Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4011

1 Thursday, 12th June 1997

2 (10.00 am)

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

4 Welcome, Mr. Ostberg.

5 MR. OSTBERG: Thank you very much, your Honour.

6 JUDGE KARIBI WHYTE: Can we have representations.

7 MR. OSTBERG: I am Eric Ostberg appearing today with Ms.

8 Teresa McHenry, Mr. Grant Niemann and our case manager,

9 Ms. Elles van Dusschoten.

10 JUDGE KARIBI WHYTE: From the Defence?

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

12 Honours. I am Edina Residovic, defence counsel for

13 Mr. Zejnil Delalic. With me in the defence team is

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

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

16 Honours. My name is Zeljko Olujic. With me is

17 Mr. Michael Greaves. We are the Defence counsel for

18 Mr. Zdravko Mucic.

19 MR. KARABDIC (in interpretation): Good morning, your

20 Honours. I am Salih Karabdic. I am defence counsel

21 for Mr. Hazim Delic. With me in the team is Mr. Thomas

22 Moran, attorney from Houston, Texas.

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

24 Ackerman appearing on behalf of Mr. Esad Landzo. I am

25 ably assisted today by Cynthia McMurrey. Thank you.

Page 4012

1 JUDGE KARIBI WHYTE: Thank you very much. Can we have the

2 witness now?

3 MR. NIEMANN: Perhaps, your Honour, before that happens and

4 arising out of the application that was made late

5 yesterday afternoon, your Honours, first of all, if any

6 members of the defence staff were offended by my remarks

7 yesterday I want to extend my apologies. I hold them

8 all in very, very high regard. I consider them

9 colleagues of the highest professional standard. If

10 the court was offended in any way by those remarks, I

11 want to sincerely apologise for that also.

12 With that, your Honours, Mr. Ostberg is now back

13 with us and I seek your Honours' leave to withdraw for

14 the time being.

15 MR. GREAVES: Before my learned friend goes, I thank him for

16 his kind apology. It is accepted in the spirit in

17 which it was given and we thank him.

18 JUDGE KARIBI WHYTE: Now Mr. Grant Niemann, thank you very

19 much for behaving in the best traditions of the Bar.

20 We appreciate it. Thank you.

21 MR. NIEMANN: Thank you, your Honour.

22 JUDGE KARIBI WHYTE: Can we have the witness, please?

23 MS. McHENRY: Your Honour, the Prosecution does have a

24 witness who is ready to appear. I don't know whether

25 or not yesterday we had moved to have admitted into

Page 4013

1 evidence certain material, including videotapes and

2 transcripts of statements. I believe some of them may

3 have already been admitted and maybe the Registrar could

4 assist us, but in case there's any confusion, we do seek

5 to have the videotapes and the transcripts of the

6 interviews taken by the Office of the Prosecutor of

7 Mr. Mucic, Delic and Landzo admitted into evidence.

8 JUDGE KARIBI WHYTE: Yes. I think that's what we are here

9 for this morning.

10 MS. McHENRY: I'm sorry. Then if your Honours are waiting

11 for Mr. Bart d'Hooge, because I believe that all that was

12 left was legal argument rather than any additional

13 questions, we do not have him in the witness room.

14 He's in the building. If your Honours wish that he be

15 present for this, we can get him. Certainly

16 I believed, and I am sorry if I misunderstood the court,

17 that it was legal argument. We did not think it was

18 necessary to have him here.

19 JUDGE KARIBI WHYTE: Can I have any responses on the other

20 side.

21 MR. GREAVES: I was certainly not expecting Mr. d'Hooge to be

22 here today and I don't think it is appropriate for him

23 to be present during legal argument on the issues that

24 are raised on this matter. My friend and I are ad idem

25 on that matter.

Page 4014

1 MS. McHENRY: He was available outside if your Honours want

2 him but I don't believe it's necessary.

3 JUDGE KARIBI WHYTE: Can we have legal arguments about the

4 tendering of any of the documents? Let me find out from

5 counsel. I thought from the evidence we have had here

6 Mr. Abribat was part of the exercise of recording all

7 questions and whether he needs to be recalled for the

8 purposes of being examined on anything else except you

9 are satisfied from the evidence we have had and it is

10 not necessary.

11 MR. GREAVES: I certainly have no -- sorry. I will start

12 that again. I have no application for him to be

13 recalled and examined further by either myself or by my

14 learned friends. I think your Honour has now heard all

15 the evidence in relation to the OTP interviews that you

16 can possibly hear.

17 JUDGE KARIBI WHYTE: So we are satisfied that we can carry

18 on with the arguments.

19 MR. GREAVES: May it please your Honours, your Honours have,

20 I'm sure, my motion which was filed, I think, on 8th

21 May, and also I'm sure the Prosecution's response

22 thereto. I don't propose to go over the ground that's

23 set out in those documents, since that would be a

24 pointless exercise. It's there in writing and your

25 Honours can see the outline of the argument from that.

Page 4015

1 What I would like to do this morning is to make some

2 further submissions on matters of law and also address

3 you on matters of fact.

4 The defendant's case in regard to the interviews

5 that was conducted with him in March 1996 in Vienna

6 relate, in my submission, not just to those conducted by

7 the Office of the Prosecution but also to the interview

8 conducted by the Austrian police. The interviews with

9 the Office of the Prosecution cannot be placed in some

10 separate compartment as if it stands on its own, quite

11 isolated from the procedures of the Austrian police.

12 It must be seen, we respectfully submit, as simply a

13 continuing part of an entire process that took place

14 over a period of about four days.

15 THE INTERPRETER: Would you please slow down a little?

16 MR. GREAVES: I've had a little voice whispering in my ear

17 telling me to slow down and I shall do so. My

18 apologies to all concerned.

19 We submit that that process which took place over

20 that period of time, the 18th-21st March, was flawed in

21 such a way that the only proper conclusion that this

22 honourable Tribunal can come to is to exclude all the

23 interviews that were conducted with Mr. Mucic at that

24 time.

25 As I've indicated, I've set out, or we've set out

Page 4016

1 a number of propositions of law in our motion of 8th

2 May. So I turn now straightaway to the interview with

3 the Austrian police.

4 We submit this: this interview is not admissible

5 for two principal reasons. Firstly, the manner in which

6 the interview was procured offends against Rule 95 of

7 the Rules of Procedure and Evidence. I don't propose

8 to read that Rule out. Your Honours are well familiar

9 with it and know exactly what it contains and what the

10 purpose of it is. One has, in our respectful

11 submission, to look at the document which sets out the

12 rights of prisoners. I'm sorry. Will your Honour

13 just give me a moment, please? That is the document

14 which appears as Annexe 3 to the Prosecution's response

15 to the Defence motion. Your Honour, in their response

16 they describe the Austrian criminal procedure as having

17 an active and caring attitude. In our respectful

18 submission, and with considerable regret, I have to say

19 that that is a complete fallacy. The rights afforded

20 under Austrian law to arrested persons fall a long way

21 short of those which this Tribunal has determined are

22 appropriate for use in these cases.

23 Can I remind you, first of all, please, of some of

24 the features of that information sheet for arrested

25 persons? Paragraph 4 of that document, in our

Page 4017

1 respectful submission, offends against the spirit of the

2 Rules of Procedure and Evidence, in which it makes it

3 quite plain that there is, quite simply, no proper right

4 to have counsel assisting you. Can I remind you of the

5 phraseology? It says this in the English translation:

6 "If you want your legal counsel to come and see

7 you as soon as possible, make it known. You may not

8 have legal counsel present when you are questioned for a

9 criminal offence".

10 I pause there and respectfully remind your Honours

11 of Rules 42 and 43 and the similar rules that exist for

12 accused persons. Those rules make it quite plain that

13 this Tribunal -- the view of this Tribunal is that you

14 have a right to have counsel present during the course

15 of interview, and you are entitled to have advice during

16 the course of that interview. We respectfully submit

17 that that phrase, which is read out to suspects in

18 Austria, offends greatly against that principle. It

19 goes on:

20 "In that case, therefore, you will have an

21 opportunity to see and speak to your lawyer only", and I

22 stress the word "only", "after you have been questioned,

23 but even then only if it has been determined that you

24 will be transferred to the court prison and that there

25 is sufficient time remaining until then".

Page 4018

1 I stress the words "only" there, because it makes

2 it plain, in my submission, that you do not have an

3 unfettered right to see your counsel, and only then

4 after the questioning has taken place. In our

5 respectful submission, that, too, offends greatly

6 against the rules of this Tribunal and the spirit

7 thereof. It goes on:

8 "Such consultation with your lawyer will,

9 moreover, be considered only if there is no risk of

10 prejudicing the course of justice".

11 As you will recall from my learned friend

12 Mr. Moran's cross-examination, it is evident that the

13 effect of that is that you only get to see your lawyer

14 if the police approve. To call that an active and

15 caring attitude is, in my respectful submission, simply

16 quite extraordinary. Any system which has a system in

17 place which permits you only to see your lawyer if the

18 police approve smacks, I am afraid, and I say it again,

19 and I regret to have to say this about the Republic of

20 Austria, smacks of the police state. It is a right

21 which this Tribunal recognises from the word go that you

22 have, and there is no interference with that right.

23 Unfortunately the rights accorded to you by the Austrian

24 criminal procedure offend against that principle.

25 I move now to paragraph seven in the English

Page 4019

1 translation of that document. This deals with the

2 matters that have been raised about what is being said

3 to you in order to get you to talk to the police:

4 "You will have an opportunity to speak about the

5 accusations against you".

6 There is nothing wrong with that but it goes on:

7 "If you do not use it and remain silent instead,

8 you are depriving yourself of the possibility to give an

9 account of things from your perspective and to defend

10 yourself".

11 In our respectful submission what that means is

12 this: you have, of course, the right to remain silent,

13 but if you don't -- if you exercise that right to remain

14 silent, you are effectively removing your right to

15 defend yourself. In our respectful submission, that

16 offends against the spirit of the Rules of Procedure and

17 Evidence that have been determined as being appropriate

18 for this trial:

19 "Your statements may also help to clear up a

20 mistake. You need not speak about the case. However,

21 in the event of a sentence, if you confess or otherwise

22 contribute through your statements to elucidating the

23 truth, it will be taken into account as grounds for

24 mitigation".

25 Of course, when you are addressing a sentencing

Page 4020

1 judge, one of the features that any good counsel

2 pleading in mitigation will advance before the learned

3 judge is this: "Your Honour, one feature that you can

4 take into account in sentencing this man is the fact

5 that he, when faced with the matter, admitted it

6 immediately to the police". That's plainly right, but

7 if what is said in order to get the interview going is:

8 "If you confess, it will go better for you", that, to

9 use the phraseology that certainly two of the learned

10 judges sitting on this Tribunal will recall from

11 practitioners' days, the judges' rules, that amounts to

12 an inducement. It's an inducement to confess, and one

13 remembers only too well before the coming of the Police

14 and Criminal Evidence Act 1984 in England how

15 allegations were made and frequently substantiated that

16 police officers would say to suspects who were being

17 interviewed, for example: "You won't get bail unless you

18 confess. We'll arrest your wife and talk to her unless

19 you tell us what you know", and so on and so forth.

20 The phrase: "In the event of a sentence if you confess

21 or otherwise contribute through your statements in

22 elucidating the truth, it will be taken into account as

23 grounds for mitigation", that, in my respectful

24 submission, is a clear offer, prior to interview, that:

25 "If you confess, it will go better for you". The

Page 4021

1 effect of that is this: in the mind of the listener he

2 knows that if he confesses he'll get a lighter

3 sentence. In the old phraseology of the common law,

4 that is an inducement, and it offends, in our respectful

5 submission, against the notion that the spirit of the

6 Rules of Procedure and Evidence.

7 It goes on further:

8 "In any case, your first statement is of

9 considerable importance as evidence for the further

10 proceedings".

11 One wonders who is going to be using that

12 evidence. Effectively it is the state that is going to

13 use that evidence and effectively the state will want to

14 use it against him. So everything about the way in

15 which a defendant is approached by the Austrian police,

16 in our respectful submission, is designed to get people

17 to confess, whether it's true or not. Will your Honour

18 just give me a moment, please?

19 If I can just bring the Tribunal up-to-date with

20 what has happened in the intervening period in my

21 system, and I do not want to harp on about the

22 advantages of any particular system, but it perhaps

23 helps to see where the idea of the judges' rules has

24 gone to. In 1984 we had a new act passed, the Police

25 and Criminal Evidence Act, and the one which deals with

Page 4022

1 confessions is Section 76. It perhaps may give some

2 idea of how the notion has developed as to the exclusion

3 of evidence. Section 76 of that Act says this:

4 "In any proceedings a confession made by an

5 accused person may be given in evidence against him in

6 so far as it is relevant to any matter in issue in the

7 proceedings and is not excluded by the court in

8 pursuance of this section".

9 Subsection 2 says this:

10 "If in any proceedings where the Prosecution

11 proposes to give in evidence a confession made by an

12 accused person it is represented to the court that the

13 confession was or may have been obtained (a) by

14 oppression of the person who made it or (b) in

15 consequence of anything said or done which was likely in

16 the circumstances existing at the time to render

17 unreliable any confession which might be made by him in

18 consequence thereof, the court shall not allow the

19 confession to be given in evidence against him, except

20 in so far as the Prosecution proves to the court beyond

21 reasonable doubt".

22 THE INTERPRETER: If counsel could please just slow down for

23 interpretation. Thank you very much.

24 MR. GREAVES: " ... except in so far as the Prosecution

25 proves to the court beyond reasonable doubt that the

Page 4023

1 confession, notwithstanding that it may be true, was not

2 obtained as aforesaid".

3 The definition of confession is this:

4 "Confession includes any statement wholly or

5 partly adverse to the person who made it, whether made

6 to a person in authority or not, and whether made in

7 words or otherwise".

8 In essence, that is a statutory codification of

9 the rules which had become well-known throughout the

10 Commonwealth, common law jurisdictions as the judges'

11 rules and in essence re states those rules. I present

12 that codification in this way. It demonstrates, in our

13 respectful submission, what the spirit of rules is in a

14 wide section of the jurisdictions throughout the world

15 and demonstrates, in our submission, that the evil that

16 is aimed at is to prevent people in authority, police

17 officers, customs offers, whoever it may be, going to

18 someone and getting him to confess by improper means.

19 One of the interesting features of the 1984 Act

20 was this, that it introduced tape recordings of

21 interviews, and that was done specifically with this in

22 mind. That was done to protect not just defendants but

23 also the police officers, against whom numerous

24 allegations were made of various kinds. It's a matter

25 of note that one of the features that this Tribunal has

Page 4024

1 plainly picked up from such a system is Rule 43, which

2 requires the careful recording in a particular way of

3 interviews. I use that as an example to demonstrate

4 the way in which this Tribunal's rules of procedure and

5 evidence are plainly reflective of the kind of

6 procedures that exist in the world outside.

7 As I've said, it gives me no pleasure to criticise

8 the laws of a European nation with which my country

9 enjoys good relations. The fact is, in our respectful

10 submission, that what passes for human rights in that

11 country's criminal procedure falls lamentably far short

12 of the standards which this honourable Tribunal has

13 set. We respectfully submit that to permit the

14 interview with the Austrian police to be admitted would

15 offend quite clearly against rules 95 and 89(d).

16 The second basis on which I respectfully submit

17 that this Tribunal should reject the admissibility of

18 that interview is this. Firstly, it wasn't regrettably

19 audio or video recorded. Secondly, it was conducted

20 with a man who on the evidence of Mr. Moerbauer must have

21 been desperately tired. Your Honours will recall the

22 evidence of Mr. Moerbauer on this point. He admitted

23 that he, who was not the person who was the suspect, was

24 very tired. Your Honours can well imagine that after a

25 day of that kind, where from 2.15 in the afternoon until

Page 4025

1 some time just after midnight Mr. Mucic was put through

2 the various procedures -- and I complain not about him

3 being arrested and I complain not about the fact of his

4 being interviewed -- but the reality was by the time he

5 came to be interviewed and by the time the interview

6 came to an end, your Honours can properly infer from the

7 evidence before you that he must have been a man who was

8 desperately tired.

9 I add this to that, that he was interviewed over a

10 period of some four and three-quarter hours by a total

11 of some five different police officers being in and out

12 of that room. In my respectful submission to have an

13 interview of that length is in itself oppressive.

14 These features alone, the facts that I've just

15 laid before you, and certainly when taken together with

16 what I have described as the breaches of human rights,

17 to which I have adverted, would also on their own be

18 sufficient, in our respectful submission, to cause the

19 exclusion of the interviews.

20 I turn now to linking that interview with the full

21 procedure that was then carried out by the Office of the

22 Prosecution. I make this point. The first is this:

23 we have submitted in our motion that there is a proper

24 cause to consider what might loosely be described as the

25 cross-culture aspect of this procedure. This was a man

Page 4026

1 who comes from part of the former Yugoslavia.

2 JUDGE JAN: Before you proceed further, I just want to know

3 under the English law an accused has a right to have his

4 counsel present when he is being interviewed by the

5 police.

6 MR. GREAVES: Yes. I have never been present at a police

7 interview, because that is done in the split --

8 JUDGE JAN: It's a question of law really. Does the law

9 provide it at the time?

10 MR. GREAVES: The law makes it plain that he has at all

11 times the right to have his solicitor present at an

12 interview. The solicitor can only be removed if he is

13 misbehaving in some way and that can only be given on

14 the authority of, I think, a Police Superintendent. So

15 in essence his lawyer is entitled to be there at all

16 times if he wants him.

17 Mr. Mucic was a man who plainly came from part of

18 the former Yugoslavia. He is a man who grew up there

19 and will have had all the cultural overlay that such a

20 life would have given him. Plainly he had lived in

21 Austria for quite some time and was no doubt familiar

22 with the street-wise ways of that country, but the fact

23 of the matter is that over a period of four days he was

24 subjected to two quite different cultures, and I have

25 adverted to the way in which the Austrian civil rights

Page 4027

1 differ from the civil rights of this Tribunal. Within

2 a space of four days he was subjected to those two quite

3 distinct systems, which, in my respectful submission,

4 are pretty well opposed to one another in the terms of

5 the kinds of rights that they afford.

6 That leads me then to Mr. Abribat. The

7 Prosecution plainly relies upon him as a witness of

8 fact. What they say is this and what he says is this,

9 that the previous conversation which is referred to at

10 the beginning of his first interview with the Office of

11 the Prosecution, Mr. Abribat claims that that took place

12 in the space of one or two minutes on 18th March 1996.

13 I am going to go, and I hope your Honours will bear with

14 me as I go through the facts that are laid before you --

15 can I remind you of what my learned friend Ms McHenry

16 said on 14th May of this year? In dealing with this

17 issue about the cross-culture aspect she said this:

18 "The Rules state very clearly that an accused must

19 be informed of his rights and that the accused must

20 knowingly and voluntarily waive those rights".

21 In our respectful submission, that was a

22 concession by the Prosecution that it goes simply beyond

23 someone saying "yes"; that there has to be an informed

24 knowing consent to the issue of: "I'm not going to have

25 a lawyer". I remind your Honours of that, because the

Page 4028

1 Prosecution plainly said that, and I have extracted it

2 from my computer today.

3 Let us just look at what Mr. Abribat had to say.

4 When he was examined-in-chief he said this:

5 "We asked for permission to be in Austria when

6 Mr. Mucic was arrested. There were four of us

7 representatives of the Office of the Prosecution, plus

8 an interpreter".

9 He then goes on to describe the man called

10 Mr. Dutoit and who the investigators were. He describes

11 contacting the authorities in Austria. He was asked

12 this:

13 "Question: On 18th March did you or anyone from

14 the Office of the Prosecutor have any contact with

15 Mr. Mucic?

16 Answer: On the day that he was arrested? On

17 that day all five of us went back to the police

18 station. We had a discussion with the police officer

19 who was responsible for the operation and after the

20 discussion I asked him whether I could meet Mr. Mucic to

21 explain to him who we were and what the procedure would

22 be that could be followed, should he accept to give

23 testimony -- make a statement, rather. Then I asked to

24 see him.

25 Question: What happened, please?

Page 4029

1 Answer: The Austrian police officer said that

2 that was all right. He said that I could come with him

3 as well as the interpreter and that he would let us

4 speak with Mr. Mucic. That is what was done. I went

5 with the police officer and the interpreter. He took

6 us to a kind of cell, like the cells we have in my

7 country, and there I met Mr. Mucic.

8 Question: Can you please tell us what happened

9 when you met Mr. Mucic?

10 Answer: I introduced myself. I told him who

11 I was. I introduced the interpreter and I told him

12 that we were members of the Office of the Prosecutor of

13 the International Tribunal, that there were specific

14 proceedings that were followed at the International

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

16 that in order to do so we would have to honour the Rules

17 of Procedure and Evidence. That's what it was. I

18 spoke to him for maybe one minute, maybe two minutes".

19 He then describes the language in which he

20 spoke. He says this a bit further on:

21 "There was no real discussion, because I simply

22 came in to see Mr. Mucic and to explain who I was, that

23 is to introduce myself, to explain the rules, and I

24 simply wanted to know whether he agreed or not to be

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

Page 4030

1 meant "yes", and that's all".

2 Can I ask your Honours now, as we look at that

3 particular section, to imagine yourself as fresh young

4 lawyers again, seeking to explain to your clients the

5 Rules of Evidence and procedure that are contained in

6 Rules 42 and 43? I invite your Honours to consider

7 this: do you think you could explain them to somebody

8 whose language was different from yours in one or two

9 minutes? I pose that question to invite your Honours to

10 consider whether this witness was actually telling you

11 the truth when he claims to have explained the Rules of

12 Procedure and Evidence to Mr. Mucic. In our respectful

13 submission to try to explain Rules 42 and 43 to someone

14 like Mr. Mucic in a couple of minutes is simply a

15 ludicrous notion.

16 JUDGE JAN: This conversation was not video taped?

17 MR. GREAVES: And it wasn't video taped. If it had been

18 Mr. Abribat would be able to demonstrate to us what he

19 had done. It is for that reason that I adverted to the

20 introduction in the United Kingdom of tape recording

21 being for the protection of both defendants and police

22 officers and that's why this Tribunal has such rules.

23 It is there to protect the defendant and the

24 investigators. It is there to prevent just this sort

25 of conversation taking place or just the sort of

Page 4031

1 conversation that I alleged to Mr. Abribat had taken

2 place in the 20 minutes that followed the court

3 appearance before Judge Seda and the beginning of the

4 interviews with the Office of the Prosecution.

5 He goes on to describe how the day after the

6 arrest the entire team, that is the five people:

7 "We went to the investigating judge's office in

8 Austria, the person who was in charge of the case. We

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

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

11 were extradition proceedings going on and that after

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

13 questions, that we wanted to speak. We had asked very

14 specifically that we be the ones to carry out the

15 questioning of Mr. Mucic for the Prosecutor".

16 I make this small point. It is not an enormous

17 point, but it is perhaps unusual to permit one side of

18 an argument to go and talk to the judge before the

19 proceedings start. That in itself offends somewhat

20 against the proprieties of justice. Of course, there

21 are occasions when ex parte applications are made either

22 by prosecutors or by defence counsel, but those are very

23 unusual and they arise in very specific circumstances.

24 To have people going off and chatting to the judge

25 before the defendant is brought up, in the absence of

Page 4032

1 the defendant, offends, in our respectful submission,

2 against any proper notion of open justice.

3 JUDGE JAN: But in your system there are no investigating

4 judges.

5 MR. GREAVES: No, but you shouldn't go talking to judges in

6 the absence of one of the parties.

7 JUDGE JAN: Investigating judges.

8 MR. GREAVES: Of course, but here are people who have no

9 legal standing in Austria talking to an investigating

10 judge. Nothing was told to Mr. Mucic that this

11 conversation has taken place. He goes on to describe

12 how the meeting with Mr. Mucic subsequently took place in

13 front of Judge Seda, with his interpreter, the five

14 members of the team -- their names I have already given

15 you -- from the Office of the Prosecutor:

16 "Mr. Mucic was brought in. The investigating judge

17 spoke with Mr. Mucic. He spoke in German. That was

18 interpreted for Mr. Mucic through the judge's

19 interpreter. We said nothing. We did not participate

20 in that discussion. We simply listened and I asked our

21 translator to give me a synopsis of what the judge was

22 saying to Mr. Mucic. That's how I was able to

23 understand that the judge was apparently explaining the

24 extradition proceeding after which, with his

25 authorisation, we could ourselves question him".

Page 4033

1 It goes on:

2 "If I recall correctly, I followed these things in

3 a really synoptical form, what my interpreter was saying

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

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

6 he should insist on his right to having an attorney

7 during the extradition proceedings".

8 Well, I remind your Honour of the questioning of

9 Mr. Abribat as to why he thought he was in Vienna.

10 There was a Rule 40 request, of course, and it's plain,

11 in my respectful submission, that why Mr. Abribat was

12 there, despite his protestations, which your Honours may

13 find extraordinary, protestations to the contrary that

14 he had no idea there were going to be any extradition

15 proceedings and he was not a specialist in extradition

16 -- one wonders why he bothered to go to Vienna at

17 all. The reality is Mr. Abribat knew that one of the

18 purposes of his being there was to try to get him to be

19 extradited at the end of the day and he was part of that

20 process. He goes on to say this. He was asked about

21 what happened at the end of that discussion:

22 "Question: Was there any discussion that you were

23 aware of whether Mr. Mucic wished or should have an

24 attorney with respect to an interview to be conducted by

25 the Office of the Prosecutor as opposed to the

Page 4034

1 extradition proceedings?

2 Answer: No, not at all, from what I remember and

3 I think I do remember things rather well, it was a

4 question of a lawyer but only for the extradition".

5 Your Honour, in my submission what, in fact, the

6 document says is. "I want a lawyer" and that was an

7 expression that he had said not once but twice during

8 the course of that day and also before the learned

9 judge, Judge Ortner. He says this:

10 "It seems to me that the judge must have explained

11 we would then have a hearing but before that took place,

12 if Mr. Mucic wanted a rest, wanted a break before we

13 began -- I think he must have asked him that question

14 because Mr. Mucic did, in fact, say he wanted to have a

15 break before we would begin".

16 He then goes on to describe how the meeting took

17 place. He says this:

18 "The guards must have asked Mr. Mucic to

19 withdraw. We also left the office. The judge told us

20 that we could not use the office we were in because it

21 had to be used for something else".

22 THE INTERPRETER: Could counsel please slow down again a

23 little bit. Thank you.

24 MR. GREAVES: "I do not really remember what it was, but it

25 had to be used for something else in any case and we

Page 4035

1 would have to go into an adjoining room. It was

2 actually adjoining the office. It could be compared to

3 a kind of place where people speak to prisoners in a

4 prison. It was a narrow room. That's where we

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

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

7 interpreter, Peter Nicholson, who was responsible for

8 the recording equipment that we'd brought with us, and

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

10 legal expert, Mr. Dutoit, was involved doing other things

11 with the Austrian authorities, so didn't stay with us.

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

13 door. We prepared the recording equipment. That is

14 the tape recorder and the camera. It took us a little

15 bit of time because it was a very small room. We had

16 to find the proper angle where we would be able to take

17 pictures properly. That was not an easy thing to do.

18 Then we waited until Mr. Mucic came back.

19 Question: What happened when Mr. Mucic came?

20 Answer: When Mr. Mucic arrived, he sat down in

21 front of us, and then at that point we began to ask the

22 questions.

23 Question: Can you tell us more exactly what exactly --

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

25 equipment already going? Can you just explain exactly

Page 4036

1 how that worked, if any conversation occurred before the

2 recording equipment started? Can you please just tell

3 us about that?

4 Answer: Mr. Mucic arrived. He sat down. I

5 think I said "hello" to him again. I must have shown

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

7 that we're going to use in order to record this

8 hearing. I'm also going to show you the video

9 recording saying "this is the other piece of equipment

10 we are going to use" and we will respect the forms that

11 I gave to you yesterday". I said to him: "We can begin

12 when you want". He must have said "all right" and then

13 we began.

14 Question: When you said what happened then, was the

15 recording equipment turned on?

16 Answer: From the point on that he said "all

17 right", that is from the point that he agreed to our

18 recording what he said, we started the equipment and

19 I again told him what point we were at, who was there.

20 I don't exactly recall all the legal forms that I had.

21 Do you want me to repeat exactly what they were, these

22 legal forms, as saying what was said at that point?"

23 He then describes that. In cross-examination he

24 said this about the meeting he had held with Mr. Mucic

25 the day before:

Page 4037

1 "I explained the procedure in English so that the

2 Austrian police officer could understand me, but the

3 texts are worded in English and in French".

4 He goes on:

5 "I wanted to explain the Rules of Procedure that

6 applied in questioning a suspect and then on that basis

7 to know whether he would agree to an interview".

8 He denied wanting to ask him any questions and

9 said that he had been clear on that.

10 "I simply wanted to explain the Rules of

11 Procedure, and I didn't enter into any dialogue with

12 him".

13 He said this in answer to my question, which was

14 this:

15 "Question: Did you ask him the question: "Do you

16 want a lawyer?"

17 Answer: No, I did not put that question to

18 him. I explained the Rules of Procedure of the

19 Tribunal to him and told him the conditions in which and

20 circumstances in which he could have a lawyer."

21 I pose this question to your Honours: if he never

22 asked him the question: "Do you want a lawyer?", how

23 could he possibly have known at the beginning of the

24 interview that Mr. Mucic didn't want a lawyer? The

25 answer is this: he did know that Mr. Mucic didn't want a

Page 4038

1 lawyer because he had had a conversation with him about

2 that very subject in the 20 minute period before the

3 interview began, because he plainly did not ask him in

4 the only other conversation he had with him, because

5 that's the evidence he has given to the court, so there

6 must have been another conversation in which Mr. Abribat

7 did ask him about wanting a lawyer. That can only have

8 been in the period of 20 minutes between Judge Seda

9 ending his hearing and the interview beginning. I want

10 your Honours to remember that piece of evidence. I'll

11 repeat it. I asked him this question:

12 "Question: did you ask him the question: "Do you

13 want a lawyer?"

14 Answer: No, I did not put that question to him".

15 In our respectful submission, that is a crucial

16 piece of evidence and it goes to undermine the

17 Prosecution's case that nothing untoward happened. In

18 our respectful submission something thoroughly untoward

19 did happen, and I would invite your Honours to reject

20 Mr. Abribat's evidence on the point of what happened and,

21 indeed, Mr. d'Hooge on the point of what happened in the

22 20 minutes between 15:10 hours and 15:30 hours on 19th

23 March. He's not telling you the truth. Something did

24 happen. I suggested to him that he was effectively

25 brow-beating Mr. Mucic into having interviews without a

Page 4039

1 lawyer. It's quite extraordinary, isn't it, that here

2 was a man, Mr. Mucic, who throughout the hearings before

3 the Austrian judges was saying: "I want a lawyer", and

4 then suddenly he turns round and says: "All right. I'm

5 happy not to have a lawyer". It's quite extraordinary,

6 in our respectful submission, that that should take

7 place without anything being done or said to him.

8 We respectfully submit that something did happen

9 in those 20 minutes, something which Mr. Abribat has

10 concealed from your Honours, and that the only possible

11 and proper inference to draw from the evidence I have

12 laid before you is that something did take place, and it

13 was oppressive, and it was designed to get him to agree

14 not to have a lawyer.

15 I will not bore your Honours by going on at great

16 length about the rest of the evidence. It's a matter

17 of note that Mr. Abribat seemed unable to recall, as your

18 Honours will remember, Rule 42(B) and Judge Karibi Whyte

19 will remember having an exchange with me about that very

20 topic. Your Honour said this, that that should have

21 been explained to Mr. Mucic. Mr. Abribat seemed unable

22 to remember that that was part of Rule 42.

23 In our submission, the evidence of Mr. Abribat,

24 when examined carefully, simply ultimately undoes the

25 Prosecution's case when they say that this was

Page 4040

1 voluntarily and knowingly a waiver of his right to

2 counsel. Would your Honour just give me a moment,

3 please?

4 During the course of his cross-examination he said

5 this, that in relation to whether or not Mr. Mucic wanted

6 a lawyer he said:

7 "I didn't get a full translation".

8 In our respectful submission, something that this

9 man should have done is to inform himself properly and

10 fully of what was being said to the learned judge and to

11 make sure that he was properly aware of what it was

12 Mr. Mucic desired. He failed to do so and, in our

13 respectful submission, he failed in a way that

14 undermines the process that was conducted. He should

15 have enquired properly what it was that Mr. Mucic wanted

16 a lawyer for and have satisfied himself before

17 interviewing him that this was a waiver, if waiver it

18 was, that was knowingly and freely given.

19 This point was put to him, that he was

20 exceptionally keen to interview this man. Your Honours

21 may think there is a good reason for that, and you will

22 recall from your days in practice that if you can get a

23 man whilst he is in the first moments of confusion and

24 worry at being arrested, if you can get him to talk at

25 that time, you are doing very well, and you will always

Page 4041

1 get something out of someone. There was no need to

2 hurry along into interviews with Mr. Mucic. An

3 indictment was in the stage of preparation and it was

4 signed on the 19th and confirmed on the 21st. There

5 had been a provisional request under Rule 40. There

6 was every likelihood that this man was going to be

7 transferred promptly here to The Hague, where all the

8 facilities would exist and the rules exist to permit

9 interviews. It could have been done at great leisure

10 rather than in the uncomfortable surroundings of this

11 tiny room. Your Honours may want to ask this question

12 of yourselves: why should there be this almost indecent

13 haste to interview this man? Was it because they knew

14 if he got a lawyer in, that might get this man to clam

15 up and they wouldn't get anything out of him and that's

16 why they were so keen to persuade him not to have a

17 lawyer? I ask your Honours to look at that point and

18 wonder why it is they should have had this urgent desire

19 to interview him, when there was every likelihood they

20 could have done it in more comfortable surroundings and

21 at greater leisure here in the Hague.

22 Can I now turn to the evidence of Mr. Gschwendt,

23 whom you will recall was -- I think his rank was Captain

24 or Hauptmann from the Austrian police. He was unable to

25 assist Mr. Abribat in any way as to the nature of the

Page 4042

1 conversation that had been conducted with him. Your

2 Honours will recall the evidence of the Austrian police

3 that essentially Mr. Mucic was kept in Room 331.

4 Mr. Abribat claims to have spoken to him in a cell and

5 had this one or two minute explanation of the Rules of

6 Procedure and Evidence in a cell. Your Honours will

7 have to look at that and decide whether Mr. Abribat was

8 being entirely truthful with you when he says that's

9 where he conducted this conversation.

10 Captain Gschwendt is unable, as he says, to

11 reconstruct the conversation, so that the only person

12 upon whom you could begin to place any reliance as to

13 the truth or otherwise of what he says is Mr. Abribat

14 himself. In my respectful submission, for the reasons

15 that I have identified, Mr. Abribat is not a witness upon

16 whom you can rely as being either honest or accurate.

17 I will not go on about Mr. Moerbauer. His evidence has

18 been very recent, and your Honours will recall it.

19 What it comes to is this, we say. Firstly, when you

20 take the whole procedure together you have a situation

21 where the first interview by the Austrian police was one

22 which was procured by means which were in breach of his

23 human rights, and there is then the argument that what

24 was subsequently done becomes the fruit of the poisoned

25 tree, to use a well-worn phrase.

Page 4043

1 In our respectful submission, taking all these

2 factors together, the cross-cultural aspect, the

3 evidence that I have adverted to in this case, the only

4 proper conclusion that this honourable Tribunal can come

5 to is that all these interviews were, in fact, obtained

6 in breach of Rule 95, and this court must take what I

7 appreciate will be a bold decision, but must say to

8 itself: "The Prosecution has not proved beyond

9 reasonable doubt that Mr. Mucic knowingly and voluntarily

10 waived his right to counsel. The Prosecution has not

11 proved beyond reasonable doubt that the interview with

12 the Austrian police was free and fair", and if that be

13 right, the Defence of Mr. Mucic says this: the only

14 proper course is to say: "We exclude this evidence and

15 we exclude it because it's in breach of Rule 95 and Rule

16 89(D)".

17 Are there any other matters upon which I can

18 assist any of your Honours? Those are my submissions in

19 support of the motion.

20 MS. McHENRY: Your Honour, let me note some things as a

21 preliminary matter. One is that I am not repeat

22 everything that is in the Prosecution's response to

23 Mr. Mucic's motion. We believe it was a lengthy

24 response, which discusses in some length the law, the

25 fact and what we submit is the appropriate analysis.

Page 4044

1 So, like my learned colleague, I will not repeat those,

2 but I will rely on them in the assumption that your

3 Honours have read them.

4 Also preliminarily we will note that we, the

5 Prosecution, do not agree that the standard here is

6 beyond a reasonable doubt. We think that is incorrect

7 under the rules of this Tribunal and under the Tadic

8 decisions, but in any event we will just note that even

9 were that the standard, it is absolutely clear that

10 these statements, in particular the Office of the

11 Prosecutor's statement that we are discussing now, would

12 meet that and any other standard.

13 I will briefly discuss just --

14 JUDGE KARIBI WHYTE: Let us get this clear before we go

15 on. Is it your submission that the proof of

16 voluntariness is not beyond reasonable doubt?

17 MS. McHENRY: That is correct, your Honour. I know

18 different systems have different standards and, for

19 instance, I do understand that from where Mr. Greaves

20 comes from that is the standard. It is not in the

21 United States. I believe under the rules of this

22 Tribunal and under the Tadic Decision with respect to

23 admission of evidence that is not the relevant

24 standard. It is, of course, the relevant standard for

25 guilt. Let me be very clear.

Page 4045

1 JUDGE JAN: I was not given a copy of the information

2 sheet. I do not have a copy of the information sheet

3 which the Austrian police made Mr. Mucic to sign before

4 recording his statement.

5 MS. McHENRY: I believe it's part of the record in

6 evidence.

7 JUDGE JAN: Do you have the English translation?

8 MR. GREAVES: I am afraid mine is marked in all sorts of

9 ways that I would not like your Honour to see.

10 JUDGE JAN: I know. It contains your notes.

11 MR. GREAVES: It is attached as Annexe 3 to my learned

12 friend's motion. It may be you can derive it from

13 there.

14 MS. McHENRY: Yes, your Honours. I can provide your

15 Honours with a copy of it. It is annex 3. I believe

16 the witness, Mr. Gschwendt, identified the German

17 original. Here is another copy. I will briefly

18 discuss just for a minute, because my colleague,

19 Mr. Greaves did, the Austrian interview. As your

20 Honours know, the Prosecution has offered previously to

21 make submissions about both Austrian law and specifics

22 about how, in fact, the Austrian statement should be

23 admitted. Your Honours have deferred ruling on that,

24 but because Mr. Greaves has discussed it in some length,

25 I will briefly respond and again renew the Prosecution's

Page 4046

1 offer to have Mr. Stefan Waespi, who is much more

2 knowledgeable about both Austrian law and, in fact,

3 international -- and how that is in accordance with all

4 of the human rights conventions and human -- fundamental

5 human rights in detail, but now I would just like to

6 briefly respond, and if your Honours want further --

7 JUDGE JAN: I just want to ask you a question.

8 MS. McHENRY: Yes.

9 JUDGE JAN: We are not bound by any national rules in this

10 investigation. The standard of -- what should I say --

11 the grounds which have to be given to the accused before

12 he makes a statement can be spelled out from Rule 42.

13 Even though a statement may be admissible under a

14 national system, are we bound to accept it if it doesn't

15 come up to the standards of Rule 42 of our rules?

16 MS. McHENRY: I believe that your Honours may certainly

17 accept statements --

18 JUDGE JAN: It may be admissible in the Austrian courts,

19 but are we bound to accept it if it doesn't come up to

20 the standards of Rule 42? That's the question I want to

21 ask.

22 MS. McHENRY: Your Honour, my response is whether or not it

23 is or is not admissible in an Austrian court is entirely

24 not controlling for this court. So the fact that we

25 believe that it would be is not controlling, but even if

Page 4047

1 it were not admissible, we believe that would not be

2 controlling. We believe what's controlling is Rule

3 95. We believe Rule 42 --

4 JUDGE JAN: You haven't got my -- probably I have not been

5 able to make you understand. Rule 42 lays down the

6 standards. These are the precautions which the suspect

7 is to be informed of or the precautions which are to be

8 taken. If a statement is recorded by police, although

9 admissible under a national system, we do not criticise

10 that national system at all, but if a statement does not

11 come up to the standard laid down by our own rules, are

12 we bound to admit it into evidence just because it is

13 admissible in evidence under a national system?

14 MS. McHENRY: I do understand, your Honour. I am afraid I

15 am the one who is not being clear and you are. You are

16 certainly not bound to accept it just because it is

17 admissible.

18 JUDGE JAN: I am not criticising any system.

19 MS. McHENRY: I understand that, your Honour. Without

20 criticising or not criticising any particular system,

21 the Prosecution's submission is that you are not bound

22 by the fact that a statement would be admissible in a

23 national court. The Prosecution would argue, however,

24 that Rule 42 does not control interviews taken by

25 non-Tribunal -- by persons other than the Office of the

Page 4048

1 Prosecutor, and that Rule 42 is not the appropriate

2 standard for evaluating statements taken by other

3 systems. The appropriate standard is Rule 95, which

4 was the information, was the evidence, in this case a

5 statement of an accused, was it taken into violation of

6 fundamental human rights, or would its admission somehow

7 seriously affect the integrity of the proceedings.

8 JUDGE JAN: Standards of fundamental rights differ from

9 state to state. In some states the standards are much

10 higher. In other states the standards are not so

11 high. So the standards really don't count. The

12 question is whether a statement which does not come up

13 to the criteria laid down by our Rule would be

14 admissible in evidence before us.

15 MS. McHENRY: Your Honour, the Prosecution certainly would

16 agree that standards differ in all kinds of different

17 systems, but I believe that is why your Honours adopted

18 Rule 95, which states that you are not bound either

19 positively or neglect difficulty by any national law,

20 including admission of evidence, or even how they take

21 it, but that it is accepted that there are some

22 fundamental rights which will control and which are a

23 minimum, as well as anything that would seriously

24 undermine the integrity.

25 JUDGE JAN: You see, for example, in my country any

Page 4049

1 statement made by an accused person before the police is

2 inadmissible in evidence. So that's a different

3 standard altogether. When we come to an International

4 Tribunal we have to have the standards which are laid

5 down by our own rules.

6 MS. McHENRY: Your Honour, that's right. I think the only

7 thing that we differ -- that it appears we may differ on

8 is that the Prosecution believes that the appropriate

9 standard is that set out in Rule 95, and your Honour

10 seems to be suggesting that the appropriate standard is

11 Rule 42.

12 JUDGE JAN: Maybe I'm just doing a little louting (sic),

13 nothing more than that.

14 JUDGE KARIBI WHYTE: Let me get this fairly straight.

15 Wouldn't you agree that any interviews which could be

16 accepted in proceedings in this Tribunal should be able

17 to pass the test of Rule 42?

18 MS. McHENRY: No, your Honour. We believe that there may

19 well be evidence, including statements of an accused,

20 which do not meet the requirements of Rule 42, for any

21 number of reasons, including that a system is different,

22 but were still fundamentally fair. The fact that we

23 often -- and I will state that, for instance, I believe

24 in Tadic there was an interview taken of Mr. Tadic in the

25 German courts that was admitted and I do not believe

Page 4050

1 that all the requirements of Rule -- I cannot speak to

2 that, but I believe that when you have another system,

3 it is not possible for the exact same rules to always

4 apply.

5 JUDGE JAN: My fear is that Rule 42 can be easily bypassed

6 by not recording the statement and instead only

7 producing the statement recorded under the national

8 system and national laws. Rule 42 can be bypassed

9 easily.

10 MS. McHENRY: Your Honour, it may well be that in certain

11 cases where your Honour -- I'm sorry -- where it appears

12 that the Office of the Prosecutor has intentionally

13 tried to circumvent the requirements of Rule 42 by

14 relying on a national system, that that -- that your

15 Honours would determine that that somehow fundamentally

16 offended the integrity of these proceedings where

17 there's any sort of suggestion that the Prosecution

18 intentionally manipulated the situation.

19 JUDGE JAN: I do not say they have done it but it can be

20 done. Rule 42 can be easy bypassed just relying on the

21 statement recorded by the local police. That's my

22 fear.

23 MS. McHENRY: Then I believe --

24 JUDGE JAN: I'm sure it will not be done by the Prosecution

25 because you are very honest people, because you are more

Page 4051

1 interested in upholding the justice, but I say it is

2 possible to bypass Rule 42 by not recording a statement

3 of your own and merely relying on the statement recorded

4 by the national police under their national laws.

5 MS. McHENRY: If your Honours found that the circumstances

6 under which a statement was taken in another system were

7 offensive in terms of this Tribunal's notions of

8 fairness and integrity, certainly your Honours would

9 have the authority and even the duty to exclude it.

10 What the Prosecution is submitting is that in this case

11 and in many cases before this Tribunal people are

12 arrested in other places where different systems must

13 apply, and different places have their own interest in

14 obtaining evidence quite appropriately, and they follow

15 their own system, as they are required to do, and the

16 issue is: does it somehow -- was it fundamentally

17 unfair rather than to specifically always read out Rule

18 95 or not and with respect --

19 JUDGE KARIBI WHYTE: But isn't it the reason why we are not

20 bound by national systems when, in fact, national

21 systems might even offend against our own rules?

22 MS. McHENRY: Yes, your Honour.

23 JUDGE KARIBI WHYTE: That is why we are not bound by it.

24 MS. McHENRY: That's exactly right, your Honour. That's

25 why I believe Rule 95 was explicitly set out.

Page 4052

1 JUDGE KARIBI WHYTE: I suppose it could be, but except

2 perhaps you tie yourself down with the definition of who

3 is a Prosecutor under Rule 42. That's where the

4 interview is done by you.

5 MS. McHENRY: That is right. I believe the definition of

6 Prosecutor is set out in the definitions. The

7 Prosecutor is defined in your Honours' Rules -- the

8 Rules of this Tribunal as:

9 "The Prosecutor refers to the Prosecutor appointed

10 pursuant to Article 16 of the Statute".

11 So we certainly agree that Rules 42 and 43 apply

12 to all interviews taken by the Prosecutor or the Office

13 of the Prosecutor. That's right.

14 JUDGE ODIO BENITO: To be clear, but only in that case,

15 because we have the Article 18 of the Statute that

16 stated the right of the suspect, paragraph 3. So

17 according to your opinion we should understand that if

18 questioned, it's by the Prosecution only.

19 MS. McHENRY: Yes, your Honour. We believe that's clear

20 from the entire reading of the Rule, even if it doesn't

21 in every single case where it talks about it state the

22 Prosecutor and we believe that's the correct

23 interpretation and it is clarified by the exact wording

24 of Rule 42.

25 JUDGE ODIO BENITO: Thank you.

Page 4053

1 MS. McHENRY: So the fact that Austrian law is not

2 controlling is why, in fact, the Prosecutor has not had

3 and does not intend to provide your Honours with

4 specifics about what Austrian law is and is not, because

5 we believe it's not relevant. What's relevant is: was

6 the interview taken fairly, and again I will emphasise

7 that what we were talking about here is not about the

8 admission of the Austrian statement, because your

9 Honours have postponed that, but only about the Office

10 of the Prosecutor interview, but I feel constrained just

11 to say a few remarks about the Austrian interview,

12 because my learned colleague has said that that was so

13 offensive that it somehow taints everything else that

14 has, and so the Prosecution must respond. In fact, in

15 its submission there was nothing offensive about

16 anything that happened in the Austrian interview. The

17 accused was advised that he could consult with an

18 attorney, including before deciding whether or not to

19 give an interview.

20 JUDGE JAN: Just a moment. Now you are talking about the

21 interview recorded by the OTP.

22 MS. McHENRY: I am talking about the Austrian interview.

23 Since Mr. Greaves has indicated that it was so offensive

24 that it taints the Office of the Prosecutor interview, I

25 am just going to briefly respond to that, because the

Page 4054

1 Office of the Prosecutor does not believe that anything

2 that happened in the Austrian interview was offensive,

3 and in a minute I'll also talk about how it also doesn't

4 -- no matter what happened, it doesn't taint the Office

5 of the Prosecutor interview.

6 JUDGE JAN: Just a minute. We don't intend to criticise

7 the Austrian system at all. We are just wondering.

8 It might be said we are saying the Austrian system is

9 against fundamental rights. We are not criticising the

10 system.

11 MS. McHENRY: I understand that your Honours are not saying

12 that. I believe, and I believe my learned colleague

13 Mr. Greaves would agree with this, Mr. Greaves believes it

14 does. That is one of the basis for his arguments.

15 Even though your Honours have not suggested, and I do

16 not think anyone has interpreted anything your Honours

17 have said to criticise the Austrian system, because

18 Mr. Greaves has, I just want to briefly speak to it.

19 JUDGE KARIBI WHYTE: What the rules say is we are not

20 bound. It does not mean that we cannot take it into

21 account.

22 MS. McHENRY: That is exactly right.

23 JUDGE JAN: For our purposes.

24 MS. McHENRY: It may well be that national system are often

25 instructive or helpful. I do not mean to suggest that

Page 4055

1 at all, in fact. That is why I am going to briefly

2 discuss Austrian law just for a minute in response to

3 Mr. Greaves, if I may.

4 JUDGE KARIBI WHYTE: I mention that so that you can see the

5 relevance of the argument of Mr. Greaves.

6 MS. McHENRY: Yes, your Honour. I believe that, as opposed

7 to the searches, that even Mr. Greaves agrees that

8 Austrian law was complied with, with respect to the

9 interview of the accused, and Austrian law provides --

10 and everyone agrees that this happened in this case --

11 that Mr. Mucic was advised that he had the right to

12 consult with an attorney and he chose not to do so. It

13 is also the case that under Austrian law, and Mr. Mucic

14 was informed of this, you do not have the right to have

15 your lawyer present during questioning. We note that

16 that is the case in many, many countries, including in

17 many European countries other than Austria, and this has

18 consistently been found to be in accordance with

19 fundamental human rights, including the European

20 convention of human rights.

21 JUDGE JAN: Just a minute. What is the position -- in

22 England Mr. Greaves said a lawyer can be present. What

23 is the position in the United States?

24 MS. McHENRY: Your Honour, it is the case, your Honour, in

25 the United States that the accused has the right to have

Page 4056

1 an attorney present when he is questioned. I will note

2 that my understanding, and I am not an expert in

3 Austrian law or in the United Kingdom law, and we can

4 supply, if your Honours wish it, more details later, but

5 I don't -- I believe that there are certain

6 circumstances in the United Kingdom where an accused is

7 not permitted to have his counsel present. In fact, I

8 believe that in a recent case in the European Court of

9 Human Rights, the case was Murray V United Kingdom, a

10 judgement of 8th February 1996 in the Human Rights Law

11 Journal, 1996, pages 39-51, and under this the Criminal

12 Evidence Order of 1988, which I believe is applicable to

13 Northern Ireland says that an accused's right to counsel

14 may be delayed for 48 hours. An accused in that case

15 was interviewed ten times without having the opportunity

16 to talk to his attorney and the European Court found

17 that was not impermissible under the European Convention

18 on Human Rights.

19 MR. GREAVES: I hate to interrupt my learned friend and I

20 don't wish to disturb the flow of her argument which I

21 am listening to with great care. In fact, that

22 legislation is particularly aimed at terrorist

23 offences. It is in particular circumstances.

24 MS. McHENRY: There may be particular circumstances in the

25 United Kingdom where an accused is not permitted to have

Page 4057

1 his counsel present. That has been found to be in

2 accordance with fundamental human rights, including the

3 European Convention. So the fact that Austria has this

4 we do not believe somehow makes the Austrian interview

5 offensive to fundamental human rights.

6 The second issue Mr. Greaves spoke to was the idea

7 that he is telling someone, in addition to telling them

8 they do not have to speak, but if they do give a

9 confession, such could be considered mitigating

10 evidence, the idea of telling someone who is accurate,

11 what is, in fact, the law, that that constitutes

12 improper inducement the Prosecution finds simply

13 unacceptable. Certainly the police are entitled to

14 tell people and arguably should tell the people both

15 sides.

16 JUDGE KARIBI WHYTE: Let me not interrupt your train of

17 thought. You mean if somebody is asked to confess, or

18 agree with doing what you did not do, that is a good way

19 of saying the person is telling the truth?

20 MS. McHENRY: I do not suggest that if someone is told they

21 should confess regardless of the truth of the matter

22 that that would not be a problem, but the Prosecution

23 strongly suggest that as part of advising someone of

24 their rights that they are advised that they should

25 speak truthfully and that if they are subsequently

Page 4058

1 convicted, a confession could constitute mitigating

2 evidence, that although it may not be usual in some

3 countries, where an accused may, in fact, be encouraged

4 not to speak, there is absolutely nothing wrong with it

5 and one could argue it is appropriate such that an

6 accused has the correct information in front of him and

7 if something the accused could do at this time could

8 later be considered mitigating evidence, there is

9 nothing improper with telling him that because at the

10 same time the accused is told: "You don't have to speak

11 and obviously what you speak may later hurt or help

12 you". The Prosecution doesn't believe that there can be

13 any argument that telling someone who is

14 uncontroversial, what is clearly correct law, could

15 constitute somehow improper inducement.


17 JUDGE JAN: In the context of a confession what would be

18 the inducement -- in the context of a confession what

19 would be an inducement? Something telling him if he

20 makes a statement he will be able to avoid some pain,

21 some loss in property or in person?

22 MS. McHENRY: Certainly --

23 JUDGE JAN: If you tell him you will gain by making an a

24 confession, isn't it an inducement?

25 MS. McHENRY: You are not telling the accused he will

Page 4059

1 gain. At the same time you are telling the accused

2 whatever he says may be used against him. To say: "If

3 you tell the truth, it may later help you" the

4 Prosecution believes is absolutely fair. It's not as

5 if he was told -- Mr. Greaves mentioned some arguments

6 that had been found improper, such as: "If you confess

7 we won't go arrest your wife" or something like that,

8 but the issue is: is something an improper inducement?

9 The fact that by talking someone is able to give their

10 side of the story or if they are later convicted that it

11 would constitute mitigating evidence, the Prosecution

12 thinks there can be nothing, nothing improper about

13 telling someone what the law is, so that they are

14 entitled to make the decision, because there may be many

15 circumstances where it is -- if an accused is convicted,

16 that his confession will be used as mitigating evidence,

17 and he may wish to have that information while he makes

18 his decision: "Should I talk or should I not?"

19 The final issue raised by Mr. Greaves is that

20 Mr. Mucic was tired, and the Prosecution believes that

21 the evidence does support that Mr. Mucic was tired, but

22 the Prosecution does not believe that that means that

23 there was anything improper in continuing the

24 interview. Mr. Mucic was told he did not have to speak

25 and Mr. Mucic could have stopped the interview any time

Page 4060

1 he wanted. Arrested persons may often be tired. We

2 may often be tired. The issue is: are you unable to

3 make rational decisions or somehow otherwise unable to

4 think? The Prosecution believes there is no evidence

5 that Mr. Mucic was in such a state. To the contrary, a

6 review of his statement shows that he was in full

7 control of his faculties at all time. An accused can

8 always state they're tired and they may often be tired,

9 but the issue is: was the accused in control of his

10 faculties, and the Prosecution suggests that the

11 evidence overwhelmingly shows that he was. If

12 anything, the fact that he may have been tired goes to

13 the weight rather than the admissibility of his

14 statement.

15 The Prosecution would now like to go to what we

16 consider at this particular point the actual relevant

17 issue, which is the Office of the Prosecutor

18 interview. We would point out that the Office of the

19 Prosecutor interview was entirely separate from the

20 Austrian police interview.

21 JUDGE KARIBI WHYTE: Please. I think that is what really

22 gives me some anxiety, the continuity between the two

23 interviews and the different, inconsistent warnings.

24 That gives me anxiety. If you can --

25 MS. McHENRY: Your Honour, it is the case that with this

Page 4061

1 Tribunal every accused is going to be at various points

2 faced with different legal systems, and the issue is:

3 was there some sort of unfair or improper confusion, and

4 in this case the Prosecution believes it is very clear

5 that the two were always treated as separate entities,

6 and that the accused, Mr. Mucic, understood them as

7 separate. We will point out in this regard that the

8 Austrian police were not present at the Office of the

9 Prosecutor interview. Similarly, the Office of the

10 Prosecutor interviewers were not present for the

11 Austrian interviews. The proceedings were different.

12 They were different persons, they were different places,

13 they were different times. Most importantly, the

14 procedure for each was clearly explained to the

15 accused. If the accused was confused he may have

16 chosen to try to speak to an attorney, but he chose not

17 to. The rights were very clearly on numerous occasions

18 told to Mr. Mucic, and the Prosecution believes the

19 evidence is clear that he did understand that they were

20 different proceedings. That's why one of the reasons

21 the Prosecution believes Rule 42 is so strict is because

22 there are going to be different systems, and there

23 should not be unfair confusion about the governing

24 rules. In this case that's why the accused was, I

25 believe, on six different occasions all tape recorded

Page 4062

1 advised of his rights under the Tribunal. He was

2 advised by the Tribunal people, in a Tribunal interview

3 with no one else. It was explained to him at the

4 beginning that these were people from the members of the

5 Office of the Prosecutor. The Prosecution believes

6 that the fact that there were two different interviews

7 does not mean that somehow the accused could not

8 understand what is very clearly set out to him.

9 I will then go on. The relevant persons who gave

10 evidence about the Office of the Prosecutor interview

11 and the circumstances leading up to it were Lieutenant

12 Gschwendt, Mr. Abribat and Mr. d'Hooge. Starting again

13 responding to Mr. Greaves, Mr. Greaves points out on the

14 18th Mr. Abribat for a few minutes met with Mr. Mucic to

15 introduce himself and to give him an overview of the

16 rules and see if he wanted to potentially give an

17 interview. Given the circumstances and the fact that

18 Mr. Mucic did not have to give an interview, given the

19 fact that the Austrian authorities did not have to

20 permit an interview, it was an entirely reasonable thing

21 to find out if -- to introduce themselves and give

22 Mr. Mucic a very brief description of who they were and

23 what they wished to discuss with him, which was whether

24 or not he would be willing to give an interview.

25 Mr. Gschwendt and Mr. Abribat both were present and

Page 4063

1 discussed this. Mr. Gschwendt testified that Mr. Mucic

2 was in the cell, including for discussion, at various

3 times, that the Office of the Prosecutor did talk to

4 him, that Mr. Gschwendt monitored the conversation, that

5 he did not remember the words or the exact substance of

6 what was discussed, but he could say and he did say

7 explicitly that there was nothing improper or any kind

8 of oppression, and then that was his job, to make sure

9 that that did not occur, and he stated very clearly that

10 that did not occur. Mr. Abribat also explained it in

11 great detail in examination. Mr. Greaves points out

12 that Mr. Abribat said he met with him for a brief period

13 of time. Mr. Abribat never said that he read out every

14 single word, and it may be the case that Mr. Abribat

15 miscalculated by the couple of minutes how long the

16 interview took, but the Prosecution does not believe

17 there can be any argument that any sort of unfair

18 oppression or anything improper occurred. The two

19 witnesses with information about that have testified

20 clearly and convincingly exactly what happened.

21 Then we go to, in fact, what is the allegation of

22 oppression, which is this 20 minutes. The Prosecution

23 will point out that there is absolutely no evidence

24 whatsoever in support of this allegation. This

25 allegation, which was made over a year later by the

Page 4064

1 accused, which we do think is relevant, has been shown

2 to be totally and utterly groundless. In fact, what

3 has been testified to by both Mr. Abribat and Mr. d'Hooge

4 is that during this 20 minutes Mr. Mucic was taken away

5 by the guards for a rest, and that they set up the

6 equipment in another room in Mr. Mucic's absence and when

7 Mr. Mucic was back in, about 20 minutes later, he's asked

8 if he agrees that the interview be recorded. It's

9 agreed and then the interview starts. When I say the

10 interview starts, though, in fact, what happens is

11 Mr. Mucic is very carefully explained his rights.

12 There's no challenge to this. It's in the recording.

13 An accused is always going to be able to say: "Something

14 happened before" and unless you tape an accused 24 hours

15 a day from the moment he's arrested, there's no way to

16 establish that other than the testimony of the persons

17 who had contact with him, which we've done, but it's

18 very clear that Mr. Mucic was treated fairly and was

19 given his rights, because in the beginning of the

20 interview he explained every single right and asked does

21 he want to give an interview, does he wish to have an

22 attorney, and he indicates that he is willing to give an

23 interview without an attorney. The idea that somehow

24 on the basis of absolutely no evidence this court should

25 disregard the testimony of all the witnesses whom we

Page 4065

1 believe the court must find credible when you take into

2 account what they said, their demeanour, everything, is,

3 we think, just utterly lacking in possibility or

4 merit.

5 In fact, we will point out that during this

6 interview, which occurred over three days for a few

7 hours a day, large breaks in between, Mr. Mucic is read

8 his rights, I believe, at least six times. Every time

9 he indicates he wants to continue without an attorney he

10 is asked if he wants to continue the interview and told

11 he doesn't have to continue it if he doesn't want to.

12 He says: "Yes, I want to continue". If there's any

13 question about what happened or Mr. Mucic's demeanour --

14 your Honour, Mr. Mucic just made a kissing signal to me

15 which he's now confirming. I would ask that he be

16 directed not to make such --

17 JUDGE JAN: Mr. Greaves, this is not on.

18 MR. GREAVES: I quite agree, your Honours. I have

19 indicated my displeasure to Mr. Mucic.

20 JUDGE JAN: This is intimidating counsel and this is

21 contempt of court.

22 MR. GREAVES: He will not do it again.

23 JUDGE KARIBI WHYTE: I hope they should learn to leave

24 their indiscipline from outside and when they come in

25 here they should try to be disciplined. They might

Page 4066

1 have been so used to indiscipline elsewhere. It should

2 not be so here.

3 MS. McHENRY: Thank you, your Honours. If there's any

4 question --

5 JUDGE JAN: I have a few questions really.

6 JUDGE KARIBI WHYTE: The Trial Chamber will now break for

7 30 minutes and we will come back.

8 (11.30 am).

9 (Short break)

10 MR. GREAVES: Your Honours, before we resume hearing from my

11 learned friend Ms. McHenry could I just say this on

12 behalf of my client, he understands that he overstepped

13 the mark this morning. He did not mean any disrespect

14 to your Honours and apologises if any disrespect was

15 felt by your Honours. I am sure you will all

16 understand it is quite stressful to be sitting there for

17 hours on end and sometimes bad judgement is arrived at by

18 a defendant. He apologises to your Honours for it and

19 I hope your Honours accept the apology.

20 JUDGE JAN: The apology should be to Ms McHenry.

21 MR. GREAVES: He and I have had a conversation about it and

22 I am confident it will not happen again. I hope that

23 draws the matter to a close.

24 JUDGE KARIBI WHYTE: I will seize this opportunity to say a

25 few things. I haven't been watching the behaviour of

Page 4067

1 the accused persons, because I have never thought it was

2 necessary, and knowing the gravity for the offences for

3 which they are being tried here, I assumed everybody

4 would behave very soberly and seriously. This is not a

5 Circus. It is not a theatre. This is a place where

6 serious things are being discussed, the guilt or

7 innocence of persons. I do not think the general

8 behaviour of accused persons that I have been told of

9 very recently is very much to be desired, and I do not

10 think they appreciate that they can be removed if their

11 conduct interferes with the administration of justice

12 here, and I think they are all reasonable people and

13 they should understand that we give them the due respect

14 they deserve and in reciprocity they should also extend

15 that same respect to every person exercising any duty in

16 this place. Please I appeal to all of them from now to

17 behave very properly and not attract the Trial Chamber

18 to use the law against them. Thank you. Thank you

19 very much, Mr. Greaves.

20 MR. GREAVES: Your Honour, it's my pleasure, as always.

21 JUDGE JAN: Ms McHenry, no part of the interview was

22 recorded on 18th March.

23 MS. McHENRY: That is correct, your Honour. There was not

24 an interview on 18th March. All there was was a brief

25 introduction of the OTP investigator, Mr. Abribat, and

Page 4068

1 telling him that they wished to seek an interview with

2 him under the rules of the Tribunal.

3 JUDGE JAN: Is it possible to play that portion of the tape

4 from 19th March when the rights of the accused were

5 explained -- the rights of Mucic explained to him.

6 MS. McHENRY: Yes, your Honour.

7 JUDGE JAN: Only that portion I'm interested in.

8 MS. McHENRY: Your Honour, what I would suggest, if your

9 Honours would be willing, is that I finish my

10 argument. I just have a couple of minutes left. Part

11 of this suggests that if there's any question about

12 Mr. Mucic and his ability to understand as well as what

13 was told to him, we can play the tape in its entirety.

14 JUDGE JAN: I am only interested in that portion: it won't

15 be more than five minutes.

16 MS. McHENRY: It won't be more than five minutes. I will,

17 of course, point out to your Honours that he was advised

18 of his rights in addition to the first time, I think

19 five other occasions, all of which were also recorded.

20 JUDGE JAN: I'm only interested in 19th March, that

21 portion.

22 MS. McHENRY: Okay. On 19th, certainly, and I will ask the

23 assistance of the technical persons. I believe the

24 Registrar -- maybe the technical people can get a copy

25 of it from the registrar since it has been identified

Page 4069

1 and while I finish my argument, it can be set up to play

2 the first few minutes. Thank you.

3 JUDGE JAN: Another thing I was interested in was what is

4 really the position of the investigating judge in the

5 continental system or Austrian system? Is he a part of

6 the prosecution? I am not really clear about the

7 position of the investigating judge in the system.

8 MS. McHENRY: Your Honour, I will just very briefly respond

9 and then I believe my colleague Mr. Ostberg can either

10 supplement or correct me if I'm wrong. The

11 investigating judge is neither a member of the

12 Prosecution or the Defence. It is a neutral

13 investigator who can interview the accused as, in fact,

14 he did in this case, without the presence of the

15 Prosecutor and also talk to witnesses, and that it is a

16 person who is assigned to investigate an allegation and

17 then at the end of it if he decides that formal charges

18 should be brought, they are brought, and then the person

19 goes before a judicial person for the purposes of

20 determining the person's guilt or innocence rather than

21 the investigation.

22 MR. OSTBERG: To that I would just add that I think it's a

23 fair description to call an investigating judge a

24 judicial supervisor the investigation done by the

25 police.

Page 4070

1 MS. McHENRY: Your Honour, just to briefly conclude, in

2 addition to pointing out, as I just did, all the

3 different ways in which the Austrian and the Office of

4 the Prosecutor proceedings were kept separate and

5 explained to the accused separately, with respect to the

6 idea that there is confusion because of the different

7 background of the accused and the fact that he is

8 arrested in one country, I'll point out to your Honours

9 that Mr. Delalic -- the Defence of Mr. Delalic made those

10 exact same arguments in its initial motion to exclude

11 the statement of Mr. Delalic, which was taken in Germany,

12 and there was discussion about Yugoslav and German law,

13 and the Chamber, we believe quite correctly, found that

14 given that the Office of the Prosecutor's rules were

15 followed and that the rules of the Tribunal were very

16 clearly explained to him, the allegations about --

17 indeed, the fact that the accused may also have

18 different legal systems does not render the OTP

19 interview somehow unfair or improper.

20 In addition to playing the first five minutes of

21 this tape, we will again point out that on numerous

22 occasions the accused over a period of three days was

23 explained his rights. He had the opportunity to

24 clarify, if he was confused, to think about it, to

25 change his mind. He specifically was told he can change

Page 4071

1 his mind and does not need to continue. We believe

2 that the idea that he did not understand those rights

3 was frankly entirely baseless.

4 We will point out something that really has not

5 been made much of. The idea that the accused was

6 confused about his desire for an attorney and that he

7 really wanted one is clearly put to rest by the fact

8 that an attorney does appear and, in fact, talks

9 privately to Mr. Mucic, and then both the attorney and

10 Mr. Mucic state: "Mr. Mucic does not want an attorney here

11 as part of the Office of the Prosecutor interview". He

12 may well have wanted one and he did request and get one

13 for the purposes of the extradition proceedings, but he

14 did not want one for the Office of the Prosecutor

15 interviewer, as is made very clear by the fact that he

16 on six or more different occasions waived his right to

17 counsel, by the fact that even when the attorney shows

18 up he says he doesn't want the attorney there. We

19 believe that this answers any possible issue that there

20 might be --

21 MR. GREAVES: I stand to be corrected but, in fact, there is

22 no evidence before the court that such a conversation

23 took place. Having read it in the Prosecution's

24 response, I was waiting for such evidence to be given.

25 None was given of that conversation. It's, therefore,

Page 4072

1 not in evidence before your Honours.

2 MS. McHENRY: I do believe and we can check the transcript

3 afterwards, and if I'm incorrect, I will --

4 JUDGE KARIBI WHYTE: Actually who is Dr. Manfred?

5 MS. McHENRY: Yes, there was evidence that an attorney came

6 and that the attorney said he had been appointed to the

7 court for the extradition, that the attorney had --

8 JUDGE KARIBI WHYTE: That was Dr. Manfred.

9 MS. McHENRY: That the attorney had a chance to consult with

10 Mr. Mucic privately and the attorney then informed

11 Mr. d'Hooge that Mr. Mucic did not want him, and this was

12 reflected in the record when the interview continued,

13 that Mr. Mucic, in fact, did not wish the attorney

14 present.

15 MR. GREAVES: There was plainly evidence as to the arrival

16 of somebody called Dr. Manfred, but my recollection is,

17 and I stand to be corrected, that there was nothing of

18 the conversation that was held with that person was

19 given in evidence. I'm perfectly prepared to be

20 corrected.

21 JUDGE KARIBI WHYTE: What I do remember is that Dr. Manfred

22 appeared.

23 MR. GREAVES: That is plainly right.

24 JUDGE KARIBI WHYTE: And finally told them he was leaving

25 because Mr. Mucic did not want him. He didn't need

Page 4073

1 him. That was what I heard.

2 MS. McHENRY: Apparently if my prior argument I was

3 incorrect when I stated that Mr. Gschwendt had testified

4 that Mr. Mucic was both in the room and the arrest

5 cell. That was Mr. Moerbauer who said that. I just

6 wanted to correct that.

7 So, your Honour, we believe that the record is

8 very clear that Mr. Mucic did not want an attorney,

9 despite being not only told he could have one but by

10 having one appear. As was his right to do, he chose

11 not to have one. The Office of the Prosecutor behaved

12 reasonably, appropriately and in every case in

13 accordance with the rules of this Tribunal, as well as

14 any fundamental notions of fairness. It would be, we

15 believe, entirely unjust to allow unsupported

16 allegations of oppression or anything else to result in

17 this statement not being admitted into evidence. Under

18 Rule 42, under Rule 89, which provides that this court

19 shall admit relevant evidence unless it is substantially

20 outweighed by the need to have a fair trial, and under

21 Rule 95 we believe it is very clear that this Office of

22 the Prosecutor interview must be admitted into

23 evidence.

24 At this time I would just ask the technical people

25 to play the beginning portion of the first few minutes

Page 4074

1 of Mr. Mucic's interview on March 19th, which has been

2 identified.

3 MR. GREAVES: Before we do that and before my learned friend

4 sits down, could I ask her to deal with this, so that

5 your Honours can hear her response to it? Given the

6 evidence of Mr. Abribat about this:

7 "Question: Did you ask him the question: "Do you

8 want a lawyer?"

9 Answer: No, I did not put that question to him",

10 when does she say -- and the evidence discloses

11 the conversation which is adverted to at the beginning

12 of his evidence, when does she say that conversation

13 took place according to the evidence?

14 MS. McHENRY: Your Honour, the Prosecution believes that the

15 evidence suggests that after having been advised of his

16 rights Mr. Mucic is asked if he is willing to give an

17 interview under the conditions explained to him and he

18 says "yes". I believe when you read Mr. Abribat's

19 testimony as a whole, he doesn't say that he went

20 through one by one and asked with respect to each

21 question: "Do you understand this? Do you agree to

22 this?" Because all that was to be done the next day on

23 the record. This was just a brief introduction to

24 determine whether or not the efforts to ensure that the

25 Austrian authorities agreed to this, that Mr. Mucic

Page 4075

1 agreed, and that the equipment could be set up, that

2 that is what the conversation alluded to and I believe

3 Mr. Abribat stated that explicitly in his testimony.

4 Thank you. Then I would just ask for the first few

5 minutes of the tape recording to be admitted -- to be

6 shown.

7 (Videotape played).

8 JUDGE JAN: Excuse me. Can we have the English translation

9 while we watch?

10 MS. McHENRY: Your Honour, I would ask that it be stopped.

11 Yes, your Honour. I don't think the interpretation

12 section was prepared for this. So if your Honours

13 want, maybe -- I believe your Honours have copies of the

14 transcript, but we can also, if we have a couple of

15 minutes, give a copy to the interpretation section and

16 then they can read it. I would just also enquire

17 whether or not your Honours want the translation to be

18 from the French to English or the Serbo-Croatian to

19 English. I would suggest the Serbo-Croatian since what

20 is said to the accused is the most relevant.

21 JUDGE JAN: Yes.

22 MS. McHENRY: In that case we can either take just a couple

23 of minutes while we give copies of this to the booth or,

24 Mr. Greaves -- I do not know if your Honours want to wait

25 until the end of any suggestion. Otherwise maybe the

Page 4076

1 Registrar can help with providing copies to the

2 interpretation booth.

3 JUDGE JAN: My difficulty is I don't understand French.

4 JUDGE KARIBI WHYTE: We can continue while that arrangement

5 is being made.

6 MS. McHENRY: Okay.

7 JUDGE KARIBI WHYTE: Mr. Greaves, you can carry on while the

8 arrangement is being made. When it is concluded we can

9 then switch the video on.

10 MR. GREAVES: Thank you very much. There are just a number

11 of matters I want to raise very shortly. I don't

12 accept the proposition that is laid before you

13 concerning the burden of proof in that case. We submit

14 the burden of proof lies on the Prosecution throughout

15 and the standard of proof in this Tribunal is beyond

16 reasonable doubt.

17 The second matter is this: the nature of the

18 attack on Austrian law really derives from the position

19 that Rule 95 throws up, which is to invite the court to

20 look at reliability. That's the test in essence from

21 the Rule, and indeed we would respectfully submit from

22 the decision in Tadic, which we have referred to many

23 times before, which sets out, as it were, the foundation

24 of all evidence has to be reliability. That's the

25 subject that your Honours have in our respectful

Page 4077

1 submission to focus upon in determining the

2 admissibility of these statements: has the Prosecution

3 laid proper ground for reliability and are there

4 features of what happens and the nature of the warnings

5 that are given -- sorry -- the information that's given

6 to suspects that underline the issue of reliability as

7 far as that evidence it concerned?

8 Can I now turn to the case of Murray v United

9 Kingdom? I would be anxious that your Honours have a

10 copy of the actual decision before you rely on it,

11 because the bible that counsel in England all use,

12 Archbold, has a short section on Murray v United

13 Kingdom. It has a slightly different cast upon it and

14 so without seeing the decision, in itself it might be

15 dangerous to rely on, with great respect to my learned

16 friend. What it says here at paragraph 15-225a of the

17 1997 edition is:

18 "In the context of legislation which permits

19 adverse inferences to be drawn from silence, the right

20 to consult a solicitor is of paramount importance".

21 It then cites Murray v United Kingdom, the 1996

22 case. Then it says:

23 "Delaying access to legal advice, whatever the

24 justification, is incompatible with the right to a fair

25 trial guaranteed by Article 6 of the European Convention

Page 4078

1 on Human Rights".

2 So there may be some dispute as to what the

3 precise meaning of Murray is. Having read one or two

4 of the European Court's decisions on various aspects,

5 they can sometimes be slightly elliptical. I notice my

6 learned friend smiles. I think she may have had

7 occasionally the same difficulty that I have had.

8 The next point is this. There is an interesting

9 phrase which is used by the defendant during the course

10 of what he says that he's prepared to do. Can I refer

11 your Honours to it? At page 5 of the Prosecution

12 response they set out the words that are recorded as

13 having been said by the defendant before Judge Seda.

14 At paragraph 12, which ends on page 5, he says this:

15 "I am prepared to meet with investigators of the

16 ICTY and provide them with information".

17 Can I remind your Honours what he did in August of

18 last year, which was to go and provide them with

19 information. That was the interview that was thrown up

20 by my learned friend, my leading counsel. That's what

21 he was trying to do in that interview. Does that

22 indicate, your Honours, how he perceived what the

23 process was that he was about to go through? He thought

24 he was going to give them information. He was under an

25 illusion about that, because what the office of the

Page 4079

1 Prosecution were going to do was to interview him with a

2 view, no doubt, to getting evidence that they could use

3 against him. So is that an indication of someone who

4 has not actually understood what is going to happen to

5 him?

6 Finally this. Again reading that very same

7 paragraph, paragraph 12 of the Prosecution's response,

8 which sets out what happens before Judge Seda, your

9 Honours will see that throughout that there are

10 references to the ICTY. I say that because that

11 indicates the continuous nature of this process, how the

12 Austrian procedure and the ICTY procedure are, in fact,

13 bound up together. So, as I said at the outset of my

14 submissions, you cannot put the OTP interviews in a

15 little compartment and look at them in isolation. In

16 our respectful submission you have to look at all that

17 happened between 18th and 21st March, and using that

18 evidence to decide has the thing gone wrong? Has this

19 man had his rights breached? Was he misled? Did he get

20 a fair explanation of what his rights were? Did he

21 understand them? If he didn't, what we say is this:

22 there has been a failure and the failure is such that

23 under Rule 95 it undermines reliability, and in the

24 second part of Rule 95 which deals with the admission

25 being antithetical to and would seriously damage the

Page 4080

1 integrity of the proceedings, the point is this: the

2 standard that this Tribunal has set is set out in Rules

3 42 and 43, which relate to the questioning of suspects,

4 and that is a standard -- if we fall below that, then

5 that is one of the things which will affect the fairness

6 of these proceedings. The whole purpose of those rules

7 is to set a standard, and if some piece of evidence

8 falls below that standard, which was a standard set

9 with, no doubt, very careful thought by your Honours

10 when coming to the conclusions as to what rules should

11 be prevalent in this court, if it falls below that, then

12 that's the test. It undercuts its reliability and it

13 makes it antithetical to and would seriously damage, in

14 our submission, the proceedings that you are holding.

15 I think that's all I wish to say in reply to my

16 learned friend. I am trying to be as brief as

17 possible, but if there is any other matter I can assist

18 your Honours on arising out of that, I shall be happy to

19 do so.

20 JUDGE JAN: That's the reason I want that portion to be

21 played.

22 MR. GREAVES: Yes.

23 JUDGE JAN: In what details was his rights explained to

24 him.

25 MR. GREAVES: I do not dissent from the proposition that you

Page 4081

1 should see it.

2 MR. OLUJIC (in interpretation): With your permission, your

3 Honours, before we view the videotape, I would only like

4 to add something in support of what my colleague has

5 explained in great detail, the symbiotic relationship of

6 the police, on the one hand, and the investigators who

7 arrived in Vienna on the other side. I would like to

8 add on the basis of the transcript and the videotape it

9 is clear that neither Mr. Abribat, the investigator of

10 the Tribunal, or Mr. d'Hooge did not act in accordance

11 with Rule 42 of the Rules of Procedure and Evidence,

12 because they told my client that if he did not choose a

13 lawyer that he would be assigned one by them, and they

14 did not warn him that should he not select a lawyer,

15 they -- they did not tell him that he did not have a

16 right to defence, because that was his basic right,

17 which comes out of the system, and this defence is a

18 pre-condition that is absolutely based in the system.

19 I would not like to repeat what my colleague has already

20 said, but please, I plead that we watch very carefully

21 when these two gentlemen are asking him this question.

22 Thank you.

23 JUDGE JAN: That's precisely the reason I want to see the

24 tape, what was explained to him at the time he was being

25 interviewed.

Page 4082

1 JUDGE KARIBI WHYTE: Can we now have the taped?

2 (Videotape played).

3 THE INTERPRETER: Today, 19th March 1996, at 3.30 in the

4 afternoon we are in the premises of the Austrian

5 Ministry of Justice in Vienna and are beginning the

6 first interview of Mr. Zdravko Mucic, alias Pavo, who was

7 arrested in front of his apartment on 18th March 1996 by

8 the Austrian authorities. During the interview the

9 following persons are present: Mr. Mucic in person, Ms

10 Alexander Pal, the interpreter for the International

11 Tribunal for the former Yugoslavia, Mr. Bart d'Hooge,

12 Peter Nicholson, and I myself, Regis Abribat. The

13 three of us are members of the Prosecutor's Office of

14 the International Tribunal in The Hague. Pursuant to

15 the Statute of the Tribunal and the Rules of Procedure

16 and Evidence I shall read Mr. Mucic his rights.

17 He has the right to an attorney of his own choice,

18 and if he cannot find one, an attorney will be assigned

19 to him.

20 He is entitled to interpreter's services free of

21 charge.

22 He has the right to remain silent and he is

23 advised that everything he says will be recorded and can

24 be used as evidence against him.

25 I would also like to inform Mr. Mucic that this

Page 4083

1 interview will be recorded on video and audio tapes and

2 there will be a recording made of it and a copy of it

3 will be given to him as soon as it is possible.

4 Mr. Mucic, the first question is: do you agree to

5 answer our questions without the presence of an

6 attorney, as we have already discussed?

7 Answer: Yes.

8 Question: So, Mr. Mucic, I would like you to give

9 us your personal data, your name, your last name, and

10 the place and date of birth?

11 Answer: My name is Zdravko Mucic".

12 MS. McHENRY: I think we can ask for it to be stopped now.

13 Your Honours, I will point out that in addition to that

14 on page 14 and, if your Honours want, we can have the --

15 during the lunch break we can find and queue up the

16 portions, but it's reflected on page 14 of the English

17 transcript. On March 20th at 9.30 hours Mr. Mucic was

18 advised of his rights again and I can quote that.

19 JUDGE KARIBI WHYTE: I noticed one thing. I don't know

20 whether any other person did. In the reading of his

21 rights they still talked about "do you need a lawyer as

22 we have discussed".

23 MS. McHENRY: . That question was specifically asked to

24 Mr. Abribat what that was in reference to. Mr. Abribat

25 stated and the evidence supports that that was in

Page 4084

1 reference to the brief conversation that they had had on

2 the 18th. I will also point out, your Honour --

3 JUDGE KARIBI WHYTE: Because he has just read his rights to

4 him.

5 MS. McHENRY: That is correct.

6 JUDGE KARIBI WHYTE: Why did he have to refer to a

7 discussion?

8 MS. McHENRY: I believe Mr. Abribat indicated that he wanted

9 to be very clear that there had been previous

10 conversations, because there had been this very brief

11 conversation on 18th, and Mr. Abribat wanted to ensure

12 that this was made as of the record. Similarly later

13 when during the break the attorney appointed to Mr. Mucic

14 for extradition appeared when that came up later on,

15 when the interview reviewed, another OTP investigator,

16 this time Mr. d'Hooge, specifically made that part of the

17 record. So I believe it was and I believe the

18 testimony, the evidence is that it was an attempt to

19 make sure that the record fairly and accurately

20 reflected everything that had occurred, and because

21 there had been this very brief conversation of the 18th,

22 that that fact should be noted, that this was not the

23 very first time that they had met each other.

24 JUDGE KARIBI WHYTE: That other discussion is not on

25 record.

Page 4085

1 MS. McHENRY: Your Honour, the other discussion, which was

2 not on interview, was not recorded. That is correct.

3 It happened on the 18th. It lasted a few minutes.

4 Mr. Regis Abribat and Mr. Gschwendt were present and

5 testified about it. It was in order that they could

6 introduce themselves to Mr. Mucic, so he knew who they

7 were, and they explained that they, in fact, would like

8 to interview him, and it would have to be in accordance

9 with the Tribunal's rules of procedures.

10 JUDGE KARIBI WHYTE: Thank you very much. I'm not

11 expecting you to give any evidence at all. This is

12 what somebody else should have told us.

13 MS. McHENRY: Your Honour, I can find the portions of

14 Mr. Regis Abribat's testimony, because he was

15 specifically asked exactly about those words, and he

16 gave his evidence about it, because I certainly agree I

17 do not want to give any evidence. I will also note

18 that on page 14 of the English transcript when the

19 interview began on March 20th the same thing happens in

20 that all the people are introduced, it's explained who

21 they are, and Mr. Mucic is again advised of his rights.

22 I can read that in its entirety, if it would assist the

23 court. In particular after everyone is introduced

24 Mr. Mucic is told:

25 "He's entitled to have an attorney of his choice,

Page 4086

1 and if he cannot afford one an attorney will be assigned

2 to him. He's entitled to the services of an interpreter

3 free of charge. In this case this is Ms. Pal, who is

4 a certified interpreter at the International Tribunal.

5 He has the right to remain silent and he's advised that

6 a statement will be recorded and it will be used as

7 evidence. We advise Mr. Mucic that this interview will

8 be recorded and video and audio taped, that the

9 recording will be transcribed and that Mr. Mucic will

10 receive a copy of the transcript as soon as possible.

11 Mr. Mucic, do you agree to answer our questions

12 without the presence of an attorney?

13 Answer: Yes."

14 Then again on page 33 --

15 JUDGE JAN: Just on the very first page, the portion which

16 I witnessed, he was told that an attorney will be

17 assigned to him, but he wasn't told it would be free of

18 costs.

19 MS. McHENRY: Your Honour, he was told if he didn't have the

20 possibility to get one himself, which I believe is

21 another --

22 JUDGE JAN: We can find it on the tape. One can be

23 assigned to him, but not without any charge to him.

24 MS. McHENRY: It doesn't specifically use the words "free of

25 charge" although that is used on March 20th, but, your

Page 4087

1 Honour, we believe that the words "if he cannot get an

2 attorney himself" encompasses both that he can't afford

3 one and indeed if he doesn't know one. Your Honour, I

4 believe, if anything, the slight difference of wording

5 gives Mr. Mucic more rights rather than less.

6 JUDGE JAN: Not more rights, but he has a right to be told

7 that no financial liability will fall on him if one is

8 assigned to him?

9 MS. McHENRY: I do understand that, your Honour. It is our

10 submission when he is told if he doesn't have the

11 possibility to get one himself, that encompasses that

12 one will be assigned to him free of charge. To the

13 extent there was any ambiguity about that whatsoever,

14 and we don't believe there is, on 20th the words "free

15 of charge" were specifically set out. So I would also

16 point out that again after the lunch break on 20th on

17 page 33 of the transcript Mr. Mucic is again informed of

18 his rights, including his right to defence counsel of

19 his choosing, and told if he does not have sufficient

20 means to pay for defence counsel of his choosing, he has

21 the right of defence counsel assigned to him and the

22 rights are --

23 JUDGE JAN: Just a minute. Here in the script of 19th

24 March you use the words "free of charge" but I don't

25 find it in the interview. Even in the portion which we

Page 4088

1 have just read and which we have been shown.

2 MS. McHENRY: Your Honour, I'm sorry. I am apparently not

3 being clear. I'm agreeing on the 19th what was told to

4 him was the words "free of charge".

5 JUDGE JAN: But on your script you have provided to us this

6 sentence occurs, that he is entitled to an interpreter's

7 services free of charge.

8 MS. McHENRY: I am sorry. The term "free of charge" is not

9 used.

10 JUDGE JAN: But it is in the script.

11 MS. McHENRY: For the interpreter. For the attorney it

12 says: "If you do not" -- this is a translation but I

13 believe it is in the effect of: "If you can't get one

14 yourself". With respect to the attorney the words "free

15 of charge" are not explicitly used. We believe that

16 that is fairly encompassed and would have been

17 understood to have been fairly encompassed within the

18 motion that: "If you cannot get one yourself" which

19 would include "if you cannot afford one". What I say is

20 to the extent anyone would make an argument, which no

21 one has, that the issue was one of money, we would point

22 out that on subsequent occasions, for instance twice on

23 March 20th, and I refer to page 14 of the transcript and

24 page 33, the words -- he is specifically told that he

25 can have an attorney "free of charge" and on page 33:

Page 4089

1 "If he does not have sufficient means to pay for

2 defence counsel of his own choosing".

3 So to the extent that anyone might want to argue

4 that there was any ambiguity, which we do not believe

5 there was, we believe that certainly would have

6 clarified it.

7 We would also point out that on page 51 of the

8 English transcript, when the interview of the 20th is

9 concluded, Mr. Mucic is asked:

10 "Do you agree to continue the interview tomorrow?

11 Answer: By all means.

12 Question: You have a choice?

13 Answer: I want to continue it".

14 Then on page 52 when the interview begins the next

15 morning Mr. Mucic again is advised of his rights in full,

16 and he again chooses to waive them. We will also point

17 out that on the 20th, as is in evidence, an attorney who

18 had been appointed by the court to him free of charge

19 appeared, and Mr. Mucic sent him away because he did not

20 want him for the OTP interview. So that would be our

21 submission. Thank you, your Honours.

22 MR. GREAVES: Could I just return very briefly to the piece

23 of evidence concerning what Mr. Abribat said, I think, in

24 examination-in-chief about the discussion he had on

25 18th? The evidence is:

Page 4090

1 "There was no real discussion, because I simply

2 came in to see Mr. Mucic and to explain who I was, that

3 is to introduce myself, to explain the rules and I

4 simply wanted to know whether he agreed or not to be

5 interviewed. He answered, he nodded, which actually

6 meant "yes"".

7 He specifically in further evidence denied ever

8 having asked the question whether Mr. Mucic wanted a

9 lawyer. I pose again the question: As Mr. Abribat says

10 he has had this other conversation, as we have already

11 discussed, that refers to Mr. Mucic not having a lawyer,

12 when did that conversation take place? That's the issue

13 for your Honours, if I may say so. Your Honour Judge

14 Karibi Whyte has identified that.

15 Could I also add that if it's of any instruction

16 to you, you are very welcome to borrow the passage that

17 I've marked which deals with the English law on the

18 rights to solicitors, so you can see how we do it

19 there. It's entirely a matter for your Honours, but

20 you may find it informative, if nothing else.

21 JUDGE KARIBI WHYTE: I think we can adjourn for lunch

22 now. It's almost 1 o'clock. We will resume at

23 2.30.

24 (12.45 pm)

25 (Luncheon adjournment)

Page 4091

1 (2.30pm)

2 MR. ACKERMAN: Your Honours will recall that we had a recent

3 status conference, where we discussed scheduling in this

4 case, and the thing that I think was universally agreed

5 to by all of us was that the important scheduling that

6 we needed to have were the days that we would not be

7 sitting, and that those should be pretty much set in

8 concrete, because that was how we could make plans for

9 travel and various things.

10 We were given a schedule at that time, and it has

11 been changed very little to one that was given to us

12 yesterday. We had all understood that we would be

13 sitting on Monday of next week and the rest of that week

14 would be taken up by matters in the Tadic case. We

15 were informed over the lunch hour that that was no

16 longer true and that we were going to be sitting the

17 entire week next week, because Tadic would not be

18 needing the Chamber. I don't know if the court even

19 knows about that yet, but it has thrown some loops in

20 some travel plans that many of us have made. You know,

21 the court may sit if it wants to, and we will, of

22 course, be here, but it kind of goes against what we had

23 -- I thought we'd kind of agreed at the status

24 conference that at least we could rely on the days the

25 schedule said we were going to be not in sitting.

Page 4092

1 JUDGE KARIBI WHYTE: You are not alone in consternation.

2 We are in the same position. It is only when we rose

3 and when I went to my chambers I saw that Tadic for

4 certain problems may not be able to sit. So it made

5 our position available, which means the Trial Chamber

6 will be free. So the inference is that if the Trial

7 Chamber is free, then we could continue, but we have not

8 met to decide. That is the position, not that it was

9 pre-arranged. We still have our own schedule. We

10 shaded the whole month to indicate the days we would sit

11 and the days we would not but this is just what came to

12 our attention. I am sure the prosecution were not

13 aware of it.

14 MR. OSTBERG: We are not aware of any change so far.

15 I have heard some rumours, but this is the first time

16 I was informed about this.

17 JUDGE ODIO BENITO: Me too. Me, too, let me tell you.

18 MR. GREAVES: I think the Prosecution may have thought we

19 were joking.

20 MR. OSTBERG: No, I took it seriously really.

21 MR. GREAVES: I am very glad about that.

22 JUDGE KARIBI WHYTE: I think that's the position so far.

23 MR. OSTBERG: This, of course, causes us some problems. We

24 have witnesses. Are we going to call them or let them

25 go home? What are we doing? We would be very, very

Page 4093

1 happy to have a ruling as soon as it's practically

2 possible.

3 JUDGE KARIBI WHYTE: I don't know what ruling you can have.

4 MR. OSTBERG: I don't know either.

5 MR. GREAVES: I think my learned friend is inviting your

6 Honour to be master of your own house and mistress of

7 your own house, Madam.

8 JUDGE KARIBI WHYTE: We indicated what it is. As I said,

9 it was even an informal information to me, just to say

10 that the Trial Chamber is free for the rest of the week

11 and they couldn't go from Tuesday as they earlier

12 planned. That is all. We will carry on with our

13 schedule as it is.

14 I think we have a short ruling to make on the

15 submissions.


17 The Prosecution seeks to tender in evidence the

18 interviews of Mucic with the Austrian police and also

19 with the investigators of the Office of the Prosecution

20 into these proceedings. Mr. Greaves for Mucic objects

21 and calls for the exclusion of both interviews. In his

22 submission before the Trial Chamber Mr. Greaves pointed

23 out that the rights of a suspect under Austrian law are

24 an offence against provisions of Rules 42 of Rules of

25 Procedure and Evidence. He went on to point out that

Page 4094

1 there was no unfettered right to counsel and the right

2 of silence is qualified. The provision encouraging the

3 suspect to confess is very similar to an inducement to

4 do so to secure mitigation of punishment.

5 Learned counsel referred to the Police and

6 Criminal Evidence Act 1984, Section 76, which governs

7 cases of confession in England. It was argued, in fact,

8 that the interviewee admitted being tired and the

9 interview of the investigators of the Office of the

10 Prosecutor with Mucic continued for more than five and a

11 half hours with interviews alternating, as there was

12 among two or three interviews indicated that Mucic

13 himself must have been tired in the process and the

14 statements made thereby inadmissible.

15 The cross-culture involved in the exercise might

16 have introduced confusion in the mind of Mucic. The

17 interviews involved too distant and somewhat

18 contradictory rights in the legal systems. Mr. Abribat

19 admitted to have explained the suspect's rights in a few

20 minutes. It was unnecessary to have conducted the

21 interview in Austria at the time when extradition

22 proceedings had already begun. It was therefore more

23 convenient to have done so at the Hague, to where in any

24 event Mucic was being extradited.

25 The Prosecution have not proved the waiver.

Page 4095

1 There is the outstanding question of what was discussed

2 with Mr. Abribat. The burden of proof rests on the

3 Prosecution. It is beyond reasonable doubt. The sum

4 total is that the statements sought to be tendered must

5 be reliable, which are the principles of the Tadic

6 Decision and our rules on reliability. The three

7 interviews should be considered together for the

8 purposes of reliability and admissibility.

9 Ms McHenry for the Prosecution submits that the

10 burden of proof of voluntariness is not in our rules

11 proved beyond reasonable doubt. The standard of proof

12 differs from country to country. Counsel does not

13 think that rules of Austrian police relating to warning

14 of suspects is either improper or in violation of

15 recognised human rights provisions. It was argued that

16 the tiredness of the suspect was not a factor throughout

17 the interview, and indeed Mucic never indicated he was

18 tired or exhausted. He was throughout the interview in

19 control of himself and answers to questions. Learned

20 counsel submitted that the two interviews were separate

21 and conducted by different persons for different

22 purposes and at different times. They should be

23 separate for the purpose of determining the

24 admissibility of the statements resulting from the

25 interviews.

Page 4096

1 Counsel referred to the evidence of Mr. Gschwendt

2 and Abribat who, it was argued, have cleared the doubts

3 about the question of a previous conversation between

4 Mucic and Abribat. There is not evidence of the 20

5 minutes gap after the investigating judge had concluded

6 than is on the record. There is no interview.

7 Abribat merely introduced the investigating team. In

8 all the circumstances the Office of the Prosecution has

9 behaved properly and in conformity with the law.

10 After considering all the arguments, the Trial

11 Chamber states as follows. The Trial Chamber is

12 governed by its Rules of Procedure and Evidence.

13 Accordingly any evidence to be admissible in proceedings

14 before it must satisfy the law as provided in the Rules

15 of Procedure and Evidence. The Tribunal is established

16 for the trial of criminal offences of the most serious

17 kind. Nothing less than most exacting standard of

18 proof is required. It is universally accepted that the

19 burden of proof rests entirely on the Prosecution and

20 this it must establish beyond reasonable doubt. This

21 is the standard of proof required in this Trial

22 Chamber. The issue before the Trial Chamber is the

23 admissibility of the statements made by the accused as

24 suspects before the Austrian police and before the

25 Office of the Prosecution. Learned counsel has

Page 4097

1 described them as a single exercise and to be rejected

2 because of the violations of the rules of the Tribunal

3 governing interrogation of suspects. The Prosecutor

4 submits the two interviews are separable and could be

5 separated for the purposes of considering the

6 reliability and admissibility of the statements. It is

7 not disputable that the two interviews are separate both

8 in fact and in law.

9 The Austrian interview is governed by Austrian

10 law, whereas the interview by the Office of the

11 Prosecutor is governed by our Rules. There is no doubt

12 the Austrian rules governing is clearly different and

13 contradictory to our own Rules. The test of having

14 counsel at interview, right to silence, essentially Rule

15 42, are not essential in the Austrian provisions. The

16 suggestion of a suspect confessing is absent in our Rule

17 42. Accordingly that Austrian law is subject to the

18 test of Rule 42 is likely to fail.

19 On the other hand, there is very little other than

20 the consideration of the two interviews because of the

21 continuous existence that will affect the OTP

22 interview. Considering them together, the witness

23 would have been exposed to an inordinate length of

24 examination which is likely to affect his concentration

25 and ability to react to questioning. This is, however,

Page 4098

1 a question of fact, but the Trial Chamber considers his

2 fitness, his experience and surrounding circumstances

3 that he was not affected by the length of interview.

4 There is nothing to show that he was affected even by

5 the cross-culture. The series of new warnings as to

6 his rights by the OTP investigators were sufficient to

7 erase any impressions from any inducement to confess

8 held out him by the Austrian police investigators.

9 There is sufficient evidence that the suspect

10 waived his right to counsel. The Trial Chamber is

11 satisfied that the interview of the Austrian police does

12 not satisfy Rule 42. It is, therefore, not reliable

13 and cannot be admitted into evidence. The interview

14 conducted by the investigators of the Office of the

15 Prosecutor comply with the provisions of Rule 42. It

16 is reliable and admissible. The interview is

17 admissible. The weight to be attached and the

18 probative value will be determined by considering all

19 the other circumstances in these proceedings. This is

20 our Ruling.

21 Ms. McHenry, do you have any other thing to say,

22 because we have a joint application here?

23 MS. McHENRY: Yes, your Honour. There are, I believe, two

24 joint applications for the two upcoming witnesses and I

25 understand that even an oral -- I'm sorry -- an oral

Page 4099

1 decision would be acceptable. They are joint motions

2 signed by all defence and by the Prosecution just

3 seeking that the Chamber asks the Registrar to appoint

4 an impartial medical expert for both witnesses.

5 JUDGE KARIBI WHYTE: What we have here --

6 MS. McHENRY: I'm sorry. I'm being informed that your

7 Honours have not been given a copy of the one that was

8 recently filed for witness C, who I believe will be

9 giving up his protection, but has not done that. So

10 it's a pretty much identical motion. We have a copy

11 here for the Chamber if you want.

12 JUDGE KARIBI WHYTE: You should take it as granted. Since

13 it is a joint application, no one is opposed, you should

14 take them as granted.

15 MS. McHENRY: Thank you, your Honour. The only other thing

16 that I would then bring up, your Honours, is that we had

17 also tendered the interviews of Mr. Landzo and Delic,

18 which were both done with counsel after they were in The

19 Hague. It's a little unclear to me whether or not

20 they've already been admitted or not, but to the extent

21 that the record is not clear that they have been

22 admitted, I would just ask that the record be clarified.

23 JUDGE KARIBI WHYTE: But it's not part of the argument

24 today and I'm not sure it has been admitted as such,

25 because they are all governed by the same rules. If

Page 4100

1 they were merely -- I'm not sure they were admitted into

2 evidence. I'm not sure. I am not too sure about

3 that.

4 MS. McHENRY: If not then, your Honour, we had tendered them

5 for admission, because Mr. d'Hooge, who conducted the

6 interview, identified them and submitted the transcripts

7 and the statements, and they were done after the accused

8 were brought to The Hague.

9 JUDGE KARIBI WHYTE: If I remember the history of their own

10 application, they came by way of Rule 73 for a waiver of

11 the application -- of the grounds for bringing an

12 application. They lost that, but that doesn't mean

13 that they could not even still have challenged the

14 admissibility of those documents. They could still

15 have.

16 MS. McHENRY: I do understand that, your Honour. So what

17 I'm just trying to suggest is that I believe all the

18 evidence concerning the circumstances of the statements

19 as well as the statements themselves are before your

20 Honours. So the Prosecution is not planning on calling

21 any additional evidence, since Mr. d'Hooge testified

22 about the circumstances, which included that counsel was

23 present, the rules of the Tribunal were complied with in

24 every respect and --

25 JUDGE KARIBI WHYTE: I did not understand him to have been

Page 4101

1 testifying about other accused persons. Generally he

2 was testifying about every other accused person?

3 MS. McHENRY: Yes. It was last week. I believe other

4 defence counsel are agreeing with this, because counsel

5 were present and it was recorded. There was not a lot

6 of testimony about it, because I do not believe there is

7 any controversy whatever about what happened, but the

8 witness did testify we believe in full about all the

9 relevant circumstances surrounding the interview of

10 Mr. Landzo and Mr. Delic, and the defence counsel

11 cross-examined him about those circumstances and about

12 their clients' interviews. Defence counsel is again

13 agreeing so I believe the issue is ripe for your

14 Honours' decision.

15 MR. MORAN: If we can be of some help, I agree with

16 Ms McHenry's factual rendition, and I think that both

17 counsel for Delic and counsel for Landzo are going to

18 have to just make sure the record is complete and make

19 some objections under -- to make sure we comply with

20 Rule 5, the contemporaneous objection Rule, and I want

21 to talk for two or three or maybe four minutes about

22 what I have and I don't know whether Mr. Ackerman has

23 anything more or less than that. We just want to lodge

24 some objections to make sure they're in the record.

25 MR. ACKERMAN: Your Honours will probably recall that at the

Page 4102

1 end of the testimony of Mr. d'Hooge the Prosecution

2 offered the statement of Mr. Landzo. At that point I

3 rose and asked that it be deferred until I'd had an

4 opportunity to develop an objection by way of a

5 cross-examination that I intended to conduct. I then

6 conducted that cross-examination. I believe I've

7 developed evidence upon which an objection can be based,

8 and a legitimate one, and I would like to argue that

9 very briefly, with your Honours' indulgence right now

10 and I'm prepared to do that.

11 JUDGE KARIBI WHYTE: I think you can, because I was

12 expecting it.

13 MR. ACKERMAN: Thank you. I do want to reiterate the

14 argument that I made to your Honours in connection with

15 a motion I filed earlier in this case for leave to file

16 a motion, and at that point you'll recall that I argued

17 about the cultural and legal differences between the

18 lawyer that was representing Mr. Landzo at the time the

19 statement was made and his lack of understanding of the

20 common law rules that were being applied to that.

21 Although I haven't got an order from the court on

22 that issue yet, it was pretty clear from the bench what

23 your attitude was about that argument, but I do want to

24 just by reference include that as part of my argument

25 today.

Page 4103

1 The second part, on page 3 of the English version

2 of the Landzo interview Mr. d'Hooge, and that is right at

3 the very beginning, makes the following statement:

4 "I have asked the interpreter not to interpret

5 every single word, essentially when we are speaking

6 about background matters".

7 You will also recall that I cross-examined him

8 about that. Now I learned, having come late into this

9 case, and I was making an argument recently, and I

10 learned it is this Chamber's position that the rules are

11 applied rather strictly -- the rules of this Chamber are

12 applied rather strictly and I was, therefore, not

13 permitted to file a motion to raise further objections

14 to this statement, and I think that the rules probably

15 should be applied rather strictly, and if they are

16 applied rather strictly: "I have asked the interpreter

17 not to interpret every single word, especially when we

18 are speaking about background matters" seems to me to be

19 in complete and total violation of a combination of

20 Rules 42 and 43.

21 Now, this is capable, I believe, of being solved,

22 but it hasn't been solved at this point. It may be

23 that the Prosecution has not called all the witnesses

24 necessary to lay the foundation, and let me see if I can

25 explain this. It's a little bit difficult. If the

Page 4104

1 interpreter, and I am anticipating Ms McHenry's argument

2 to some extent, is told not to interpret every single

3 word, the mere existence of a contemporaneous

4 Serbo-Croatian transcript does not solve the problem,

5 because the question is not whether there was a

6 contemporaneous Serbo-Croatian transcript, but whether

7 the question asked by Mr. d'Hooge in English was

8 translated into Serbo-Croatian in the same terms so that

9 the question that Mr. d'Hooge was asking in English was

10 understood by Mr. Landzo the way it was interpreted in

11 Serbo-Croatian, so that the answer that he gave when it

12 was interpreted back into English was related to the

13 question that was originally asked in English. That's

14 where I think the deficiency is. There's no way --

15 Mr. d'Hooge admitted on cross-examination that he does

16 not understand Serbo-Croatian so he has no ability to

17 tell us and had no ability to tell us what it was that

18 the interpreter may have left out of the translations at

19 his direction to not interpret every single word,

20 especially background matters. That is such an

21 imprecise instruction. The "don't interpret every

22 single word, especially when we're speaking about

23 background matters", that there's no way to know how the

24 interpreter may have interpreted what he told the

25 interpreter to do. It may have been taken broadly, and

Page 4105

1 therefore significant material left out of the questions

2 that were asked; it may have been taken very narrowly

3 and virtually nothing left out; it may have been ignored

4 by the interpreter and there may have been a complete

5 interpretation, but the only way that we can know that

6 is if the interpreter is here on the witness stand. If

7 the interpreter were to come here and say: "I have

8 reviewed the Serbo-Croatian tape and compared it with

9 the translations I made into English, and I, in fact,

10 ignored Mr. d'Hooge and interpreted everything. Every

11 question that was asked was completely interpreted and

12 every answer that was given was completely interpreted",

13 then I think I would not be able to make an objection,

14 because I think it would have been taken in accordance

15 with Rules 42 and 43. So I'm not suggesting that there

16 is a permanent defect here. I'm suggesting that there

17 is a temporary defect that maybe is capable of being

18 solved, but the only way we can know is if the

19 Prosecution brings that interpreter here, and it would

20 take maybe five minutes.

21 "Question: Have you reviewed it?

22 Answer: Yes, I have.

23 Question: Was anything left out?

24 Answer: No, it wasn't".

25 Then we could all be satisfied that it was

Page 4106

1 conducted in accordance with the rules. I think until

2 that happens we can't, because once there is that

3 instruction given: "Do not interpret every single word",

4 there is a problem.

5 JUDGE KARIBI-WHITE: Did you ask Mr. d'Hooge what he

6 regarded as background matters, because it limited that

7 she should not interpret word by word by referring to

8 background matters? What did he say he regarded

9 background matters to be?

10 MR. ACKERMAN: I don't recall that he gave an answer in

11 that, your Honour, because --

12 JUDGE KARIBI WHYTE: Because that is limiting.

13 MR. ACKERMAN: With all respect what he intended by what he

14 said and what the interpreter did as a result of it are

15 two different things. He is not capable of telling us

16 how the interpreter understood what he said. He is

17 only capable of telling us what he meant but he has no

18 way of knowing what the interpreter did, because he

19 doesn't understand Serbo-Croatian and he has no way of

20 understanding how the interpreter took his instructions.

21 JUDGE KARIBI WHYTE: That is if every interpretation is

22 word for word.

23 MR. ACKERMAN: No. If he said: "Don't do ..." --

24 JUDGE KARIBI WHYTE: Even if you do not, whoever interprets

25 word for word in every language? It is not done that

Page 4107

1 way.

2 MR. ACKERMAN: I am not suggesting it has to be done that

3 way. What I am suggesting is when the interpreter is

4 told not to interpret every single word, "especially

5 when we are speaking about background matters", we don't

6 know how the interpreter interpreted that instruction.

7 The only way to know is for the interpreter to come and

8 tell us how that instruction was interpreted.

9 JUDGE KARIBI WHYTE: There are so many things in which we

10 will be getting interpreters to come. Almost every

11 witness will have an interpreter to explain what the

12 interpreter has done.

13 MR. ACKERMAN: Your Honour, I please need you to understand

14 that I'm not suggesting at all that interpretations are

15 subject to scrutiny and enquiry on every occasion. The

16 only time I think it is subject to scrutiny and enquiry

17 is when the interpreter is given an instruction that

18 varies from what their normal job duties are. Their

19 normal job duties we all understand. When the

20 interviewer at the beginning of the statement says:

21 "Don't do this the way you ordinarily would. We're in

22 a hurry here. We have limited time so don't interpret

23 every single word, especially when speaking about

24 background", unless we can be certain that Mr. Landzo

25 understood in his language the questions that Mr. d'Hooge

Page 4108

1 was asking in English, then we can't be certain that the

2 answers to those questions are related to the English

3 question. That's where the problem is. It's not a

4 question where we could challenge every interpretation

5 in this court and have to bring every interpreter that

6 ever did an interpretation here to testify. It's when

7 it is said to an interpreter: "Don't do it the regular

8 way but do it this way this time because we are in a

9 hurry that there is a question".


11 MR. ACKERMAN: I am sorry. That's my argument and I ask

12 your Honours to consider it.

13 MS. McHENRY: If I could just very briefly respond, as I

14 believe everyone understands, the tape recording

15 contains the Serbo-Croatian that was spoken to

16 Mr. Landzo, which is what is important. Mr. d'Hooge does

17 not understand Serbo-Croatian, but he testified that he

18 verified that after the interview was done the

19 translation section of the Tribunal reviewed the tape,

20 the interpretation and the transcription and reported

21 that it was fair and accurate. Your Honours, we

22 believe that that is sufficient evidence that, in fact,

23 the rules were complied with in all respects. Of

24 course, your Honours could, if you believed it

25 necessary, ask the interpretation section again, but

Page 4109

1 given that the evidence that is currently before this

2 court is that the transcription of the Serbo-Croatian is

3 an accurate reflection of what happened on the tape and

4 that the interpretation done by the interpreter was fair

5 and accurate, that is certainly reliable evidence, and

6 we believe more than sufficient. We will, of course,

7 point out that the tape was immediately given to defence

8 counsel at the time, and we will also point out that

9 defence counsel who was present speaks both English and

10 Serbo-Croatian and defence counsel has had both the tape

11 and the transcription, and so had there been any real

12 question of interpretation, they could have brought it

13 up. We believe that Mr. d'Hooge's testimony that the

14 interpretation section has already verified the

15 interpretation and the transcription is more than

16 sufficient. Thank you.

17 JUDGE KARIBI WHYTE: Thank you very much.

18 MR. ACKERMAN: Just very briefly, your Honour, I may be

19 corrected by looking at the transcript, but I do not

20 think that was the testimony of Mr. d'Hooge. I think

21 his testimony was that he had looked at the English

22 version of the transcript and he was satisfied that the

23 English version reflected what had gone on, but it

24 wouldn't even be appropriate for him to come in here and

25 testify what someone else told him about their view of

Page 4110

1 that transcript. I think there is a failure and

2 apparently I am not being precise -- I think there is a

3 failure of communication. I may not be making my

4 point. My point is not that there is not a

5 contemporaneous Serbo-Croatian recording of what went on

6 here. My point is that the only person that was

7 involved in that process that knows whether the English

8 questions were properly interpreted to Mr. Landzo so that

9 the answers he gave were fairly responsive to the

10 question is the interpreter who could take a look at, or

11 any interpreter that could take a look at it and say:

12 "Yes, every question was fairly interpreted". That's

13 what we don't have.

14 MS. McHENRY: If I might be permitted to read a question --

15 since Mr. Ackerman has invited me to, if I find it.

16 MR. ACKERMAN: I welcome it.

17 MS. McHENRY: The question asked by me to Mr. d'Hooge was:

18 "Question: sir, can I ask if you are aware of

19 whether or not the translation section of the Tribunal

20 compared the English and the Serbo-Croatian version of

21 the transcript and the video to ensure that the

22 translation and transcription were fair and accurate?

23 Answer: Yes".

24 JUDGE KARIBI WHYTE: I suppose this might not even satisfy

25 Mr. Ackerman, because your argument is that you are not

Page 4111

1 sure whether the interpreter actually interpreted

2 everything which Mr. d'Hooge was saying in English into

3 Serbo-Croatian because of the instruction he gave her.

4 MR. ACKERMAN: That's my position, but I do stand corrected

5 on the record. That obviously was the question and the

6 answer.

7 JUDGE KARIBI WHYTE: Was there any confusion about

8 interpretation problems?

9 MR. ACKERMAN: Did you ask me --

10 JUDGE KARIBI WHYTE: Because nobody is challenging the

11 interpretation, are they?

12 MR. ACKERMAN: What I'm challenging is the instruction which

13 is in violation of the rules of this court not to

14 interpret every single word, especially background.

15 JUDGE KARIBI WHYTE: Then you don't need an interpreter for

16 that. If the Rule is violated, it's violated. So you

17 don't need an interpreter, because the violation is in

18 the instruction itself. So it does not matter whether,

19 in fact, it wasn't carried out.

20 MR. ACKERMAN: Thank you.

21 JUDGE KARIBI WHYTE: So you understand we will write a

22 ruling on your submission.

23 MR. MORAN: Your Honour, like Mr. Ackerman, I filed a motion

24 under Rule 73C and have not received a ruling. I'm not

25 going to argue with the prospective ruling of the court,

Page 4112

1 and I've got a pretty good idea what it is, but just to

2 guarantee that any kind of error, if there is any, is

3 preserved, I think I need to make a couple of minutes of

4 argument and objection to the admission of Mr. Delic's

5 statement.

6 Basically, the assertion was and it was backed up

7 by a signed statement from Mr. Delic, that he did not

8 knowingly and voluntarily waive his rights to silence.

9 As the court will recall, he actually had counsel

10 sitting next to him when he gave both of the recorded

11 statements, and no one is suggesting that the rules --

12 that Rule 42 and 43 were not complied with. However,

13 the right to counsel, something that's guaranteed by our

14 Statute, something that's guaranteed by the European

15 convention of human rights, I found it in Article 8 of

16 the inter-American Convention of Human Rights, I would

17 suggest it is more than just having a lawyer, someone

18 licensed to practice law some place. It includes the

19 right to have a lawyer who is familiar with the law

20 that's being applied. Judge Jan said something this

21 morning that frankly I didn't know about the law in

22 Pakistan.

23 JUDGE JAN: A statement made by an accused before the

24 police is inadmissible in evidence.

25 MR. MORAN: Your Honour, that is, as I understand it, the

Page 4113

1 same thing as the law in Yugoslavia. Now you and I

2 come from the same legal tradition. Basically we speak

3 -- and Judge Karibi-White also -- all three of us speak

4 the same legal language with twists and turns to it,

5 obviously with our national differences, and I would

6 submit to you if I suddenly found myself in Pakistan

7 representing someone who was suspected of an offence and

8 being questioned by the police, my knee jerk reaction

9 would be: "You don't talk", because the law in America

10 is very, very different from the law in Pakistan. On

11 the other hand, a very fine lawyer from Pakistan dropped

12 into Houston, Texas, representing a Pakistani, might

13 very well say: "Go ahead and talk to officer so-and-so,

14 because it can't be used against you". Then the

15 question becomes: is that a knowing waiver of his right

16 to silence when it's based on that kind of advice? I'm

17 suggesting that a court could find that that waiver was

18 not a knowing waiver and therefore not a voluntary

19 waiver.

20 I would also suggest that when you say voluntary

21 as it's used in the rules, it means something other

22 than: "Okay, I'll talk if you loosen the thumb screws".

23 It has to be a knowing waiver. You have to know what

24 you're doing.

25 JUDGE KARIBI WHYTE: Wouldn't we prefer a mistaken waiver?

Page 4114

1 MR. MORAN: A mistaken waiver or --

2 JUDGE KARIBI WHYTE: Not that he didn't know he was waiving

3 but if he knew better, he would not have.

4 MR. MORAN: Your Honour, I think that's a good way of doing

5 it. The knowing would be what we would say in the

6 United States, that you don't understand the

7 consequences of your waiver. Again that would be a

8 mistaken waiver. I think that, given Mr. Delic's

9 written statement to the court, which is attached to my

10 Rule 73 motion, and the status of the law in Yugoslavia,

11 the kind of advice one would be given by someone who is

12 familiar with that system and not familiar with the

13 system used in the Tribunal, which is frankly very

14 familiar to me, because it's right out of my Supreme

15 Court rules, and on each side of me I've got a very good

16 friend who is a Yugoslav lawyer and I think they are

17 both fine lawyers and I think both of them would stand

18 up here and tell you at the time they talked to their

19 clients and their clients talked to the investigators

20 from the Tribunal, they were under the misapprehension

21 that the law would be applied as it would be in

22 Yugoslavia or in Pakistan. Their advice to their

23 client was based upon that.

24 JUDGE JAN: I am not doubting the competence of counsel

25 which Delalic had at the time, but I'm sure any lawyer

Page 4115

1 would study the rules of the Tribunal before giving any

2 advice to his client. It is very clearly stated that

3 if he makes a statement, it will be used in evidence

4 against him. Any lawyer would study these rules before

5 giving advice to his client. I am not doubting the

6 competence of counsel. This is done by senior

7 counsel. They read the rules and the rules clearly

8 state: "This evidence will be used against you".

9 MR. MORAN: Your Honour, I am not disagreeing with you at

10 all.

11 JUDGE JAN: Because you are not giving advice to a client

12 if you don't know the law.

13 MR. MORAN: What I am suggesting is I am not focusing on

14 the attorneys at this point. I am suggesting --

15 JUDGE JAN: I think your argument basically is that the

16 counsel was not aware of the law here.

17 MR. MORAN: I am suggesting that the advice and everything

18 that went into the advice and also how the client

19 understood the advice should be viewed along the lines

20 of the law that people are familiar with.

21 JUDGE KARIBI WHYTE: Occasionally we have to think about it

22 but, you know, would you regard mistake of law as an

23 excuse in this case?

24 MR. MORAN: As a defence, your Honour?

25 JUDGE KARIBI WHYTE: For this purpose, yes.

Page 4116

1 MR. MORAN: For this purpose I haven't thought it through.

2 I can tell you what my view would be on mistake of law

3 as an absolute defence to a crime, which would be that

4 if it's a reasonable mistake of law that --

5 JUDGE KARIBI WHYTE: Now you have added the other word

6 "reasonable".

7 MR. MORAN: Your Honour, I'm sitting next to a law Professor

8 who has probably been known during recitation to say:

9 "Let's change the facts". The rule that I'm used to on

10 mistake of law is this, your Honour, that if it's a

11 reasonable mistake of law, that is it's based on some

12 kind of a --

13 JUDGE KARIBI WHYTE: That is if the knowledge of the law is

14 a factor.

15 MR. MORAN: Well, if it's based on some kind of a court

16 decision or a Statute or something like that, where I

17 might think I have the right to do this act, to take

18 this computer home with me, and it turns out that I

19 don't, then I'm not guilty of the crime because I have

20 relied upon an order from the Trial Chamber that I could

21 take this computer home with me, even though the

22 Registrar would complain about it a little later.

23 JUDGE KARIBI WHYTE: It would not be a mistake if you say

24 you have an order. You might have an order.

25 MR. MORAN: I think when we are talking about the waiver of

Page 4117

1 a right you have to look into whether that waiver --

2 again in my parlance -- is a knowing waiver, that you

3 know what it's doing so that the --

4 JUDGE KARIBI WHYTE: I agree. A person does not waive

5 something unless he knew about that. That's the sense

6 of that thing. That's only when you can waive.

7 MR. MORAN: And the consequences of waiver. I am

8 suggesting as it applied to Mr. Delic and probably

9 Mr. Delalic, although I am sure not going to make an

10 argument for them because they can make their own

11 arguments, they are fine lawyers, I am suggesting that

12 he might not have known -- that he did not know the

13 consequences of the waiver. No one is accusing the

14 Office of the Prosecutor of doing anything wrong, and I

15 don't want anyone to think that I am. What I'm just

16 suggesting is that he was dropped and his lawyer was

17 dropped into a situation involving a legal system that

18 is again something that -- the first time I read these

19 rules, they read like my federal rules of criminal

20 procedure to a great extent, and I'm very used to the

21 procedural rules at least in general here, but when you

22 get someone from a country that has a completely

23 different legal system, a lawyer and a client who are

24 used to dealing with completely different legal systems,

25 that you get into the knowingness of that, and that's my

Page 4118

1 suggestion, and that's my objection to the

2 admissibility.

3 Again I've got a real good idea what the Trial

4 Chamber is going to Rule on my Rule 73 motion.

5 JUDGE JAN: Don't anticipate.

6 MR. MORAN: If per chance -- if I'm wrong, I'm very happy

7 and I appreciate it. If I'm right, I wouldn't want the

8 Trial Chamber to think that I'm arguing after a decision

9 is made. Once a decision is made, it's made and we all

10 live with it. I thank the Trial Chamber for its time.

11 JUDGE KARIBI WHYTE: Thank you very much. It's a lot of

12 interesting and very beautiful arguments.

13 MR. GREAVES: I don't know whether you would welcome some

14 assistance on the slightly different position of

15 ignorance of the law in English law, which is different

16 from that which Mr. Moran knows. Ignorance of the law

17 in English law is no defence, although it can afford

18 significant mitigation, which I think is a slightly

19 different position from that which my learned friend has

20 in his jurisdiction. I suspect it may be similar in

21 your Honour's jurisdiction and Judge Jan. I see Judge

22 Odio Benito says the same. I hope that's helpful.

23 MS. McHENRY: Your Honour, I will just very briefly

24 respond. I will note also that I thought there had

25 been an oral decision made also about the Rule 73, but I

Page 4119

1 may well be wrong. In any event, the Prosecution

2 believes that it is beyond question that the accused

3 understood his rights and the consequences from waiving

4 those rights. We believe any contrary claim is frankly

5 incredible. We would also note that we don't believe

6 that the Defence should be allowed to make sort of vague

7 allegations about what may or may not have been advised

8 without waiving the attorney/client privileges so we can

9 tell, but in any event what is clear and beyond dispute

10 is that the accused was told in his own language of his

11 rights, which include that he had the right to remain

12 silent, but anything he said would be recorded and could

13 be used in evidence. I don't believe that there can be

14 any misunderstanding of this very clear and

15 non-complicated provision. The Defence counsel or his

16 attorney -- the accused himself had a chance to ask

17 questions if he was confused, and he did not. We would

18 also note, although we think it's unnecessary, because

19 we believe the clear language of the rules controls and

20 makes it clear that the accused who is mentally

21 competent did understand exactly what he was doing, that

22 in June of 1996, prior to the first interview of

23 Mr. Delic, the Defence of Mr. Delalic had filed a motion

24 seeking to exclude Mr. Delalic's prior statement making

25 it very clear that there was already law in this court

Page 4120

1 that statements would be used against you, and indeed in

2 the beginning of December, prior to Mr. Delic's second

3 interview, the Prosecution had, in fact, sent the

4 Defence, including the Defence of Mr. Delic, a letter in

5 which we formally stated that we would use the

6 statements of all accused as evidence against them, or

7 that it was our intention to do so. So we do not

8 believe that there can be any claim that the accused did

9 not understand exactly what he was doing. The rules

10 were fully complied with. There was a presumption that

11 the statements are admissible and we believe all the

12 facts and circumstances also support the admission of

13 the statements. Thank you.

14 MR. MORAN: Your Honour, I think I've made my point and I

15 think that the Trial Chamber understands my point. If

16 there's any questions, I will be happy to try to answer

17 them as best I can. If there aren't any, I'm going to

18 sit down.

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

20 much. I think instead of wasting your time and asking

21 you to be concerned about other witnesses, I agree we

22 will admit the statements, but, as I said in the last

23 ruling, all these statements will be subject to other

24 circumstances affecting the weight to be attached to

25 what these admissions are, so that they are not by being

Page 4121

1 admitted described as the truth of what is being put

2 forward. We will still consider whether these really

3 satisfy the rules themselves. They are admitting them

4 for the purposes of the proceedings.

5 MR. MORAN: Yes, your Honour. I want to thank the Trial

6 Chamber for the consideration and I also just want to

7 point out that it has been -- the way this Trial Chamber

8 has ruled on several other things is something that I

9 think a lot of courts ought to consider doing. You are

10 always willing to take a second look at the

11 admissibility of evidence that has been previously

12 admitted.

13 JUDGE KARIBI WHYTE: We watch everyone. This is not the

14 last word. This is what I keep saying. It is not the

15 last word. Merely because a statement is admitted does

16 not mean it has proved what it is being admitted for.

17 MR. MORAN: I frankly wish the courts in my jurisdiction

18 would adopt the more enlightened rule that this Trial

19 Chamber has where we can always take a second look at

20 the admissibility of evidence.

21 JUDGE JAN: You are drawing the distinction between the

22 admissibility and the probative value. The probative

23 value has to be determined after taking into

24 consideration all the evidence.

25 MR. MORAN: That's true. Something inadmissible has to

Page 4122

1 probative value because it is not here.

2 JUDGE JAN: It's not before us.

3 JUDGE KARIBI WHYTE: It has to be weighed against all the

4 other factors.

5 MR. MORAN: Like I say, this Trial Chamber seems to be

6 taking a very enlightened view on both of those

7 subjects. I would like to see more of it when I get

8 home.

9 JUDGE JAN: You need to be congratulated because you

10 anticipated correctly our decision.

11 MR. MORAN: I missed it, your Honour.

12 JUDGE JAN: You ought to be congratulated for correctly

13 anticipating our decision.

14 MR. MORAN: I got trained in law school. That's what we are

15 trained to do, guess what judges will do. I thought

16 I had a pretty good guess.

17 MR. GREAVES: The real trick is guessing what juries do.

18 That is a fine art.

19 JUDGE KARIBI WHYTE: I suppose that's all for today.

20 MS. McHENRY: We have a witness, if your Honours want us to

21 call the next fact witness.

22 JUDGE KARIBI WHYTE: Let's have the next witness.

23 MS. McHENRY: The Prosecution calls Mr. Dordic.

24 JUDGE KARIBI WHYTE: Please swear the witness.

25 Mr. Novica Dordic (sworn)

Page 4123

1 Examined by Ms McHenry

2 MS. McHENRY: Sir, may I ask you to state your full name,

3 please?

4 JUDGE KARIBI WHYTE: I hope the interpretation is getting

5 through to him.

6 MS. McHENRY: Sir, can you hear me?

7 A. I don't hear the translation.

8 MS. McHENRY: Can you hear me now, sir?

9 A. Yes, yes.

10 Q. Thank you. Sir, would you please state your full name?

11 A. My name is Novica Dordic.

12 Q. Sir, am I correct that you have not requested any

13 protective measures connected with your testimony here

14 today, in other words you are happy for your name to be

15 known?

16 A. Yes.

17 Q. Now, sir, I'm going to ask that when you answer my

18 questions you speak very slowly, and I will probably

19 remind you of that during your testimony, so I'll just

20 warn you now. How old are you, sir?

21 A. I am 28.

22 Q. How far did you go in school?

23 A. I have secondary education.

24 Q. What is your ethnic background, sir?

25 A. Serb.

Page 4124

1 Q. In the beginning of 1992 where were you living?

2 A. In the village of Zukici near Konjic.

3 Q. How were you employed?

4 A. I was working in the railway transportation service of

5 Sarajevo, the unit in Bradina. I was working in the

6 railway transportation service of Sarajevo in the unit

7 at Bradina.

8 Q. Okay. Did there come a time when you left Zukici, as

9 it was no longer your residence?

10 A. I worked in Bradina and I went to work regularly until

11 there was transportation, until it was working. I left

12 Zukici somewhere around 24th April because it was not

13 safe to stay there any more.

14 Q. Where did you go --

15 A. Because -- I went to Bradina.

16 Q. In May of 1992 was there any military action in Bradina?

17 A. In Bradina military operations were -- let me tell

18 you. Problems had already started in Sarajevo and

19 Mostar. I don't know myself what was happening, some

20 kind of a war. There was fighting, I don't know for

21 what reasons, and almost all the ethnic groups -- all

22 people joined up with their ethnic group. Just as I

23 went to Bradina, so in Podrazic, in Konjic, the Muslim

24 and Croat forces and Serb forces were separating one

25 from another. There was no inter-ethnic communication

Page 4125

1 as before. People didn't contact amongst each other

2 inter-ethnically. They were separating.

3 MR. MORAN: I am going to object to this as

4 non-responsive. The question was, was there military

5 action in Bradina in May 1992.

6 MS. McHENRY: I think the witness is leading up to the

7 answer. As a result of what you have just described,

8 sir, are you aware of whether or not there was any

9 military action, meaning fighting, or attacks, or

10 defences, in Bradina in May of 1992?

11 A. I don't exactly know the date, but the tunnel was blown

12 up just below Bradina, it is a tunnel on the highway,

13 and I think that with the blowing up of that tunnel

14 tensions in the whole municipality were heightened, and

15 I personally saw that tunnel. I was still in Zukici at

16 the time. I was staying with a relative near the

17 highway -- near the tunnel, maybe 250 or 300 metres from

18 the tunnel, and in the evening some vehicles came up,

19 because at that time there was no movement of vehicles,

20 especially not at all, and some vehicles came. It was

21 night-time. They entered the tunnel. We were looking

22 out to see what was happening, because there were four

23 or five vehicles moving, and they reached the tunnel.

24 They switched off their lights. We watched them. We

25 could actually see only the lights. At some point in

Page 4126

1 time two or three vehicles came back. After that

2 something terrible happened. A glimmering light

3 appeared and a terrible explosion was heard, probably

4 coming from one of the vehicles on the highway just

5 below us.

6 Q. Sir, at some point after the tunnel was blown up was

7 there any additional military action in Bradina itself,

8 and I mean --

9 A. In Bradina people were in a panic after that. People

10 who had transistor radios, as there was no electricity,

11 were listening to Konjic radio, which blamed us for

12 mining the tunnel.

13 MS. McMURREY: Your Honour, I'm going to have to object as

14 non-responsive. The question was: "Was there any

15 military action in May" and he is going on to another

16 speech. Thank you.

17 MS. McHENRY: Sir, at this point it's not necessary for you

18 to describe the background. Can you just tell me

19 whether or not there came a time when for various

20 reasons there was actually military action, meaning that

21 the village was attacked or forces from within or

22 without engaged in any kind of fighting or shelling or

23 shooting?

24 MS. McMURREY: I'm going to say we have no objection to

25 Ms McHenry leading the witness on that question. Thank

Page 4127

1 you.

2 JUDGE KARIBI WHYTE: Actually limit your answer to

3 Bradina. Is that what you want him to do? You should

4 not go --

5 MS. McHENRY: Yes, sir.

6 JUDGE KARIBI WHYTE: Don't make it wider. Stop at

7 Bradina.

8 JUDGE JAN: Because that will expand the cross-examination.

9 THE INTERPRETER: Microphone, please.

10 MS. McHENRY: Thank you, your Honour, for the warning.

11 Sir, just with respect to Bradina itself, was

12 there a time when there was some sort of fighting or

13 shooting or shelling?

14 A. Yes. I just wanted to provide more detail, but what

15 happened was there was fighting on the hill of Velika on

16 13th May, if I remember the date correctly. It's a

17 hill above Bradina. There was some shooting there.

18 Who was firing at whom I don't know. I only know that

19 we heard reports that we had been attacked, that we had

20 to defend ourselves, that whoever had any weapons should

21 go there, and this went on for about two days and then

22 it calmed down until 25th May.

23 Q. Just very briefly, sir, what happened on 25th May?

24 A. On 25th May I don't know exactly, somewhere in the

25 afternoon, fighting resumed on that same hill and then

Page 4128

1 shells started falling on Bradina, and this went on all

2 of that afternoon until late at night, and it continued

3 the next day. I was in a wood near the highway. No

4 one was firing at me, nor were there any operations

5 there. Then we returned to Bradina to see what was

6 happening. This was the second day when most of

7 Bradina was on fire. The houses in Bradina were mostly

8 hit by shells.

9 Q. At the time of these events, sir, were you armed and, if

10 so, with what kind of weapon?

11 A. Yes, I was armed with an automatic rifle of Yugoslav

12 make.

13 Q. Where did you get your weapon?

14 A. I got it through a friend.

15 Q. Prior to the attack had you participated in any armed

16 defence of Bradina?

17 A. No, except after May 13th watch duty was organised along

18 the surrounding hills.

19 Q. Did you participate in the watch duty and, if so, were

20 you armed at the time?

21 A. Yes. Yes, I participated in these duties and I was

22 armed, because it is normal to be armed if you're on a

23 hilltop in the woods, at night especially.

24 Q. If you could, sir, just briefly describe what you did

25 when the attack on Bradina started and you went to the

Page 4129

1 woods and came back leading up to the point of

2 describing whether or not at some point you were

3 captured or arrested, please?

4 A. Let me tell you when we got to Bradina there were three

5 of us in my group. There was chaos in Bradina. There

6 was a white flag flying in the centre. They said there

7 were a lot of casualties but we had no idea what was

8 actually happening. We reached a cafe which had a very

9 large cellar and mostly women and children were housed

10 there. It was chaotic. There was crying and

11 weeping. They told us that we had to decide what we

12 were going to do, either to flee or to give ourselves

13 up. So we fled. We fled towards the other part of

14 Bradina, which is removed from the centre, and it's

15 closer to the mountains, and we found more 20 or so

16 people there, who were also ready to flee. They didn't

17 dare wait for the Muslim and Croat forces to enter

18 Bradina.

19 So we mostly climbed across the mountains the next

20 four or five days. We decided to head towards

21 Kalinovik, because there was fighting in Hadici and

22 Sarajevo already and we didn't know what would happen to

23 us there. There was shooting at us from the

24 surrounding hills. We don't know who was firing. We

25 had three or four lightly wounded people and we later

Page 4130

1 learned the village was called Ljuta where we arrived

2 and there was very intensive shooting from the

3 surrounding hills and then we dispersed. One of us

4 went down a path. His name was Zaro Mrkajic. I later

5 learned that he had gone to the village. He later

6 called on us to surrender. He said that those people

7 didn't do anything wrong, that they just wanted to

8 collect our weapons and that they would transfer us to

9 Kalinovik. So we decided to that path and these people

10 really did treat us decently. Nobody beat us, nor did

11 they do anything bad to us. They just took our weapons

12 and it was already dark so that they couldn't transfer

13 us to Kalinovik that same night, but by the next day

14 that they would take us there and there would be no

15 problems. We agreed to that.

16 Then they took us to a schoolhouse in the

17 village. I think it was a school, a building anyway.

18 They put us up there and they told us to dry up, because

19 we were all wet, tired and hungry. Shortly afterwards

20 a man entered with an automatic rifle and he started

21 shooting into the ceiling of this premise that we were

22 in. He ordered us to lie down. Then some other men

23 came in, not those from before. They started beating

24 us with various objects, rifles, anything they could get

25 hold of. They called us Cetniks. They said that this

Page 4131

1 man who had entered first, that his brother-in-law had

2 been killed or something like that, and they continued

3 beating us until late that night. That moment I saw

4 two young men with HOS insignia on their uniform sleeves

5 and very short hair. This went on, this beating, this

6 heavy beating. Then they found pieces of wire. I

7 didn't see handcuffs. They tied our hands with this

8 wire and I think it must have been just before dawn,

9 about 3 o'clock, they took us somewhere from this

10 school, and we got up as far as we could, because we

11 were all beaten up. Each one of us had his own

12 guard. The people in the village had woken up. They

13 beat us with various objects. As we passed by in a

14 column, they insulted us. We didn't know why. Then

15 we had to go on through a wood, across some hills. I

16 don't exactly know where we were. We went on until we

17 reached a path where two small trucks were waiting.

18 The beatings continued. They climbed us into these two

19 small trucks and under protection of guards they took us

20 somewhere. At that moment at least I wasn't aware

21 where I was.

22 They unloaded us in a village I later learned. I

23 remember there was a prefabricated building there, a

24 school or something like that, and I heard people

25 talking and mentioning the village of Sabici, so it was

Page 4132

1 probably the village of Sabici. We spent maybe around

2 one hour in that school. They continued to beat us, to

3 mistreat us, to swear at us. Then they loaded us on to

4 a bigger truck. I don't exactly know the make. Then

5 again under the escort of five or six young men -- I

6 must say they were very young, 16, 17, 18 on the outside

7 -- they took us away. Again I heard from the

8 conversation the guards were having that we were

9 crossing Mount Igman. All that time these young boys

10 were beating us, hitting us with various objects, which

11 they were carrying in addition to the rifles that they

12 normally had. They were kicking us with boots, hitting

13 us and climbing on our shoulders.

14 Q. Where did they bring you, sir?

15 A. They took us later -- not I but other people realised it

16 was the Famos Hotel on Mount Igman.

17 Q. Where did you go after you were at the Famos Hotel? Did

18 you stay there or were you brought somewhere else after

19 that?

20 A. After the Famos Hotel they took us out in front of the

21 hotel and we headed for the trucks. There were about

22 100-150 people there, mostly women and elderly, and the

23 other side there was the army, the military, and they

24 kept hitting us, cursing at us, saying that we were

25 Cetniks, and calling us by all kinds of names, up to

Page 4133

1 this truck. We climbed on it and the same guards with

2 there, and suddenly the truck veered from the asphalt

3 road. It must have come across a hole in the road. I

4 heard shooting above my head. A guard that was sitting

5 on the side of the truck behind me was shooting and I

6 saw a man who was sitting leaning on my knee, that his

7 sweater was torn in the area of the heart. This was a

8 relative of mine called Dragan Vujicic who died on the

9 spot from the bullets fired from that rifle. Three or

10 four other people were wounded on that occasion. One

11 of them lost an eye. I thought he was dead. No one

12 did anything except putting on a bandage, so that they

13 couldn't look at him because it was a terrible sight.

14 Then from the mutual conversation I heard that

15 they were taking us to Konjic. They mistreated us all

16 the time. They beat us. They took out SDA badges and

17 HDZ badges from their pockets, forcing us to kiss

18 them. Then they even got a dead boar and through it

19 into the truck, saying it was our symbol and forcing us

20 to kiss it. Then we were taken in front of the SUP

21 building in Konjic. By that time I could hardly see

22 from the beatings. My eyes were almost closed. I

23 could hardly discern anything. Anyway, we were not

24 allowed to look left or right.

25 Q. Okay. Were you brought anywhere after you were brought

Page 4134

1 to the SUP building in Konjic? Were you then brought

2 anywhere else?

3 A. No, we weren't taken into the building of SUP but only

4 the courtyard of the SUP building and then the leaders

5 of the SUP at the time came out. Jasmin Guska, Sefic

6 Niksic, Diksa and Miro Stenek, all of them were there.

7 I heard them insulting Rajko Dordic, who was a colleague

8 of theirs, why he was with us. He was the worst. He

9 was a duke, a "vujvujda". Then some boys, young men

10 beat us in front of there. Then they took us out of

11 town. I didn't dare lift up my head, but at one point

12 I saw that we were in front of the Konjic motel on the

13 way out of the town, and I saw on the terrace of the

14 motel that there were many soldiers. They were

15 cursing, firing into the air and celebrating the fact

16 that they had captured us, and then we went on. Very

17 soon after that we found ourselves in a building which I

18 did not know from before. It was my first time to be

19 there. Anyway my freedom of movement was limited. I

20 couldn't look around. We were lined up against a wall,

21 facing the wall, so that I couldn't see anything. I

22 could just feel the blows.

23 MS. McMURREY: Your Honour, I'm going to object as

24 non-responsive. In this story I've lost where we go

25 now. Can we just kind of figure out where he is

Page 4135

1 located at this point?

2 MS. McHENRY: Sir, at this point were you inside a building

3 or just inside a place?

4 MS. McMURREY: I am sorry, are we still in Konjic or are we

5 --

6 MS. McHENRY: I am going to get there.

7 MS. McMURREY: Okay. Thank you.

8 MS. McHENRY: Sir, at the time you have just described when

9 you were placed against a wall, were you inside a

10 building or outside?

11 A. We were in a kind of compound. We had passed through

12 the gate. At the time I didn't know that it was the

13 Celebici camp and the barracks of the former Yugoslav

14 people's army. We were lined up, we were beaten and

15 then I saw the body of Dragan Vujicic that was thrown

16 into the container.

17 MS. McMURREY: I object as non-responsive. She just asked

18 what building he was in and where it was located.

19 Could we keep it to question and answer form, please?

20 MS. McHENRY: Let me just ask you: the compound you were

21 in, am I correct that you learned that it was called the

22 Celebici and it was the former barracks of the Yugoslav

23 Army? Did I understand you correctly?

24 A. Yes. I knew that we must have been near Celebici,

25 because the drive lasted about ten minutes. I was born

Page 4136

1 in Konjic, so I'm familiar with the municipality of

2 Konjic.

3 Q. Sir, can you tell us -- so approximately what was the

4 date that you were actually brought to Celebici?

5 A. I think it was 30th or 31st May 1992.

6 Q. How long overall did you remain in Celebici?

7 A. From that time until -- I don't know the exact date but

8 I think it was 20 days before the camp was closed.

9 Q. Do you know what month?

10 A. October, I think.

11 Q. October of 1992, sir?

12 A. Yes.

13 Q. About how many persons were brought to Celebici at the

14 same time as you were, approximately?

15 A. About 22, 23, maybe less.

16 Q. Were there already other prisoners in Celebici when your

17 group arrived, or were you the first prisoners to go to

18 the camp?

19 A. At that time I didn't know that it was a camp even nor

20 whether there were any prisoners inside.

21 Q. Did there come a time, though, that you learned whether

22 or not you were the first group of prisoners or whether

23 or not there were already prisoners there before your

24 group?

25 A. A long time after that I learned that before me, quite a

Page 4137

1 long time before me, there were prisoners there, but I

2 learned that later.

3 Q. Okay. Now, sir, can you please briefly describe what

4 happened when you first arrived at the camp? I believe

5 you started to say you were placed against the wall.

6 Can you just briefly describe what happened?

7 A. I was just starting to describe that. As I was saying,

8 we were lined up against a wall. We were already

9 exhausted. Our hands were tied. They would take away

10 one or two from this column that I was in. I didn't

11 know where I was. I didn't dare turn around, but as

12 this body was very close to me, I saw it being taken

13 away in a container. I'm saying this to show how

14 brutal it was, how they treated this corpse. Then they

15 came for me, two heavily built men in uniform much

16 bigger than I was.

17 Q. I'm sorry. Before you get to that, the body that you

18 saw, I believe you said it was Dragan Vujicic. Was he

19 the person who had been killed on the truck, just so

20 that everyone can understand?

21 A. Yes. Yes. Yes.

22 JUDGE KARIBI WHYTE: I think let's have a break now and we

23 will return at 4.30.

24 (4.00 pm)

25 (Short break)

Page 4138

1 (4.30pm).

2 JUDGE KARIBI WHYTE: Let's have the witness. Ms McHenry,

3 I hope you will try and get your witness restrained.

4 He wants to say everything he has in mind. Let's get

5 on with it.

6 MS. McHENRY: Yes, your Honour. He has a lot of

7 information. I think once we are at Celebici it will

8 be directed.

9 JUDGE KARIBI WHYTE: I don't think he wants to be guided.

10 Try and let him know that we have a time limit for

11 everything.

12 (Witness re-enters court)

13 JUDGE KARIBI WHYTE: Remind him he is on his oath.

14 THE REGISTRAR: I should like to remind you that you are

15 still testifying under oath.

16 MS. McHENRY: Sir, I believe you had indicated that after

17 you were on the wall and people were being beaten two

18 men came up to you. Can you just tell us what happened

19 when these two men came up to you? What happened next?

20 A. When these two heavy men came up to me they caught me by

21 my hands that were tied behind my back and my shoulders,

22 and they took me to a building that was behind my back

23 at the time. They took me through a corridor and then

24 from one of the rooms a young man ran out. He hit me

25 two or three times, mostly with his leg. He kicked me

Page 4139

1 in the chest. After that they took me into an office,

2 where Miro Stenek was seated. These were people who

3 used to be working in SUP, and Sefik Niksic. There was

4 a woman there.

5 MS. McMURREY: I am going to object. The question was when

6 the two men came up behind you at the wall, what did

7 they do to you? Now he has gone into another story.

8 The objection is non-responsive.

9 MS. McHENRY: I think this is entirely responsive. I asked

10 him what happened next. He is telling me. Certainly

11 this is the information I wanted that I believe is

12 relevant and the witness should hear. I believe it is

13 responsive to what happened next and is directly

14 relevant to these proceedings.

15 JUDGE KARIBI WHYTE: He is responding to what happened

16 after the two men. It is a continuation of that.

17 MS. McMURREY: Yes. What happened next is a vague question,

18 your Honour, and it leaves the door --

19 JUDGE KARIBI WHYTE: That is what he understood.

20 MS. McMURREY: -- too wide for this examination. If we

21 could just narrow the scope of the questions, I believe

22 he would be able to respond more accurately. Thank

23 you.

24 MS. McHENRY: Since he is responding with directly relevant

25 testimony, sir, if you could just continue with what

Page 4140

1 happened when you were -- when there were these two men

2 and the woman in the room what happened next.

3 JUDGE KARIBI WHYTE: What happened to him next.

4 MS. McHENRY: Yes. What happened, sir, after you were

5 brought into this room? What happened to you after you

6 were brought into the room with the people you described

7 in it? Please continue.

8 A. They sat me down in a chair facing the two of them and

9 they said -- they asked me whether I knew why I was

10 there. I said: "No". They said that I should make a

11 statement about everything that had happened in Bradina

12 and around it and how I had been brought to that

13 building, that compound. At that moment I was not

14 aware where I was. They started asking me questions

15 whether I had been armed, what arms I had, where I was

16 when we were attacking. They were saying that we were

17 attacking instead of us having been attacked. All that

18 we said at that hearing, all the questions, were mostly

19 put by Sefik Niksic, and, as I was saying, they asked

20 about things that I didn't know about, nor did I know

21 that there were so many casualties in Bradina, that

22 there were many dead. They asked me whether I knew

23 what we had done. I was astonished. I didn't know

24 what they meant. What had we done to make us

25 responsible for all this? What weapons I had; who had

Page 4141

1 given me those weapons. All this was taken down.

2 JUDGE KARIBI WHYTE: Do you understand him?

3 MS. McHENRY: Yes, your Honour. He is talking about his

4 interrogation.

5 JUDGE KARIBI WHYTE: "Us" and "we" he is talking about.

6 Do you understand who all those people are?

7 MS. McHENRY: I believe I do. Let me clarify it. Sir,

8 when you talk about "us", are you talking about the

9 people who were in Bradina? When they were asking you

10 about what happened in Bradina, when you say: "They

11 were asking about why we did this", are you referring to

12 you and the other people in Bradina?

13 A. Yes. They were thinking of the people in Bradina.

14 What they had done they were accusing us of doing it.

15 They said that we were to blame for what had happened in

16 Bradina. It was from them that I had learned that such

17 a major event had taken place in Bradina and that there

18 were many dead, but I knew nothing about that at the

19 time. I had been in Bradina, I had fled Bradina and I

20 didn't know what had happened. I only know about

21 Dragan Vujicic's death, who died at my feet.

22 Q. Sir, after they asked you any questions -- after they

23 asked you the questions that you have just told us

24 about, did they ask you to sign anything?

25 A. Yes. They asked me to sign, to sign this whole

Page 4142

1 statement that I had made, and they put the paper and a

2 pencil before me. I got up, but my hands were still

3 tied, and then Niksic was pointing to the paper and

4 asking me to sign and I wondered how I could sign.

5 That was the first time for me in my life to be forced

6 to do so, to be beaten, to be tied up and I tried to

7 sign with my hands tied and then one of these men who

8 had brought me to that room hit me. He forced me into

9 the chair again. Niksic told them to untie my hands

10 and I signed something, a statement.

11 Q. Did you have the opportunity to read what you signed or

12 did anyone read it to you before you signed it?

13 A. No.

14 Q. What were your hands tied with, sir?

15 A. Some kind of wire that was 3-4 mms thick.

16 Q. Sir, the room that you were interrogated in, do you know

17 what direction it faced? Did it face the medical

18 building or did it face the outside of the camp?

19 A. It was facing the building which was later the medical

20 building. I learned later that Dr. Relja and Dr. Petko

21 were there and it was a kind of dispensary. So from

22 that office I could see that building of the dispensary.

23 Q. After your interrogation, sir, what happened next? Were

24 you brought somewhere?

25 A. They tied me up again and they took me out back against

Page 4143

1 the wall, together with the other people who had been

2 interrogated and who had been questioned like me, so we

3 were lined up against the wall again.

4 Q. Then what happened next?

5 A. We waited there for some time. I think there were two

6 more people that had not been interrogated that had to

7 be questioned after me, and when they finished they

8 ordered us to go along a path. Later I learned that we

9 were heading for building Number 9, where I was

10 incarcerated all the time.

11 Then they brought us in front of the tunnel.

12 They lined us up and then a man appeared. I learned

13 later that he was Hazim Delic. I think he was

14 limping. They opened this building Number 9 and they

15 took out from there, I don't know the exact number, but

16 there were certainly 70-80 people. These people were

17 mostly from Bradina, mostly elderly people, and they

18 lined us up opposite us (sic). Then Hazim ordered them

19 to face us and we were at a distance of 3-4 metres

20 between us, and then he started telling them that this

21 group which I was in was to blame for everything that

22 had happened in Bradina. He called us Cetnik gang, and

23 then he took those people away somewhere, and we were

24 imprisoned in the premises where they had been.

25 This cell was an ordinary tunnel about 1.40 metres

Page 4144

1 wide, and there was an inclination going downwards. It

2 was about 30-odd metres long. On the walls we could

3 see traces of blood and remnants of clothing from the

4 people who had been incarcerated there before us. The

5 doors were closed on us and nobody interfered with us

6 after that.

7 Q. Sir, I'm going to ask that you look in front of you, and

8 maybe the clerk could please help him with the pointer,

9 and ask you if you recognise that large model in front

10 of you and, if so, you can point out the areas that you

11 have mentioned, including where you were taken for

12 interrogation, the wall you were placed against, and

13 then building Number 9 that you have referred to?

14 A. At first we were brought here in front of -- at first we

15 were lined up in front of this building marked with the

16 letter C and from there we were led into this

17 building. Probably this first or second window is the

18 window of the office of the one of these two windows.

19 Then from there we were lined up again in front and then

20 led along this path to this wall here, which I can't see

21 from here. Then we were lined up somewhere here where

22 we had just brought in, and those people came out of

23 this building here I think. The door was opened where

24 I'm showing and that is where those 80-odd people came

25 out from, and they were lined up along this canal and we

Page 4145

1 were standing here. After what I have already said,

2 they were taken away in that direction and we were

3 placed inside this building. (Indicating).

4 Q. Sir, as long as you are using the model now just in an

5 effort to save time can you tell us any other areas --

6 just show us any other areas of the model that you came

7 to be familiar with at the camp?

8 A. For this time that I have been talking about I knew

9 nothing else than I have told you, but later on I

10 learned about the other buildings.

11 Q. Okay. Why don't you just now tell us about the other

12 buildings that you became familiar with and the other

13 areas, and then I believe it may just help later on when

14 you are explaining --

15 JUDGE KARIBI WHYTE: Why do you want it now? There is

16 everything relevant you can talk about.

17 MS. McHENRY: Sir, if you just sit down, I will wait until

18 we get to those parts.

19 Can you describe what the conditions were like in

20 Tunnel 9 -- I'm sorry -- in building 9, sir?

21 A. As I have already said, there was a metal door in the

22 front and it goes from one end of the building to the

23 other. The door had two parts. There was about a 10

24 per cent decline, and after maybe some 20 metres it

25 straightens out at the end, so that when you just enter

Page 4146

1 the building it doesn't go straight forward but it has a

2 turning to the left. This flat area is only about 3 or

3 4 metres and then at the bottom of this building was a

4 large metal gate with a ventilator, and on the ceiling I

5 think there were two neon lights. There are no other

6 openings except an opening of about 50 by 40 on both

7 sides of the door. Rough concrete was on the floor and

8 that's it.

9 Q. Can you describe where you slept, where you went to the

10 bathroom, just the living conditions that you had while

11 you were in the building Number 9?

12 A. At first while we were not so numerous and there was

13 just my group there was sufficient space for us at least

14 to be able to sit down decently. We could lean against

15 the wall. But with time I think at one point there

16 were 45 of us there. They were transferred to this

17 building. I don't know where they came from, so that

18 it was very cramped. There was very little space for

19 45 people. We had to leave some space next to the

20 door, about 2 metres, because that was the order from

21 the prison authorities, and we had to manage with the

22 rest of the space. We would lie cross ways on the

23 slope so we were not lying down in the direction of the

24 slope, but cross ways, and at night if we did sleep, we

25 had to lie on the side, all of us on one side, so as to

Page 4147

1 have enough room for all of us. When somebody couldn't

2 bear it any longer, then we would all have to wake up

3 and turn round to the other side. Therefore, the

4 sleeping conditions were terrible. All the clothing we

5 had was what we had on us. They would put a shoe --

6 people would put a shoe under their heads. We didn't

7 have any blankets at first or anything else.

8 Q. Can you describe the toilet facilities and the kind of

9 food you had, food and water, while you were in the

10 tunnel?

11 A. I don't know whether you can call it food and water, but

12 I'll try to explain. At the bottom of this tunnel,

13 where it was flat, there was a metal can, a container,

14 which was about 15 litres -- it could contain 15 litres,

15 and we had to use it as -- for our toilet needs. After

16 some time precisely above our heads at ground level

17 several prisoners dug out a hole maybe the size of a

18 table which we could use when we were allowed to go out

19 by the guards. In the meantime, when the guards

20 couldn't or were not around to let us out, we had to do

21 what we needed to do inside. The food was mostly three

22 loaves of bread for 45 of us. At least I was the one

23 to carry the bread from the administrative building and

24 later it was Zaro Mrkajic who did it.

25 Q. About how long approximately a period of time was it

Page 4148

1 that you were responsible for bringing the bread from

2 the administration building to the tunnel?

3 A. I think it was for the first fortnight or so.

4 Q. Besides when you were taken out to either use the toilet

5 facilities or when you were allowed out to get the

6 bread, were there other times when you were taken out of

7 the tunnel and, if so, where were you brought?

8 A. I personally was mostly not taken anywhere except to

9 fetch the food. I would regularly be beaten either by

10 some of the soldiers in front of the administration

11 building or the guard himself, depending on who it was,

12 but these were minor slaps or a kick at first or with a

13 fist, but they were not real beatings that affected my

14 health.

15 Q. Okay. Sir, when you were in the tunnel, was the door

16 kept open or closed?

17 A. The door was mostly closed, if the guards were not in

18 front of the door, or if there was no interrogation

19 going on or any beatings. So the door was mostly

20 closed. Especially at night there were wooden poles

21 that supported the doors and leaning on the steps to

22 keep the doors closed.

23 Q. Sir, other than what's happened -- what happened to you

24 when you were first brought to the camp, that you

25 already described, and the slaps or kicks or being hit

Page 4149

1 with a fist that you also have described, were you ever

2 seriously mistreated while you were at the camp, what

3 you call, I believe, a real beating? (Pause) Is the

4 answer yes?

5 A. Yes.

6 Q. Can you please -- I want to try to go chronologically.

7 So if you can please describe the first instance you

8 remember of this treatment, and I ask that you speak

9 slowly?

10 A. The first time that I was beaten was, I think, on the

11 third day, because for the first two days we didn't go

12 out, nor did anyone come to see us, as far as I can

13 remember, and when I went to fetch the food I met a

14 young man who knew me very well. I knew him too, but

15 I can't recall his name. We must have met somewhere.

16 The guard was taking me by the scales that were used to

17 weigh freight in the direction of the administration

18 building to get the bread, and he approached me with a

19 smile on his face, as if he was a friend, but when he

20 got to 1 metre from me, he suddenly changed the

21 expression on his face and kicked me in the area of my

22 crotch, and I lost consciousness for a moment. When I

23 came to he was standing above me and he said -- I must

24 apologise to your Honours for the rudeness, if I may be

25 allowed to use the expressions he used.

Page 4150

1 Q. Yes, you may state exactly what was said to you.

2 A. He said roughly that I have very hard balls and that we

3 Cetniks are known for this and he kicked me again in the

4 back and then he went off. The guard ordered me to get

5 up but I couldn't get up from the pain. I lay there

6 for about 40 minutes. The guard was kicking me.

7 I can't remember who he was at the time, because I

8 really couldn't believe that all this was happening to

9 me. So I was lost. I was -- I couldn't fully

10 comprehend that this was happening and the guard

11 threatened to kill me if I didn't get up. So I almost

12 crawled to the administration building. I somehow

13 managed to get up, pick up the loaves of bread and

14 return to the tunnel.

15 Q. Sir, was that the only time that you were the victim of

16 serious mistreatment, and, if not, could you please tell

17 us the next incident that you remember?

18 A. Mostly at first at the very beginning I was not

19 maltreated, but every time we went to use the toilet

20 facilities upstairs, the hole I was talking about, we

21 were lined up against the wall near building Number 9,

22 five to six, to you ten people of us, and we would be

23 hit sometimes once, sometimes twice with a baseball bat

24 or with a rifle butt or kicked in the back, things like

25 that, and this was -- these beatings were almost regular

Page 4151

1 for all of us.

2 Q. Was there any time where the beating was more severe

3 than what you've just described?

4 A. Yes. On one occasion I remember that it was still

5 sunny, so we were allowed a little earlier than usual to

6 use the toilet and I was the first in a group of five or

7 six men. I happened to be the first, though I was

8 lying in the middle of the Tunnel Number 9. Hazim was

9 there present when we came out.

10 Q. Do you know the full name of Hazim?

11 A. Hazim Delic.

12 Q. Please continue with your account?

13 A. When I came out, when I was climbing the steps, I saw

14 across the path on the fence there were two of my

15 neighbours sitting there, who used to be my friends.

16 One was called Alija Balic and the other Emin Spiljak.

17 They were sitting there and with them was Hazim Delic.

18 I saw that at that moment Hazim Delic was holding

19 something like a baseball bat in his hand. He ordered

20 us to stand along the wall, to raise up our hands and at

21 that moment I heard one of the two of them say that --

22 he said: "Hit the first one very hard, because he is my

23 neighbour". I didn't see that, because I was facing the

24 wall. I suddenly felt a terrible pain in my right

25 side. I almost bent over to the right although that is

Page 4152

1 difficult to do, and I was thrown about 1.5-2 metres to

2 the left. I didn't fall. Hazim was behind me and he

3 told me to go and piss. Then I headed towards the

4 hole. Fortunately it was not far away. He hit the

5 other four or five of us that came behind me and all of

6 us came to the hole. When we had finished he ordered

7 us to go back to camp Number 9. From that blow I think

8 up to 1995 I had a swelling here on the right-hand side

9 and later on I was examined by Dr. Mrdzic, but there was

10 no treatment given to me in the camp.

11 Q. Do you know who it was who hit you?

12 A. That was Hazim Delic.

13 Q. While you were in Tunnel 9 or during the time you were

14 staying in Tunnel 9, were there any other incidents

15 where you were severely mistreated?

16 A. Yes. Beside this systematic beatings I need to say also

17 that there were individual ones. People were taken

18 out, mostly at night. A lot of prisoners. There is

19 Damjan Dordic, Rajko Dordic and most of the prisoners.

20 I cannot say all of them by names, but they were taken

21 out, beaten and brought back in.

22 Q. Sir, with respect at this time to you in particular, was

23 there any other time other than you have described in

24 Tunnel 9 when you were taken out and mistreated or

25 mistreated while you were in the tunnel?

Page 4153

1 A. As I said, personally I was once taken at night by a

2 prison guard, and I will tell a story that came

3 before. That there was during the day and Pavo Mucic

4 was present, we were taken out to go to the toilet up

5 above, and Pavo Mucic was standing at the fence and Zaro

6 Mrkajic was there at all. Pavo Mucic said "who is this

7 last one" and he heard Zaro tell my name. He told my

8 name. However, nothing happened. They took me back

9 and when it became dark the guard called out my name and

10 told me to follow him. This was about 9.00, 9.30. I

11 don't know exactly when it was. It was getting dark in

12 those days. He took me, I think it was the same office

13 where I'd given that statement. A guard was sitting

14 there. We called him Focak. I don't know his exact

15 name. I forgot it. I was sitting there. He was

16 very correct. He even gave me a cigarette. He asked

17 me various questions. He asked me what happened to my

18 personal weapons. I told him I didn't have it. He

19 said where did I give it away. He talked about a

20 brother who was in prison. He was the same age. He

21 was insisting on me giving him some pistol, some pistol

22 which was very old. I told him that I did not have

23 that pistol, that I never had one. He said: "Okay. Go

24 now", but if I did not remember it until the next

25 evening where this pistol was, they would call me again,

Page 4154

1 and that would not be good. Then I said: "You don't

2 need to call me. I really don't know". He said: "No,

3 no, just go and remember" in front of the building there

4 were about seven or eight guards. He told me to follow

5 them to Number 9. However, in this darkness and the

6 light was very dim I was nearly blind at that time.

7 I had not been exposed to enough light in that period.

8 So I was walking along this white line. It is

9 phosphorescent, so there is a little glow. I was

10 following that. They were laughing at that. That way

11 we came to Number 9. Then they told me to stand

12 against a wall and raise my arms. I did so and they

13 started beating me. I started moaning. Then I heard

14 Focak's voice as they were kicking and hitting me with

15 rifle butts. I don't know about other objects. I did

16 not see so well. Then I heard the voice of this Focak

17 saying something like this and I quote: "What are you

18 waiting here for? Let me hit him" then he hit me with

19 something against the back. I felt as if I had been

20 thrown. I fell on the threshold, the threshold to that

21 door and after that I don't recall anything. I woke up

22 and I had a bandage and my head was lacerated at the

23 back. I still have a bump on my head as a result of

24 this. This is one of the instances.

25 Q. Sir, can you estimate, if you can, approximately when

Page 4155

1 this was that this happened, what month or about how

2 long you had been at the camp approximately?

3 A. I think it was some time in late June or early July.

4 Q. Okay. You have indicated, sir, that earlier before

5 this beating, earlier that day you had seen Mr. Mucic and

6 he'd asked who you were. Was that the first time you'd

7 seen Mr. Mucic at the camp, or were there times before

8 that?

9 A. I apologise. I think you may have misunderstood me or

10 maybe I misstated it. He didn't ask me. He asked

11 Zaro Mrkajic what my name was.

12 Q. Yes, sir. I think maybe there was a translation

13 error. I believe that's exactly what you said and what

14 I understood. Was this the first time that you had

15 seen Mr. Mucic or had you seen him on other occasions?

16 A. I must say that I did not know Mr. Mucic personally. I

17 did not know how this person looked, but there were

18 other people who knew him, like Zaro Mrkajic and other

19 people, who knew him. I don't know in what way. They

20 knew the car that he was driving and through them I

21 found out that he was the camp commander.

22 Q. Okay. Let me go back just for a minute. The person

23 that you came to know as Mr. Pavo Mucic, the day of your

24 beating, was that the first time you had seen Mr. Mucic

25 in the camp or had there been any other occasions prior

Page 4156

1 to that, before that, when you had seen him?

2 A. Yes, I had seen him before, that is for sure, but I had

3 not had any direct contact with him.

4 Q. Can you indicate for me approximately how many times you

5 saw Mr. Mucic in the camp during the entire time you were

6 there?

7 A. Personally I saw him at least about 20 times, maybe even

8 more.

9 Q. Did Mr. Mucic ever come to the tunnel?

10 A. Yes. He never walked in, but he came to the door.

11 Q. Okay. What would he do when he came to the door? For

12 what purpose did he come to the tunnel, if you know?

13 A. For the most part he did not contact with myself or with

14 us in general, so he was probably there to see us. I

15 don't know why but he was there.

16 Q. Did he ever talk -- even if he didn't talk to you, did

17 he ever talk or take out any prisoners?

18 A. Yes. Mostly he and Hazim Delic would talk to Zaro

19 Mrkajic and when there was that last selection, the last

20 transfer of people from 9 to Number 6, Pavo was there.

21 He was present and he asked that everybody come out of

22 this cell so that he could take a look at him. He and

23 Hazim decided who would stay in Number 6 and who would

24 go to Number 9.

25 Q. Approximately when was this, the incident where Mr. Mucic

Page 4157

1 and Mr. Delic decided who would stay in 6 and who would

2 go to 9?

3 A. You made a mistake again or it may have been a mistake

4 in interpretation. At least this is how I got it, who

5 was going to stay in Number 9 and who was going to 6,

6 but I think this was after the visit of the ICRC. So

7 that would be some time in August, late August.

8 Q. Okay. Sir, you indicated that Mr. -- you learned that

9 Mr. Mucic was commander of the camp. Can you indicate

10 exactly, if you can, when you learned that and how?

11 A. As I said, he made contact with people that he knew,

12 probably -- I don't know for what reasons he chose

13 them. It was through Zaro and we mostly found this

14 through Zaro and through guards who were there. So

15 mostly when he would come to the camp there had to be

16 some kind of a military discipline. At least at that

17 time nobody came in to beat us or to mistreat us. For

18 instance, I heard from Esad Macic, who was a guard in

19 the camp, he would tell us to hurry up, if we had been

20 in the toilet to hurry up and walk in there, because the

21 Commander was coming in this car of his -- I think it

22 was a Toyota. We could see the gate directly and we

23 could see it coming in.

24 Q. Do you remember approximately what month or how long you

25 had been in the camp the first time this happened, when

Page 4158

1 you were told that Mr. Mucic was commander of the camp?

2 A. I don't know but I think it was still in July.

3 Q. Sir, was there ever a time when you were staying in

4 Tunnel 9 that you were taken out of Tunnel 9 and then

5 put somewhere else for some period of time?

6 A. Yes.

7 Q. Can you please tell us about that?

8 A. Yes. On one occasion a group was selected. It was

9 about half of us. I don't know exactly the number, but

10 about half. We stepped outside and we were led in the

11 direction opposite of the gate, so that means away from

12 the gate towards the far end of the camp with our hands

13 behind. One hand had to be behind our back and the

14 other one on the shoulder of the inmate in front of

15 us. There were a lot of guards there. There was

16 Delic and Zenga and all the other guards who were there,

17 and I had the impression that they were taking us --

18 leading us quite a way, 300 or 400 metres. Given the

19 state we were in, the condition we were in, it was a

20 long distance for us. So we were brought -- I don't

21 know how to call this, but it's a structure. Later I

22 saw that it was a manhole, and this is where we were

23 beaten, and we were pushed in there through some small

24 metal door that was on top of this manhole. This

25 manhole was made -- rises a little bit above the ground.

Page 4159

1 There are several steps and then from there you go

2 down. I don't know exactly what its use was but I know

3 that inside there was a lot of -- some pipes and some

4 fans.

5 Q. Sir, can I ask you, if you could, if you know, could you

6 point out on the model the approximate area or where

7 this was that you were taken, if you know?

8 A. (Indicating) Here. We were taken out of Number 9 and

9 we went along this road. As I said, it looked a very

10 long distance to me, because I was very exhausted.

11 They brought us to this concrete wall. We climbed up

12 there and this manhole was right there, here somewhere,

13 in this area on the model.

14 Q. Okay. Thank you. What happened after you were placed

15 inside the manhole?

16 A. We were pretty much all beaten with some handles. I

17 think they were handles for some agricultural tools.

18 Then the lid was closed and there was some rubber ring

19 around it, so that it was hermetically sealed. There

20 were two pipes. One was -- like air ducts, which were

21 made, I guess, for ventilation. Those two were also

22 closed so there was no air there. We spent about three

23 or four hours there. Then they opened up the manhole

24 and they called out Rajko Vujcic to get the food for

25 us. I think they brought one or two breads and two or

Page 4160

1 three liver pates. As they had taken him by the hands

2 because he had climbed all the way up to that top

3 platform and then they beat him with this handle. We

4 were already without air for a long time. When they

5 had enough of beating him, they threw the bread and the

6 liver pate down. Then the manhole was reopened again

7 only the following day some time in the morning. I

8 don't know how late it was, but I know that night had

9 passed, because I overheard the conversation by the

10 guards, because they said that they had really secured

11 this structure, that we would stand no chance, that they

12 could just withdraw during the night. It was very hot

13 inside. There was no air from any side. I still

14 don't believe to this day that we survived it. That's

15 how long it was that so many people stayed in this

16 space, because the measurements were 2 by 2 and maybe

17 2.5 to 3 metres high.

18 Anyway, I was already half delirious and I only

19 remember at one point some light appeared from above and

20 I had some air, but I sort of fainted because I think

21 maybe it was because of this rush of fresh air. Then

22 the order came to get out and then the beatings

23 resumed. They lined us up against this concrete wall,

24 which is up from this manhole, and I overheard the

25 guards during the night. They were saying how we were

Page 4161

1 going to be executed with all the usual swear words that

2 accompanied this. Then ten of us were lined up against

3 this wall. At the step of this manhole I saw Hazim

4 Delic and Pavo Mucic standing next to this manhole, and

5 again I was not fully aware, because of this lack of

6 oxygen. With them, next to them, were Rajko Dordic,

7 Desimir Mrkajic and Rajko Mrkajic who was there. I

8 overheard the conversation. It was mostly by Pavo

9 saying that we were to be executed. We were standing

10 against a wall. There were a lot of soldiers there and

11 there were these in placements (sic). Somebody showed

12 up in a car -- I think it was a Golf, a red colour --

13 and just from the window said it had to be put off. I

14 don't know if he was referring to our execution or what

15 else, but then they -- then they returned us to Number 9

16 with the usual beating accompanying it.

17 Q. Can you describe the next incident chronologically where

18 you were mistreated?

19 A. In Number 9 except for the beatings during the time when

20 we would go out to the toilet -- I'm talking about

21 myself, but I have witnessed other beatings. I don't

22 know if that is important to mention.

23 Q. For now I just would like to discuss yours. The

24 incident that you describe where you were put in the

25 manhole, can you give us an approximate date, month or

Page 4162

1 about how long you'd been in the camp when that incident

2 occurred?

3 A. I think this was already late July.

4 Q. Okay. Sir, previously you indicated that when you were

5 hit in the ribs by Mr. Delic with a bat or something that

6 looked like a bat. Can you just describe what this

7 instruments was like and if you had ever seen it -- if

8 you ever saw it on any other occasions?

9 A. Yes. This was most probably an original baseball bat, a

10 bat used for a game of baseball. It was kind of

11 yellowish. At first I thought it was brass, but later,

12 when I received this blow, I think it was wooden.

13 Q. On the other occasions when you saw this bat, who would

14 have it?

15 A. Who had it? Mostly Hazim Delic, and when he wasn't

16 around, this Focak had it. It was as necessary.

17 Q. Okay. During the time that you were in Tunnel 9 did

18 you ever receive any sort of mistreatment, severe or not

19 severe, by this person you referred to as Landzo?

20 MS. McMURREY: I am going to object, your Honour. She is

21 leading the witness. He never said he was

22 mistreated. I am sorry, I got the French

23 interpretation just there. He never said he was beaten

24 by Landzo. She is leading the witness.

25 MS. McHENRY: I did not suggest he had said it. I just

Page 4163

1 asked. He had mentioned Landzo and I asked if this had

2 ever happened.

3 MS. McMURREY: Well, that is a leading question, your

4 Honour.

5 MS. McHENRY: What, if any, sir, activity did you see this

6 person Landzo engage in while you were in Tunnel 9?

7 A. Well, he was rarely on a guard post in front of Number

8 9. For the most part he was not. For the most part

9 he would come either with Hazim or by himself, and one

10 day when Slovko Susic was brought in -- that's how I

11 noticed Landzo the best -- Hazim was beating him and

12 there were some other guards there as well.

13 MS. McMURREY: I am going to object. I believe he has not

14 said he saw this beating or something like, that the

15 foundation has not been laid on whether he had personal

16 knowledge of what he was talking about at this point.

17 JUDGE KARIBI WHYTE: I think we will have to.

18 THE INTERPRETER: Microphone, please.

19 JUDGE KARIBI WHYTE: We will have to stop and continue next

20 time.

21 MS. McHENRY: Okay. You worked very hard for the day.

22 You are getting tired.

23 MS. McHENRY: That is certainly true, your Honour.

24 MS. RESIDOVIC (in interpretation): Your Honours your

25 Honour, I would like to request that the Prosecutor

Page 4164

1 gives us the names of the next witnesses, because

2 following this witness we only know the name of another

3 witness. This is absolutely insufficient for the

4 preparation of the defence. Also if the Prosecutor

5 could tell us the names of the witnesses -- of those

6 witnesses for whom they think that most probably will

7 not be testifying. Since there was a list of 35

8 witnesses for which the Defence is preparing, I think

9 that it is necessary for us to get the names of the

10 witnesses who have given up to testify with a

11 possibility obviously that, should these witnesses

12 change their mind again, the Prosecution could give us a

13 list of those witnesses as well. Thank you.

14 JUDGE KARIBI WHYTE: The Prosecution was complaining of

15 some difficulties in their ability to ascertain who or

16 who is not to get into their witness list. I'm not

17 sure that difficulty is over, but I'm sure they will

18 communicate whoever is their next witness. They are

19 not holding them. It is not for their own personal

20 profit. I am sure they will give you the names. Even

21 if the Trial Chamber says they should give you, it

22 depends on their ability to know who to tell you are the

23 witnesses.

24 MS. McHENRY: Your Honour, just with respect to the court's

25 schedule, if I could have one minute to consult with

Page 4165

1 lead counsel, he has given me a note which, in fact, has

2 to do with the upcoming witnesses. So if you could

3 just give me a few seconds.

4 MR. ACKERMAN: While she is doing that, your Honours, I

5 wonder if -- I had some indication that the question of

6 what days we are sitting next week might still be an

7 open issue.

8 JUDGE KARIBI WHYTE: I know we are sitting on Monday. At

9 least I know that.

10 MR. ACKERMAN: Then so do we. There is a possibility we

11 will be sitting other days next week.

12 JUDGE KARIBI WHYTE: My timetable doesn't disclose that.

13 MR. ACKERMAN: I have just a kind of a final closing

14 observation. I believe, your Honour, that I have made

15 it through an entire week without insulting anyone. If

16 that's not true, I now apologise.

17 MR. OSTBERG: My question or answer, or whatever, pertains

18 to this question that your Honour just answered to

19 Mr. Ackerman, whether we sit more than Monday next

20 week. I have an urgent question from the Victims and

21 Witness Unit to go on or not to go on scheduling for

22 other days in next week. Do we have any indication

23 whether there will be more than Monday next week?

24 JUDGE KARIBI WHYTE: As far as I am concerned, I have not

25 made any other arrangement other than what we decided at

Page 4166

1 the status conference. I know the Tadic Trial Chamber

2 is not sitting next week, but we haven't decided either

3 to sit. So we still retain our earlier decision to sit

4 on Monday.

5 MR. OSTBERG: That's the only day we sit next week?


7 MR. OSTBERG: Thank you very much, your Honour.

8 JUDGE KARIBI WHYTE: So the Trial Chamber will now rise

9 until Monday morning.

10 (Hearing adjourned until 10.00 on Monday morning)

11 --ooOoo--