14 JUDGE KARIBI WHYTE: Yes, you may.

15 (In private session)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 3965














14 Pages 3965 to 3969 redacted in closed session












Page 3970

1 (redacted)

2 (redacted)

3 (redacted)

4 (In open session)


6 MR. O'SULLIVAN: Thank you. Sir, I was asking you about

7 your being in Vienna, Austria in March 18th, 1996. You

8 arrived at the headquarters of the Austrian police in

9 the late afternoon that day?

10 A. No. I went from -- directly from the airport to my

11 hotel.

12 Q. You arrived in police headquarters on the 19th?

13 A. Yes.

14 Q. You were in police headquarters for about two hours that

15 afternoon between 5.00 pm and 7.30 pm?

16 A. No, not 7.00, 7.30. I think between 5 and 6.

17 MS. McHENRY: I am not objecting. I am just wondering is

18 this the 18th or the 19th we are talking about. I am a

19 little confused.

20 MR. O'SULLIVAN: This was on 18th March 1996 that you were

21 in police headquarters from approximately 5.00 pm to

22 approximately 7.30 pm?

23 A. The 19th. 18th was a Sunday. I'm getting confused.

24 Wait.

25 JUDGE JAN: 18th was the Monday.

Page 3971

1 A. The Monday afternoon we were in headquarters from around

2 5.00-6.00 some time.

3 MR. O'SULLIVAN: That was March 18th?

4 A. Yes.

5 Q. Along with you was Mr. Regis Abribat, who is the head of

6 investigation, your superior?

7 A. That's correct.

8 Q. There was also Mr. Dutoit from the OTP?

9 A. Correct.

10 Q. What was Mr. Dutoit's position with the OTP?

11 A. He's a legal adviser.

12 Q. He is a lawyer?

13 A. Yes.

14 Q. There was also an interpreter from the OTP with you?

15 A. That is correct.

16 Q. Do you know the name. Interpreter?

17 A. Miss Alexandra Pal.

18 Q. So there were four representatives of the OTP in Vienna

19 police station on March 18th?

20 A. And Mr. Nicholson.

21 Q. You met on the third floor in Room 331, do you recall

22 that?

23 A. That is possible. I don't remember.

24 Q. You would agree with me, though, if I suggested to you

25 that your meeting took place between 5.00 and 7.30 in

Page 3972

1 Room 331?

2 A. Yes.

3 Q. And you were in that room, Room 331, after the searches

4 and seizures had been completed that day in relation to

5 the Celebici case?

6 A. Actually I don't know which room you are referring to

7 because we were in two rooms.

8 Q. Well, the room I'm referring to is the one where you met

9 with police officers from Austria?

10 A. It was in both rooms, so ...

11 Q. Well, at one point were you in the room where -- first

12 of all, by that time the searches and seizures had been

13 completed in Vienna regarding the Celebici case?

14 A. I believe so, yes.

15 Q. Okay. At one point you were in a room with certain

16 people and the objects seized?

17 A. Yes, that's correct.

18 Q. That's the room I'm referring to; okay? The objects had

19 been seized from three locations that day in Vienna; is

20 that correct?

21 A. That is possible, yes.

22 Q. Do you know for sure?

23 A. I can't exactly recall where the documents and videos

24 and objects were seized, but it should be -- I believe

25 so.

Page 3973

1 Q. Perhaps I can help you. One premises where objects

2 were seized was Mr. Mucic's apartment, Taubergasse 15,

3 Door 10. Does that sound familiar?

4 A. Yes.

5 Q. A second location was an apartment used by Mr. Zejnil

6 Delalic, Taubergasse 15, Door 14. Does that sound

7 correct?

8 A. Yes.

9 Q. A third location was offices of Inda-Bau company,

10 Koppstrasse 14, is that correct?

11 A. That is correct.

12 Q. In this room you met with Austrian police officers; is

13 that correct?

14 A. That's correct.

15 Q. Do you know their names? Would the names be Moerbauer,

16 Panzer and Bycek?

17 A. I certainly remember the name of Panzer.

18 Q. But the three of them were in that room with you at

19 certain times?

20 A. Yes.

21 Q. And these three police officers were in and out of that

22 room but they weren't constantly there between 5.00 and

23 7.30?

24 MS. McHENRY: May I just ask for clarification, and I guess

25 I object without this clarification, does this witness

Page 3974

1 know who Mr. Moerbauer and Mr. Bycek are or even Mr. Panzer

2 as opposed to just recognising their name.

3 MR. O'SULLIVAN: Okay. Did you know who these three

4 gentlemen were?

5 A. I know for certain Mr. Panzer.

6 Q. Who is he?

7 A. He's one of the police officers from Vienna.

8 Q. Okay. There were two other of his colleagues, Austrian

9 police officers, in this room with you at times?

10 A. Yes.

11 Q. Were they there the full time between 5.00 and 7.30?

12 A. Yes.

13 Q. They never left the room?

14 A. There were even other police officers, I think.

15 Q. Pardon me?

16 A. There were other police officers who came in and out.

17 Q. Was Lieutenant Gschwendt of the Viennese police present

18 in that room?

19 A. Yes.

20 Q. Is it fair to say that that room was a pretty busy place

21 that evening?

22 A. Yes.

23 Q. There was lots of activity in that room, wasn't there?

24 A. There was activity. That is correct, but ...

25 Q. Mr. Mucic was in that room as well, wasn't he?

Page 3975

1 A. No.

2 Q. Mr. Mucic was never in Room 331 while you were there?

3 A. No.

4 Q. Was there a German interpreter in that room while you

5 were there?

6 A. Yes.

7 Q. We have already established that the objects seized that

8 day by the Austrian police were in that room?

9 A. That's correct.

10 Q. Was there a large black bag containing objects? Do you

11 remember that? Seized objects?

12 A. Yes.

13 Q. Was there a plastic bag or several plastic bags

14 containing seized objects?

15 A. I believe so, yes.

16 Q. Was there a box, perhaps a cardboard box, with a lid

17 folded containing seized objects?

18 A. I remember a box with videotapes in it.

19 Q. None of these things, the bag, the plastic bags, the

20 boxes, were sealed in any secure manner, were they?

21 A. I don't think so, no.

22 Q. What were the dimensions of that room -- 331 we're

23 talking about -- approximately?

24 A. I think about 8 metres by 5 metres.

25 Q. Okay. Where were the seized objects placed or located

Page 3976

1 in that room?

2 A. The seized objects were placed on different tables,

3 desks.

4 Q. Part of the seized objects were documents; is that

5 correct?

6 A. That's correct, yes.

7 Q. And you had a look at some of the seized documents while

8 you were at the police station at that day; is that

9 correct?

10 A. That's correct.

11 Q. It's also correct that your interpreter flipped through

12 some of the folders of seized documents?

13 A. I believe so, yes.

14 Q. And your interpreter asked to have certain documents

15 photocopied?

16 A. I asked to have certain documents photocopied.

17 Q. Okay. Certain seized documents were, in fact,

18 photocopied by the Austrian police that day?

19 A. That's correct.

20 Q. Do you recall exactly how many copies were made for you

21 that day?

22 A. I believe I selected about 30 documents.

23 Q. But it may have been more; it may have been less?

24 A. Not much.

25 Q. It's possible?

Page 3977

1 A. I didn't count them. That's for sure.

2 Q. You really have no idea which pages were photocopied, do

3 you?

4 A. The documents that were photocopied were selected by me.

5 Q. Yes, but you don't know which documents they were?

6 A. If you mean did I understand the contents of the

7 documents ...

8 Q. Did you understand the contents of the documents?

9 A. Not -- no.

10 Q. And you would not be able to recognise which of those

11 documents were selected for photocopying?

12 A. I believe so, yes.

13 Q. But it's fair to say that you do not know whether the

14 pages you asked for photocopying were, in fact, the ones

15 that were given back to you?

16 A. I think I got exactly what I asked for.

17 Q. But you're not sure, are you?

18 A. I'm sure.

19 Q. How are you sure?

20 A. Because the documents that I received afterwards were

21 exactly the documents I asked for.

22 Q. Did you make a record of that?

23 A. No.

24 Q. Did you take some documents away with you from the

25 police headquarters that day when you left?

Page 3978

1 A. We received, I think, one day or two days later we

2 received the photocopies from I believe Mr. Moerbauer or

3 Mr. Panzer. I can't remember.

4 Q. Did you verify whether the ones you received were the

5 same ones you chose for photocopying?

6 A. Yes.

7 Q. How did you do that?

8 A. I went through the documents.

9 Q. But you just told us you hadn't written down what the

10 documents were in the first place?

11 A. No, but I know what documents I was looking for.

12 Q. In a language you did not understand?

13 A. That's why we have an interpreter with us.

14 Q. Was the interpreter there the day after you have

15 received them?

16 A. Yes.

17 Q. While you were at the police headquarters in Vienna you

18 also looked at some videotapes, didn't you, again

19 between 5.00 and 7.30 on 18th March?

20 A. No, not on that day.

21 Q. No one from the OTP watched videotapes that day?

22 A. I believe Mr. Dutoit watched some videotapes. I

23 selected -- apart from the documents, I selected four

24 videotapes coming from a box, from the box you were

25 referring to.

Page 3979

1 Q. What happened then?

2 A. We asked for -- we asked the Austrian -- the Vienna

3 police to make a copy, but the same as for the

4 documents, they needed authorisation from the

5 investigative judge, Dr. Seda.

6 Q. And there was no such authorisation?

7 A. Yes.

8 Q. There was?

9 A. There was.

10 Q. Did they make copies for you ever?

11 A. They asked Dr. Seda, I think, the next day if they could

12 take the photocopies and the copies of the videotapes,

13 and I believe the authorisation was given the next

14 day. That's why we didn't get the documents

15 immediately.

16 Q. Is it possible that one of your colleagues from the OTP

17 left the police headquarters that day with a videotape?

18 A. The same day? No.

19 Q. But you don't know for sure, do you?

20 A. I'm pretty sure.

21 Q. I believe you said you speak German; is that correct?

22 A. I can order a meal.

23 Q. How well do you speak German?

24 A. I can order a meal and ask for the bill.

25 Q. Do you understand German better than you speak it?

Page 3980

1 A. Sometimes. If it's real German, it's close to my

2 native language, but Austrian is a bit difficult.

3 Q. But you did understand the German spoken at the police

4 station that night?

5 A. A few words.

6 Q. Were you not communicating with the police officers in

7 German at times that evening?

8 A. No.

9 Q. March 19th, the next day?

10 A. Uh-huh.

11 Q. You know that Mr. Mucic had a meeting with the Junior

12 Investigating Magistrate Ordnar about 11.00 am on the

13 19th; is that correct?

14 A. I can't remember.

15 Q. Do you know whether he met someone in the morning?

16 A. No.

17 Q. Do you know Mr. Mucic met Dr. Seda, the investigating

18 magistrate from 14:20 until 15:10 that day?

19 A. That's correct.

20 Q. Then he was interviewed by you, the OTP, from 15:30

21 until 17:00 that day?

22 A. That's correct.

23 Q. When Mr. Mucic met with Dr. Seda at 14:20 to 15:10, aside

24 from Dr. Seda and Mr. Mucic, there was an Austrian clerk

25 in the room?

Page 3981

1 A. That's correct, yes.

2 Q. And there was an Austrian court interpreter?

3 A. Yes.

4 Q. And the people from the OTP were there as well?

5 A. Yes.

6 Q. That's you?

7 A. There's me, Mr. Abribat, Mr. Nicholson, Miss Pal and

8 Mr. Dutoit.

9 Q. Did you hear what Dr. Seda said to Mr. Mucic that day?

10 A. I heard him talking to Mr. Mucic, yes.

11 Q. Did you understand what he said to Mr. Mucic?

12 A. I understood a few words.

13 Q. So you were able to understand some of the things that

14 Mr. Seda was saying to --

15 A. We also had an interpreter with us, so she understood

16 the Croat language.

17 Q. So you understood -- you yourself were able to

18 understand what Dr. Seda was saying to Mr. Mucic?

19 A. I understood a few words.

20 Q. By a combination of your knowledge of German and the OTP

21 interpreter you were able to understand what Dr. Seda was

22 saying to Mr. Mucic; is that correct?

23 A. As I explained in my first testimony, I understood

24 partly what had been said.

25 Q. Okay.

Page 3982

1 Q. Sir, I am holding a document here entitled "Prosecution

2 Response to Mucic Defence Motion to Exclude Evidence".

3 This document was recently prepared by the Prosecution

4 in regards to the evidence obtained in Vienna. Have

5 you ever seen this document?

6 A. I might have seen it. It's possible.

7 Q. In this document at page 4 it purports to say what Dr.

8 Seda said to Mr. Mucic during the interview that took

9 place on 19th March 1996 between 14:20 and 15:10. Now,

10 to be fair to you, I would like to read what this

11 document says Dr. Seda said to Mr. Mucic and perhaps you

12 can tell us whether or not you heard this said to

13 Mr. Mucic by Dr. Seda; okay?

14 THE INTERPRETER: If counsel could only speak slowly when he

15 reads. Thanks.

16 MR. O'SULLIVAN: Dr. Seda said this to Mr. Mucic and I quote:

17 "Any statement you may contribute to your defence

18 may also be used as evidence against you. In the event

19 of a conviction a confession constitutes important

20 grounds for mitigation. Therefore, please answer all

21 questions clearly, accurately and truthfully. In the

22 event of total or partial refusal to testify, your

23 behaviour will not impede the investigation. It may,

24 however, deprive you of your rights to defence".

25 Do you recall Dr. Seda said that to Mr. Mucic?

Page 3983

1 A. No, certainly not.

2 Q. Do you mean to say because of your knowledge of German

3 you didn't understand this?

4 A. (Witness nodded.). Yes.

5 Q. But your interpreter was interpreting what was said to

6 you, was she not?

7 MS. McHENRY: Objection. Asked and answered. He said he

8 understood some of what was going on. I believe this

9 has been asked and answered several times, both on

10 direct and cross-examination for the others and just

11 now.

12 JUDGE JAN: And these questions don't relate to his meal.

13 He can only order a meal in German.

14 THE INTERPRETER: Microphone please.

15 JUDGE JAN: He can only order a meal in German and these

16 words didn't relate to a meal.

17 MR. O'SULLIVAN: But the words were said to him, your

18 Honour, in the room where he was present.

19 JUDGE KARIBI WHYTE: So what? It doesn't really go to any

20 issue.

21 MR. O'SULLIVAN: The witness has said the interpreter

22 interpreted what was said to the members of the OTP?

23 A. Not everything. This doesn't relate to the work of the

24 Tribunal or what -- or it is not interesting for us. I

25 think this is a part of the proceedings of Dr. Seda.

Page 3984

1 Q. Then what was translated to you by the interpreter

2 during that meeting with Dr. Seda.

3 A. What I already explained. We heard from Dr. Seda

4 himself that Mr. Mucic asked for an attorney for his

5 extradition procedure. That's about the only thing,

6 and that he agreed to be interviewed by us. That was

7 our main concern, so ...

8 Q. So you were told by the interpreter that Mr. Mucic did

9 want to have a lawyer?

10 A. That was by Dr. Seda.

11 Q. How did you understand what Dr. Seda said? Through

12 understanding his German or through the interpreter?

13 A. Through the interpreter.

14 Q. Okay. There was a break between the meeting with Dr.

15 Seda and the OTP interview, wasn't there?

16 A. Yes.

17 Q. At the conclusion of the meeting with Dr. Seda Mr. Mucic

18 asked for a 30 minute break, didn't he?

19 A. I believe so, yes.

20 Q. And that break would have run from 15:10 to 15:40; is

21 that correct?

22 A. If it was asked at 15:10; yes.

23 Q. It was asked at 15.10, wasn't it?

24 A. Probably. I don't know.

25 Q. Isn't that the time the interview concluded with Dr.

Page 3985

1 Seda?

2 A. It is possible. I don't know. I can't remember the

3 exact time.

4 Q. And the OTP interview began at 15:30; is that right?

5 A. That's correct, yes.

6 Q. So Mr. Mucic was not given a 30 minute break, was he?

7 A. Mr. Mucic was given a break. He went away. I think he

8 went to his cell or to the toilet and came back himself

9 after 20 minutes.

10 Q. Mr. Mucic was allowed to move around by himself?

11 A. No, he was accompanied by guards.

12 Q. Tell us what happened during that 20 minute period

13 between Dr. Seda's interview terminating and the OTP

14 interview beginning?

15 A. I think after the interview of Dr. Seda we moved to

16 another room. It was a very small room. We set up

17 the video equipment and the audio equipment and we had

18 problems finding the correct angle for the video camera

19 that I remember.

20 Q. Did anyone from the OTP speak with Mr. Mucic during that

21 period?

22 A. No.

23 Q. Before March 18th had you briefed the Austrian police

24 about the Celebici case?

25 A. Me personally, you mean?

Page 3986

1 Q. Yes.

2 A. No.

3 Q. Had the OTP briefed the Austrian police, to your

4 knowledge?

5 A. I think there was an exchange of documents.

6 Q. What was said to the best of your recollection to the

7 Austrian police about the Celebici case by the OTP?

8 A. I think we gave them a brief summary of what happened.

9 Q. When you arrived in Vienna, I assume then as well there

10 was conversation with the Austrian police about

11 Celebici?

12 A. We had a few contacts with the Austrian police about the

13 arrest. That's all.

14 Q. What else was discussed with the Austrian police after

15 you arrived on 18th? You arrived on the 17th actually,

16 didn't you?

17 A. I arrived on Sunday, 17th.

18 Q. What was discussed between 17th and 18th with the

19 Austrian police about this case?

20 A. Nothing about the case. Nothing about the facts.

21 Q. But you told them why you were there, didn't you?

22 A. Of course.

23 Q. What did you tell them?

24 A. I think -- I believe that they knew that we were coming

25 and what we were coming for.

Page 3987

1 Q. In fact, you were in Vienna to arrange for the

2 extradition of Mr. Mucic back to The Hague, were you not?

3 A. No.

4 Q. What was the purpose of your trip to Vienna then?

5 A. To interview Mr. Mucic.

6 Q. You were aware of the Rule 40 request by the Prosecutor

7 of this Tribunal for provisional arrest.

8 JUDGE KARIBI WHYTE: Mr. O'Sullivan, do you mind if we have

9 a break? We will resume at 4.30.

10 (4.00 pm)

11 (Short break)

12 (4.30pm)

13 (Witness re-enters court)

14 JUDGE KARIBI WHYTE: Kindly tell him he is on his oath.

15 THE REGISTRAR: I'm reminding you that you are still

16 testifying under oath.

17 JUDGE KARIBI WHYTE: Professor O'Sullivan, you can carry

18 on.

19 MR. O'SULLIVAN: Thank you, your Honours. Sir, I only have

20 a few more questions for you. Before the break we were

21 talking about the reason why you were in Vienna in March

22 of 1996. I suggest to you that you were there to

23 arrange for the extradition of Mr. Mucic; is that

24 correct?

25 A. That's what you said, yes.

Page 3988

1 Q. Is that correct?

2 A. No.

3 Q. Then I ask why you were there, therefore, in Vienna, if

4 it was not to arrange for the extradition of Mr. Mucic?

5 A. I was there to interview Mr. Mucic.

6 Q. But obviously you were there to interview him with a

7 view to bringing him back to The Hague, were you not?

8 A. Well, extradition is something that happens according to

9 the Austrian law. It has nothing to do with the

10 members of -- it's not the duty of the members of the

11 OTP.

12 Q. But that brings us back to the briefings and the

13 conversations you had with the Austrian authorities,

14 doesn't it? You were working with them to arrange the

15 extradition of Mr. Mucic?

16 A. I am an investigator, not a legal adviser. I think

17 that is something for the Legal Department of the OTP.

18 Q. During your talks with the Austrian authorities you did

19 mention the extradition of Mr. Mucic back to The Hague,

20 did you not?

21 A. The only time I heard about extradition was when Dr. Seda

22 informed us that Mr. Mucic asked for a lawyer for his

23 extradition procedure.

24 Q. Right.

25 Q. The day before Mr. Mucic's interview with you on 19th

Page 3989

1 March was he given any forms by the OTP?

2 A. No.

3 Q. In that 20 minutes between the meeting with Dr. Seda and

4 your interview with Mr. Mucic on March 19th you say no

5 one from the OTP spoke with Mr. Mucic?

6 A. Mr. Abribat spoke to him before the start of the

7 interview.

8 Q. But between that period between the end of Mr. Seda's

9 meeting and the beginning of your meeting, did anyone

10 from the OTP speak with Mr. Mucic?

11 A. I don't think so. Mr. Mucic was not there. He was in

12 his cell.

13 Q. So Mr. Abribat did not speak to him either then?

14 A. When Mr. Mucic returned from his cell and entered the

15 room, then Mr. Abribat spoke to him.

16 Q. Prior to returning to the room for the interview?

17 A. No, I don't think so.

18 Q. On June 2nd before this Tribunal in regards to that 20

19 minute period between Mr. Mucic's meetings with Dr. Seda

20 and the OTP Mr. Abribat sat where you are sitting and

21 said, and I quote:

22 "This is the equipment we're going to use in order

23 to record this hearing. I'm also going to show you the

24 video recorder, saying this is the other piece of

25 equipment that I'm going to use and we'll respect the

Page 3990

1 forms that I gave you yesterday".

2 So if Mr. Abribat said that here under oath on June

3 2nd, does that mean that he's not telling the truth?

4 MS. McHENRY: Objection, your Honour. I think he can ask

5 him if this is a correct statement, but I don't think

6 that he's entitled or should be asked to vouch for

7 anyone's credibility. I think defence counsel asked

8 about at the time what forms meant and it's clear it

9 wasn't paper forms.

10 MR. O'SULLIVAN: If Mr. Abribat said that, is it a correct

11 statement?

12 A. That is possible. I'm pretty sure that Mr. Mucic was

13 not given any forms. That I'm sure.

14 Q. So in that regard Mr. Abribat is not telling the truth?

15 A. I think that Mr. Abribat was talking about the form

16 meaning the way in which the interview will be

17 conducted.

18 MS. McHENRY: Objection.

19 MR. O'SULLIVAN: It is "forms" with an S.

20 MS. McHENRY: Objection, your Honour. This witness has not

21 here when Mr. Abribat testified. He has already given

22 his answer. I don't think I can give evidence whether

23 it was "forms" with an S or what Mr. Abribat meant. I

24 believe defence counsel asked Mr. Abribat himself.

25 JUDGE KARIBI WHYTE: Don't you think it is not fair to ask

Page 3991

1 this witness what Mr. Abribat said? It's not even right

2 to do that. He is not answerable to what Mr. Abribat

3 said.

4 MR. O'SULLIVAN: From the end of the meeting with Dr. Seda up

5 to the beginning of your meeting with Mr. Mucic?

6 A. Uh-huh.

7 Q. Were you with Mr. Abribat the whole time?

8 A. No.

9 Q. I have no further questions, your Honours.

10 JUDGE KARIBI WHYTE: Thank you very much.

11 A. Can I just --

12 JUDGE KARIBI WHYTE: You have no question to answer.

13 Re-examination by Ms McHenry

14 MS. McHENRY: Briefly in re-examination, Mr. d'Hooge, do you

15 have anything you want to add to your last answer to

16 clarify or give a more complete answer?

17 MR. GREAVES: That's not a proper question to ask in

18 re-examination.

19 JUDGE KARIBI WHYTE: Actually it is not re-examination, is

20 it? That is not in re-examination.

21 MS. McHENRY: Your Honour, I believe that this witness and

22 all witnesses should be allowed to give a complete

23 answer, and if counsel doesn't let them finish what they

24 need to give to provide a fair answer, I think I'm

25 entitled to ask.

Page 3992

1 JUDGE KARIBI WHYTE: No, Ms McHenry, you are not being fair

2 to the procedure. All that happened was Professor

3 Sullivan finished his questions and the witness wasn't

4 satisfied with his answer, but he wasn't asking him any

5 further questions. So there is no point making any

6 answers.

7 MS. McHENRY: All right, your Honour.

8 JUDGE KARIBI WHYTE: So you can in re-examination know how

9 to put it so that you can get answers if the questions

10 were not properly answered.

11 MS. McHENRY: Thank you, your Honour. Sir, do you know

12 whether or not during this break whether or not

13 Mr. Abribat had the opportunity to speak with Mr. Mucic

14 privately?

15 JUDGE JAN: He has already answered that question and in

16 any case he says he was not all the time with

17 Mr. Abribat. How can he say anything?

18 MS. McHENRY: For instance, if he knew something about

19 Mr. Mucic and who was in charge of his custody he might

20 be able to answer that.

21 JUDGE JAN: Your question is whether Mr. Abribat met them

22 during those 20 minutes. That was not the question.

23 MS. McHENRY: That's fine, your Honour. Sir, going back to

24 some questions asked to you, I believe, by Mr. Landzo's

25 defence counsel on interpretation issues, does the

Page 3993

1 recording of the interview of Mr. Esad Landzo contain

2 both the Serbo-Croatian words spoken to and by Mr. Landzo

3 as well as the English words spoken by during the

4 interview?

5 A. I believe so.

6 Q. Do you know whether or not interpreters can interpret

7 every single word literally?

8 A. I'm pretty sure that they can't.

9 Q. Okay. When you've talked about interpreters, do you

10 know whether or not interpreters that you've worked

11 with, either with Mr. Landzo's interview or any other

12 interpreters, do you know whether or not they work for

13 the Office of the Prosecutor or the Registry of the

14 Tribunal?

15 A. I believe they work for the Office of the Prosecutor.

16 Q. With respect to Mr. Landzo's interview, did the

17 interpreter inform you that she could and that she did

18 fairly interpret what you said and what Mr. Landzo said?

19 MR. ACKERMAN: Your Honour, I object to anything that the

20 interpreter might have told him. That's a totally

21 unreliable thing. If the interpreter is going to give

22 testimony here, then I want her here so that I can

23 cross-examine that testimony.

24 JUDGE KARIBI WHYTE: These are conversations between him

25 and the interpreter. It has nothing to do with this

Page 3994

1 Tribunal.

2 MS. McHENRY: Okay. Sir, can I ask if you're aware of

3 whether or not the translation section of the Tribunal

4 compared the English and Serbo-Croatian version of the

5 transcript and the video to ensure that the translation

6 and transcription were fair and accurate?

7 A. Yes.

8 Q. Sir, now in response to questions asked by Mr. Moran on

9 behalf of Mr. Delic, I believe you have testified that

10 you had a copy of the indictment when you were in

11 Vienna. Can you indicate when you received this

12 indictment, if you know?

13 A. I'm not sure I said we had a copy of the indictment. I

14 think Dr. Manfred, the attorney, asked for a copy of the

15 indictment.

16 Q. Okay. When you were in Vienna do you know if you had a

17 copy of an indictment that had been signed by the

18 Prosecutor and confirmed by a judge of the Tribunal?

19 A. I don't think we had one.

20 Q. Okay. Thank you.

21 Q. Sir, going to 18th March 1996 in Vienna, when you were

22 at the Vienna police station did you or anyone else from

23 the Tribunal have free access to any of the seized

24 material, or were there always Austrian police officers

25 present?

Page 3995

1 A. There were always Austrian police officers present.

2 Q. Okay. Sir, you stated that after you had selected

3 certain items that you wished photocopied subsequently

4 in the next day or two -- I don't remember exactly what

5 you said -- you received photocopies of the material you

6 had requested. At that time that you received the

7 material, did you receive anything other than the

8 photocopies you had requested?

9 A. Yes, I noticed back in The Hague that instead of

10 receiving only copies, we also received four documents

11 that according to me were original documents.

12 Q. Okay. I would ask that the witness be shown what has

13 been marked for identification purposes as Prosecution

14 Exhibit 147?

15 MR. GREAVES: Was this shown to the witness during the

16 course of cross-examination? If it wasn't, it's not a

17 proper question in re-examination.

18 MS. McHENRY: Your Honour, I believe the issue was raised in

19 cross-examination. I believe that the issue was raised

20 in cross-examination, and therefore we're entitled to go

21 through it. So that's what I believe. If your

22 Honours --

23 MR. GREAVES: Your Honour, this document --

24 JUDGE JAN: What was the question asked?

25 MS. McHENRY: In cross-examination? Mr. O'Sullivan asked

Page 3996

1 this witness some questions relating to the material he

2 received from the Viennese police officers when he asked

3 for photocopies.

4 JUDGE JAN: I think the question probably was when did he

5 receive --

6 THE INTERPRETER: Microphone please, your Honour.

7 JUDGE JAN: The question asked was when did he receive

8 those copies, not that he received any other thing apart

9 from those copies.

10 MS. McHENRY: Your Honour, I believe he didn't -- defence

11 counsel did not specifically get into the details of

12 every single thing he received, but given that he raised

13 the general issue of what this witness received from the

14 Viennese police officers after he had requested

15 photocopies, I believe it's fair re-examination. I

16 will tell your Honours that, if necessary, we can recall

17 this witness later on to specifically talk about this,

18 but given that defence counsel has raised it, we believe

19 it's fair re-examination and that it would just speed

20 things along. Because this witness works in The Hague,

21 if your Honours disagree, I am not objecting too

22 strenuously, but we do believe it is fair

23 re-examination, given that defence counsel has raised

24 the issue. We believe the issue had not been raised in

25 direct, but defence counsel chose to get into it in

Page 3997

1 cross, and then as part of the re-examination the

2 Prosecution is entitled to explore the issue raised by

3 the Defence counsel.

4 JUDGE KARIBI WHYTE: I think you can -- if there is any

5 need arising, we will give them an opportunity to

6 examine on those.

7 MS. McHENRY: Okay. Thank you, your Honour.

8 JUDGE JAN: When did you receive these documents?

9 A. I believe we received the documents around 20th March.

10 JUDGE JAN: They are not part of the index which we

11 admitted this morning.

12 MS. McHENRY: Your Honour, I believe Mr. Moerbauer explained

13 that they are not, in fact, part of the index because in

14 making photocopies it appeared -- Mr. Moerbauer stated

15 that the original was given to the Prosecution such that

16 Mr. Moerbauer was able to say by going back to the copies

17 he had made and kept for his own records that these

18 documents, 147 -- that he did have the photocopies of

19 them but that he did not have the originals and they

20 were not part of his index. I believe he explained

21 that. Is it 147A, B and C? Sir, I ask you to look at

22 those documents and tell me if you recognise them and,

23 if so, what they are?

24 A. These are the documents I was talking about.

25 Q. Okay.

Page 3998

1 JUDGE KARIBI WHYTE: Show them to the Defence.

2 MS. McHENRY: Yes, your Honour. They have previously been

3 provided to the Defence.

4 JUDGE KARIBI WHYTE: The originals?

5 MS. McHENRY: The originals. They have been given copies

6 of everything and allowed to inspect whatever they

7 wished. Certainly I'm happy if any of them want to

8 look at any of these documents again, to do so.

9 A. I believe there is another document.

10 MS. McHENRY: Okay. So in other words there was -- I'm

11 sorry, Mr. d'Hooge. Are you stating there was an

12 additional document with those but that is also -- those

13 documents were given to you at the time you received the

14 photocopies as well as one additional document?

15 A. I believe so. The four documents were stapled

16 together.

17 Q. Okay.

18 A. I believe I only have three documents here.

19 Q. Okay. For the use of defence counsel, there was a

20 fourth document which we do not believe is relevant.

21 If defence counsel wishes to inspect that, we are happy

22 to get it and provide it for you. I have no further

23 questions.

24 JUDGE KARIBI WHYTE: Any cross-examination arising from

25 this questioning?

Page 3999

1 MR. ACKERMAN: Your Honour, I just want to accept the offer

2 to get that and let us inspect it, the document that

3 they've decided is not relevant.

4 JUDGE KARIBI WHYTE: I suppose since the form has been

5 spoken about the fourth one should be available for

6 inspection.

7 MS. McHENRY: I have the originial right now and I also have

8 copies. I don't know which defence counsel would like

9 to --

10 JUDGE KARIBI WHYTE: Of the fourth one?

11 MS. McHENRY: Yes, your Honour. We had selected the

12 documents that we thought were relevant and this was not

13 one of them, but I'm happy to show it to defence

14 counsel, and if they wish, they can show it to the

15 witness. We have extra copies for defence counsel, if

16 that would also assist.

17 MS. RESIDOVIC (in interpretation): Can I please look at the

18 other documents as well?

19 MR. GREAVES: Would your Honours think it very rude of me if

20 I went and peered over Mr. Ackerman's shoulder?

21 MR. ACKERMAN: You can't read it.

22 MS. RESIDOVIC (in interpretation): May I put a question to

23 the witness in connection with this?

24 JUDGE KARIBI WHYTE: Yes, you can. You are free to.

25 MS. RESIDOVIC (in interpretation): Mr. d'Hooge, can you tell

Page 4000

1 me whether you speak Bosnian?

2 A. I do not.

3 Q. Can you tell me when you were in Room 331 did you take

4 these documents out of the cardboard box in which you

5 said that the videotapes were?

6 A. No, I believe I selected the document out of a folder.

7 I didn't take them out.

8 Q. Mr. d'Hooge, the folder was not in the cardboard box; is

9 that right?

10 A. I believe the folder was on a table.

11 Q. Mr. d'Hooge, the papers that you took out of the folder,

12 did they have any recognisable indication for you, who

13 does not speak Bosnian?

14 A. First of all, I didn't take the documents out of the

15 folder. I selected them and repositioned them so it

16 was easy for the Vienna police to make a copy to see

17 what documents we wanted, and if I can see the documents

18 I can indicate why I wanted a copy of that document to

19 be taken.

20 Q. I'm asking you, Mr. d'Hooge, whether in repositioning

21 those documents you marked those documents with a sign

22 that you can always recognise, since you do not speak

23 Bosnian?

24 A. I didn't mark the documents. I only repositioned them.

25 Q. And such unmarked documents were given by you to one of

Page 4001

1 the policemen of the Austrian police for photocopying;

2 is that correct?

3 A. I repeat that I did not take out the documents. I

4 repositioned them in the folder.

5 Q. Did you ask that those documents be copied?

6 A. Yes.

7 Q. Were they photocopied while you were still in Room 331?

8 A. No.

9 Q. In Room 331 there was no photocopying machine; is that

10 right?

11 A. That is not the reason why they were not copied while we

12 were there. The members of the Vienna police wanted to

13 have authorisation of Dr. Seda, if they could, for the

14 copy of the documents.

15 Q. Therefore, while you were there between 5.00 and 7.30 pm

16 on that day no documents were photocopied, because there

17 was no authorisation from Dr. Seda; is that correct?

18 A. That's correct.

19 Q. Mr. d'Hooge, did you give these documents for experts to

20 see and analyse the handwriting?

21 A. No.

22 Q. Do you know at all when these documents were

23 photocopied?

24 A. I believe that they were photocopied the moment that the

25 Vienna police had authorisation from Dr. Seda, and I

Page 4002

1 believe also that they couldn't get the authorisation

2 the same day because it was after working hours and

3 probably Dr. Seda was not in his office any more.

4 Q. Are you sure, Mr. d'Hooge, that when you repositioned the

5 documents, you didn't mark them with any recognisable

6 number or mark?

7 A. I'm sure.

8 Q. You have seen just now, sir, some marks on these papers

9 beginning with "00". Did these numbers exist when you

10 allegedly saw these papers in the Austrian police?

11 A. Could you show me the documents? I don't know what the

12 mark ...

13 JUDGE KARIBI WHYTE: If you will oblige him, he might

14 indicate to you how he chose him and how he recognised

15 them.

16 MS. RESIDOVIC (in interpretation): Will you please be so

17 kind as to tell us whether when you were repositioning

18 those documents you saw the numbers that are now to be

19 found on this paper?

20 A. The number was not on the document at that time. This

21 is an internal from the Tribunal.

22 JUDGE KARIBI WHYTE: What were the marks, identification

23 signs used in repositioning them?

24 A. I will explain, your Honour. Let's say this is a

25 folder in which the document was. The document was

Page 4003

1 like that. Since I found that this document was

2 interesting, I put it like that in the same folder. I

3 just repositioned it, which was clear for the Austrian

4 police that this was a document that I wanted to be

5 photocopied.

6 MS. RESIDOVIC (in interpretation): Would you please be so

7 kind as to confirm something once again that I think

8 you've said. These folders were on one of the tables

9 in Room 331; Mr. d'Hooge, therefore you just said that

10 those documents, as far as you can remember, or rather

11 according to your knowledge were in a folder that was on

12 one of the tables in Room 331 of the police building in

13 Vienna?

14 A. I believe that the folders were on a table and I can be

15 even more precise; when you enter the room, on the right

16 side on a table.

17 Q. And you, Mr. d'Hooge, have no idea where they were --

18 they came from before they reached that table?

19 A. If my memory is okay, I believe that we were told that

20 they came from the premises of Inda-Bau.

21 Q. But at that point in time, Mr. d'Hooge, no folders or

22 files had any marks that were recognisable by you; is

23 that correct?

24 A. That is correct, yes.

25 Q. The moment you received these papers in The Hague

Page 4004

1 several days later, they did not have the mark that you

2 can now see on this paper; is that correct?

3 A. That is correct.

4 Q. Actually, they had no marking; is that correct?

5 A. That is correct.

6 Q. This mark was placed later, after the paper reached the

7 premises of the prosecution; is that correct?

8 A. This is clearly an internal number from the OTP.

9 Q. Thank you very much. I have no additional questions.

10 MR. MORAN: Your Honour, I have one or two. I may be going

11 outside of the scope of re-examination, but if I do,

12 would the court stop me?

13 JUDGE KARIBI WHYTE: Yes, we will stop you.

14 MR. MORAN: I am volunteering to be stopped. Mr. d'Hooge,

15 do you recall on June 3rd I showed you this document,

16 the indictment?

17 A. Yes.

18 Q. And on re-examination Ms McHenry asked you if you had a

19 copy of this with you in Vienna and you responded no?

20 A. That is correct.

21 Q. I never asked you if you had a copy of it, did I?

22 A. I can't remember. It's possible, yes.

23 Q. If I told you the transcript said I never asked you if

24 you had a copy with you, would you take that as

25 truthful?

Page 4005

1 A. Yes.

2 Q. Would you take it on faith that the only question I

3 asked you about it was whether or not the date on it was

4 March 19th?

5 A. I believe so.

6 Q. Is the date on it still March 19th if it was on June

7 3rd?

8 A. Could you repeat the question, please?

9 Q. If the date that Richard Goldstone -- it shows Richard

10 Goldstone signed it, when you looked at it on June 3rd,

11 was March 19th, 1996, it would still be that date?

12 A. That's correct.

13 Q. Okay. Fine. Thank you.

14 JUDGE KARIBI WHYTE: I think this is all for this

15 witness. So he can be discharged.

16 MS. McHENRY: Yes.

17 JUDGE KARIBI WHYTE: Any other witness?

18 MS. McHENRY: Your Honour, at this time the Prosecution

19 would move into evidence the statement taken by the

20 Office of the Prosecutor of Mr. Mucic as well as the

21 statement taken by the Office of the Prosecutor of

22 Mr. Delic and Mr. Landzo, and in just one minute I'll give

23 you those numbers. The Prosecution would tender into

24 evidence what has been marked for identification

25 purposes as Prosecution Exhibit 101, which is Mr. Mucic's

Page 4006

1 interview by the Office of the Prosecutor, and the video

2 recording; Mr. Landzo's interview and the recording,

3 which is 102; and Mr. Delic's interviews and the

4 recordings, which are 103.

5 JUDGE KARIBI WHYTE: That is not by this witness.

6 MS. McHENRY: Yes, your Honour. I know it has been a

7 while, but on direct examination this witness discussed

8 at length the fact that he was the person who took both

9 -- all of them, all of these three interviews and he

10 identified them and was cross-examined about the

11 circumstances by all them.

12 JUDGE KARIBI WHYTE: Actually that will not be the end of

13 his evidence. This re-examination should not have been

14 the end of his evidence.

15 MS. McHENRY: I'm sorry. I am confused. On direct

16 examination this witness testified and identified the

17 interviews of Mr. Mucic taken by the Office of the

18 Prosecutor, the interviews of Mr. Landzo and the

19 interviews of Mr. Delic. He was cross-examined by the

20 Defence attorneys, Mr. Mucic, Mr. Landzo and Mr. Delic

21 about the circumstances of those statements, and we are

22 now tendering them into evidence. It did not really

23 come up today, because the -- it came up in direct

24 examination. The cross-examinations of Mr. Landzo and

25 Mr. Delic's counsel was last week, but this witness did

Page 4007

1 testify about all of those issues, identified all those

2 exhibits and was cross-examined about his testimony

3 surrounding the giving and the taking of those

4 interviews.

5 JUDGE KARIBI WHYTE: The proper challenges about the

6 admissibility comes at the time you are tendering them.

7 MS. McHENRY: Your Honour, I believe that we tendered them

8 and defence counsel indicated and your Honours indicated

9 that they preferred to wait until cross-examination for

10 your Honours to actually rule on the issue: so now that

11 cross-examination is completed, I am now re-tendering

12 them.

13 MR. GREAVES: Your Honour, if the matter is to be the

14 subject of argument, I would rather do that tomorrow,

15 please, when I have had an opportunity to review all the

16 evidence that has been given concerning the

17 admissibility of these interviews rather than do it this

18 evening, please.

19 JUDGE JAN: It is an admitted position that these

20 interviews were held and the individual they were video

21 recorded and he is the gentleman who recorded these

22 interviews.

23 MR. GREAVES: Yes, to all of those, but --

24 JUDGE JAN: They can be tendered now in evidence.

25 THE INTERPRETER: Microphone, please.

Page 4008

1 JUDGE JAN: They can now be tendered in evidence and

2 whatever the probative value is can be seen later.

3 MR. GREAVES: I understand what your Honour is saying but

4 there is a substantive motion before the Tribunal

5 concerning admissibility. One would like to know when

6 that matter is going to be argued.

7 JUDGE KARIBI WHYTE: I think this is the stage when

8 actually you should argue it.

9 MR. GREAVES: Well, I anticipated that is what was being

10 said. I hope that your Honour will be so kind as to

11 give me overnight to review the evidence before

12 addressing you on the motion.

13 JUDGE KARIBI WHYTE: I think that is the proper thing. We

14 will have to come back tomorrow morning.

15 MS. McHENRY: No objection.

16 MR. GREAVES: I am grateful to my learned friend.

17 MR. GREAVES: Your Honour, there is one matter I would like

18 to raise before you rise this evening. Earlier today

19 transcripts pages 6, lines 14-14 and page 8, lines 1-3

20 my learned friend Mr. Niemann, leading counsel for the

21 Prosecution, made a sweeping allegation against all

22 defence counsel in this case. Taking two matters into

23 consideration, one that last week my learned friend

24 Mr. Ackerman's graciously offered apologies were equally

25 graciously accepted by my learned friend Ms McHenry and,

Page 4009

1 two, that he has had a whole day to reflect on the words

2 he spoke, all of my friends are wondering when

3 Mr. Niemann has anything to say to your Honours.

4 MR. NIEMANN: No, your Honour, I'm not prepared to withdraw

5 what I said. The comment I made was in relation to the

6 failure of the Defence to give the opportunity to the

7 Prosecution to review the videotape, which was in their

8 possession and they could easily have done so. In my

9 submission fair failure to do that was deliberate. In

10 my submission that does not help the progress of these

11 proceedings. So I'm not prepared to withdraw the

12 allegation.

13 JUDGE KARIBI WHYTE: Is it your position that the

14 allegation was intentionally made and that you did not

15 regret it?

16 MR. NIEMANN: Your Honours, what I said was that in my

17 submission the Defence were trying to take over the

18 proceedings by this approach. It was highly

19 inappropriate. They know better and they could have

20 made this material available. It would have assisted

21 the proceedings. It would have assisted the

22 Prosecution, and they deliberately chose not to do it.

23 JUDGE KARIBI WHYTE: So you also deliberately made

24 allegations. Now my position is that these are matters

25 which might have happened in the heat of the moment and

Page 4010

1 would have been regretted immediately after and there

2 could be mutual apologies from either end. I don't

3 think there is any point sticking to a position which

4 could easily be solved.

5 MR. NIEMANN: If your Honour pleases, I take your Honour's

6 guidance on that.

7 JUDGE KARIBI WHYTE: Yes. I suppose you will sleep over it

8 and we will come tomorrow morning.

9 MR. NIEMANN: If your Honour pleases.

10 JUDGE KARIBI WHYTE: Thank you very much, Mr. Greaves.

11 MR. GREAVES: I am grateful to your Honour.

12 JUDGE KARIBI WHYTE: Thank you. The Trial Chamber will now

13 rise.

14 (5.10 pm)

15 (Hearing adjourned until 10 o'clock tomorrow morning)

16 --ooOoo--