1 Monday, 29 January 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE AGIUS: Good morning to you, Madam Registrar.
6 THE REGISTRAR: Good morning, Your Honours. This is the case
7 number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
8 JUDGE AGIUS: So, good morning, everybody. I see that all the
9 accused are here. Mr. Haynes is not here Ms. Condon is not here.
10 Otherwise we are a full house. Mr. McCloskey is behind the column;
11 Mr. Nicholls is ready for action.
12 I understand you have some preliminaries to raise and discuss.
13 Yes, Mr. Bourgon.
14 MR. BOURGON: Good morning, Mr. President, good morning, Your
15 Honours. I have three issues I would like to raise this morning before
16 this witness appears. The first one is not related to the witness but
17 just in case we go right up to the end I would like to raise it at this
18 time, this way we don't have to end early because we have no idea how long
19 this witness will last.
20 This issue has to deal with the -- a motion which was filed by the
21 Defence of Drago Nikolic and that was a Defence request for review of the
22 Registrar's decision and that was filed in December of last year. Now,
23 the Registrar responded and filed a registry submission on the 22nd of
24 January. Due to the contents of that submission we would like to file
25 also some observations on the Registry submission. So we'd just like to
1 ask permission because we feel that what the Registrar has done is not
2 rules per se so we figure the best would be to ask your permission and
3 we'll do this by the end of this week.
4 JUDGE AGIUS: How long do you anticipate your reply to be?
5 MR. BOURGON: Not very long. Not very long. Nothing more than
6 the normal motion.
7 JUDGE AGIUS: All right. Okay.
8 [Trial Chamber confers].
9 JUDGE AGIUS: Okay. Permission granted. The other preliminary.
10 The possible such matters can be dealt with without making use of Court
11 time, if you -- there are many ways and means of doing this exercise
12 otherwise. Yeah, Mr. Bourgon.
13 MR. BOURGON: Thank you, Mr. President. The next issue concerns
14 the next two witnesses that we will hear. There's been a change of course
15 in the witness schedule. I believe the Trial Chamber is aware that the
16 next two witnesses are witnesses we will testify with the -- under
17 protective measures and maybe I should move into closed session to discuss
18 my next topic.
19 JUDGE AGIUS: Let's go to private session, please.
20 [Private session]
11 Pages 6431-6432 redacted. Private session
16 [Open session]
17 THE REGISTRAR: We are in open session.
18 JUDGE AGIUS: One question, Mr. Nicholls. In your briefing of
19 this witness, did you yourself, or whoever interrogated him, interviewed
20 him, explain to him his rights under Rule 90 (E) or not.
21 MR. NICHOLLS: Yes, briefly, Your Honour, and I told him it was
22 likely --
23 JUDGE AGIUS: So he's aware. In other words, I'm asking you so
24 that we don't waste much time in explaining --
25 MR. NICHOLLS: Yes.
1 JUDGE AGIUS: Thank you.
2 Mr. Nikolic, any time you need to walk out and have a short rest,
3 please let us know.
4 [The witness entered court]
5 WITNESS: WITNESS PW-142
6 [Witness answered through interpreter]
7 JUDGE AGIUS: Good morning, to you sir.
8 THE WITNESS: [Interpretation] Good morning.
9 JUDGE AGIUS: Welcome to this Tribunal. You are about to start
10 giving evidence as a Prosecution witness. Our rules require that before
11 you start testifying you make a solemn declaration that you will be
12 testifying the truth. The text of the solemn declaration is being handed
13 to you now. Please read it out aloud, and that will be your undertaking
14 that you will be speaking the truth.
15 THE WITNESS: [Interpretation] I solemnly declare that I will speak
16 the truth, the whole truth, and nothing but the truth.
17 JUDGE AGIUS: I thank you. Please take a seat and make yourself
18 comfortable. Now, the Prosecution has asked us to put in place some
19 protective measures to hide your identity, protect your identity. We have
20 must these protective measures in place. Basically these are face and
21 voice distortion. People outside will not be able to see your face or to
22 hear your voice. Are you satisfied with this arrangement?
23 THE WITNESS: [Interpretation] Yes.
24 JUDGE AGIUS: And before you start giving evidence we have been
25 discussing here, particularly considering your occupation at the time of
1 the conflict in 1995, to draw your attention to a particular disposition
2 of our law, which gives you the right to object to making any statement or
3 answering any question which you've answered truthfully might tend to
4 incriminate you. If you do not make such a request, then you are bound to
5 answer the question. But if you make such a request, then it's up to us
6 to decide whether to grant you your request and exempt you from answering
7 such questions or whether to compel you to answer the question. In other
8 words, the Trial Chamber has the discretion, the right to tell you,
9 notwithstanding your request, we still want you to answer this question.
10 However, therefore legal consequences which go to your benefit if
11 you are compelled to answer such questions by the Trial Chamber. In such
12 a case if you have compelled to answer such questions your testimony or
13 that part of the testimony shall not be used as evidence in any subsequent
14 Prosecution against you for any offence or further from any offence,
15 unless of course the conclusion is that you have given false testimony.
16 In that case, your answer would be taken into consideration, but only if
17 you are charged with perjury, with false testimony. Otherwise, any answer
18 you may give because you are compelled by the Trial Chamber to give, may
19 not be made use of in your regard in any subsequent proceedings,
20 prosecution against you. Is that clear?
21 THE WITNESS: [Interpretation] Yes.
22 JUDGE AGIUS: So I think, having said that, I leave you in the
23 very capable hands of Mr. Nicholls. He will then be followed by
25 Mr. Nicholls.
1 MR. NICHOLLS: Thank you, Your Honours. If I could have the
2 assistance of the usher.
3 Examination by Mr. Nicholls:
4 Q. Now, sir, I'm handing you a sheet of paper and I want you to read
5 it silently to yourself; do not read it out loud. And the question I have
6 for you is does your name appear on that sheet of paper, which will be
7 P02404 under seal?
8 A. Yes.
9 Q. If that could be shown to my colleagues.
10 Sir, I have a few questions for you this morning and could we
11 begin in private session, please.
12 JUDGE AGIUS: Let's go into private session. And may I remind you
13 to switch off your microphones when the witness is ...
14 [Private session]
11 Pages 6437-6440 redacted. Private session
14 [Open session]
15 JUDGE AGIUS: We are in open session, Mr. Nicholls.
16 MR. NICHOLLS:
17 Q. Now, witness, I'm going to ask you some questions about what
18 happened and what you remember after the fall of Srebrenica in July 1995.
19 First of all, do you recall the date when Srebrenica fell?
20 A. I don't remember the exact date. It was mid-July.
21 Q. Now, after that date were you ever ordered to guard Muslim
23 A. Yes. We were ordered (redacted)
24 Q. Were you ever sent to do that duty in Orahovac?
25 A. Yes.
1 JUDGE AGIUS: Just one moment.
2 Mr. Bourgon.
3 MR. BOURGON: Thank you, Mr. President. I would appreciate if --
4 JUDGE AGIUS: One moment.
5 [Trial Chamber confers]
6 JUDGE AGIUS: Pardon me, Mr. Bourgon. Let's go into private
8 [Private session]
11 Pages 6443-6444 redacted. Private session
21 [Open session]
22 JUDGE AGIUS: We are in open session, Mr. Nicholls.
23 MR. NICHOLLS: Could I please show the witness on e-court 1690.
24 Q. All right. Sir, there should be a photograph appearing on the
25 screen in front of you now. It's got ERN number 0040-9643 along the top
1 right. Can you just take a look at that photograph for a minute and tell
2 me if you recognise the place in the photograph?
3 A. Yes, this is the place.
4 Q. Just for the record, which place?
5 A. The elementary school in Orahovac.
6 Q. Thank you. I'm done with that.
7 Now, before you were sent to the elementary -- before you went to
8 the elementary school in Orahovac? Did you know that was your
9 destination? Did you know that's where you were going?
10 A. No.
11 Q. If you can describe what appeared to be happening at -- at the
12 school in Orahovac when you arrived there?
13 A. When we arrived there our commander explained to us that prisoners
14 would be coming that we needed to prepare the entrance gate, there was a
15 gym there, and that's what we did. There was some wire there, it had
16 already existed there, so it was used to delineate the area for them.
17 And then after sometime, I don't know exactly how much time
18 elapsed, civilian buses started arriving. Escorted by civilian police in
19 blue uniforms, prisoners started coming off the bus and we escorted them
20 into the gym.
21 MR. NICHOLLS: Can we go into private session for one question?
22 JUDGE AGIUS: Let's go into private session.
23 [Private session]
8 [Open session]
9 JUDGE AGIUS: We are in open session, Mr. Nicholls.
10 MR. NICHOLLS:
11 Q. You said that the wire was used to delineate the area for them,
12 for the prisoners. Can you describe a little bit more what the function
13 of this wire was, what was there for?
14 A. The wire was there to create a passage for them, a corridor.
15 Since this was a school, there was already a wire there in place, some
16 five to six metres high, because there was a school playground. And I
17 guess the wire was there in order to prevent the children from breaking a
18 window when they played with a ball. And then we used this wire for our
20 Q. Now, when you arrived at the school, were there any VRS soldiers
21 already present?
22 JUDGE AGIUS: Yes, Mr. Bourgon?
23 MR. BOURGON: Leading question, Mr. President. He could ask was
24 anybody there, but to ask whether there were VRS soldiers there is a
25 leading question, Mr. President.
1 JUDGE AGIUS: At the end of the day that's where we're going to
2 get, Mr. Bourgon. I appreciate objecting to leading questions where they
3 are of significant -- the objection is of significance, but not in this
4 case, I suppose.
5 Go ahead.
6 MR. NICHOLLS:
7 Q. You can the answer the question, sir, please.
8 A. A couple of soldiers of some sort, but we were there, military
9 policemen, to secure the area, and there was already -- there were some
10 people there who had already gathered out of curiosity.
11 Q. Okay. Can you describe what you mean by the people who had
12 gathered there out of curiosity and -- and the -- describe the soldiers
13 that you say were there?
14 A. Well, at the time everybody wore military uniforms, so the houses
15 where people lived were close by as well and people could see that
16 something was going on and then their number grew to the size of a crowd
17 once the buses started arriving.
18 Q. And were you able to tell which units any of these other soldiers
19 present belonged to, if you can recall?
20 A. There were both local residents there and people moving through in
21 transit, because this was the road leading to defence lines in Kitovica
22 [phoen] and other places.
23 Q. Thank you. My question was were other soldiers at the school, and
24 you said there were a couple of some sort. Were you able to tell -- if
25 you were, which military units they belonged to?
1 A. Well, I recognised a couple of people. They were drivers in the
2 Zvornik Brigade. I used to see them frequently because they had been
3 stationed in that barracks for quite a long time.
4 Q. Now, without -- you talked about the buses. How long -- if you
5 remember, how long after you got there did the buses start arriving?
6 A. Well, soon thereafter; half an hour, an hour, they started
7 arriving after that time.
8 Q. Do you remember the names of any of the bus companies, if there
9 were any names on the buses?
10 A. A couple of names; Drinatrans, Vihor, Milici. Different buses.
11 Q. And approximately how many buses arrived at the school?
12 A. A dozen or more, I think. I didn't count.
13 Q. Was there any escort provided for these buses?
14 A. Yes. A policeman wearing blue uniforms, civilian police.
15 Q. And what happened after these buses started arriving? What
16 happened next?
17 A. They went through the corridor that we had prepared for them and
18 started entering the gym. We started taking them inside.
19 MR. MEEK: Judge, I object to that question. Non-responsive.
20 Unless the bus where is taken inside the school. The questionable is
21 non-responsive and I object.
22 JUDGE AGIUS: Well let's put a second question to clarify exactly
23 what went into the school or went into the gym or not.
24 MR. NICHOLLS: I was going to do that and I think it's pretty
25 hyper-technical objection.
1 Q. When you say, "They went through the corridor that we had prepared
2 for them and started entering the gym" who is the "they" that you are
3 referring to? Who went to the gym?
4 A. Prisoners from buses.
5 Q. Best you recall, how were these prisoners dressed?
6 A. Different kinds of clothing. Pretty poor and shabby clothing, if
7 I can say so.
8 Q. And how full was the gym once all of the prisoners had entered it?
10 A. It was full. We left an area the size of two to four metres from
11 the entrance, we left that area vacant so that we could control them
12 better. The rest of the gym was completely full.
13 Q. Now, you talked about a crowd forming and coming from the houses,
14 different people. What were they doing, what was their attitude towards
15 the prisoners in the gym?
16 A. Hostile, aggressive. There was huge commotion, confusion there.
17 People milling about. There were only five or six of us military
18 policemen, and it was difficult to control the crowd. As I said, people
19 were mostly from the area, locals who had come there out of curiosity, and
20 then I also realised that there were people in transit who were on their
21 way to defence lines and stopped there to see what was going on.
22 Everybody wanted to go in to see them, to give some comments and so on.
23 Q. And without saying the name of the person --
24 A. Comments of -- along the lines, "All of them ought to be
1 Q. And without saying the name of the person who gave you orders,
2 what -- what were your specific duties at that time?
3 A. To secure the facility and provide security to prisoners to stop
4 the crowd from getting to the prisoners.
5 JUDGE AGIUS: He hasn't given an indication of how big or the size
6 of this crowd. Perhaps you can ask that question.
7 MR. NICHOLLS: Yes, Your Honour.
8 Q. You heard His Honour's query. Can you give us some idea of how
9 big this crowd of people were who you say were aggressive and hostile
10 towards the prisoners?
11 A. I never thought about that, but about 100 people or so, more or
13 Q. And were you successful in preventing the crowd from reaching or
14 in any way harming the prisoners?
15 A. Yes. With great difficulty, but yes.
16 Q. Now, in addition --
17 THE INTERPRETER: Microphone please, Mr. Nicholls.
18 MR. NICHOLLS:
19 Q. In addition to the commander who you say gave you orders, and I
20 won't say his name again, when you arrived at the school, can you tell
21 me if you saw any other officers from the Zvornik Brigade there that
23 A. May I give the name? Yes, I did. Drago Nikolic.
24 Q. And when did you see Drago Nikolic at the school in Orahovac that
25 day, approximately?
1 A. In the afternoon hours. Between 12.00 and 2.00 or 3.00 p.m. I
2 wouldn't be able to say, because we were quite busy. All of us military
3 policemen there were busy with the prisoners, escorting them. And I saw
4 him standing on the road separate from the crowd or the column passing
5 through, prisoners.
6 Q. What was he doing when he was standing on the road?
7 A. Talking. There were a lot of soldiers there, as I told you, on
8 their way someplace else, who stopped there. Us military policemen, or
9 rather I knew some of them by sight, and -- but I didn't know all of them,
10 and we just started talking among ourselves and based on their conduct we
11 concluded that these were senior officers and that he was talking to them
12 about something.
13 Q. Now, other than that occasion where you saw Drago Nikolic talking
14 to these senior officers, are there any other times during the day that
15 you saw Drago Nikolic at the school in Orahovac?
16 A. Maybe another two times.
17 Q. And what was he doing on those other two times?
18 A. The same. He didn't go in, nor did he approach us.
19 Q. Let me ask you some questions now about the prisoners at the
20 school. Did you observe any mistreatment or -- sorry. How were the
21 prisoners treated, as you recall?
22 A. We let them go fetch water. We were unable to provide proper or
23 good conditions, or if I can call it normal conditions, because this was
24 not a normal situation [Realtime transcript read in error, "this was a
25 normal situation"]. But they did go to fetch water. Nobody mistreated
2 Q. And best you can recall, how long did the prisoners stay?
3 I think my friend has a -- has a point.
4 MR. LAZAREVIC: Again, something in the transcript. Here we read
5 on page 24, line 18 says, "Because this was a normal situation," I think
6 it's completely different from what the witness said.
7 JUDGE AGIUS: So let me read your answer as we have it in the
8 transcript, witness. And then hoping that it will be translated into your
9 language as it is. Please give us your answer again. "We let
10 them go fetch water. We were unable to provide proper or good conditions
11 or if I can call it normal conditions, because this was a normal
12 situation. But they go d go to fetch water. Nobody mistreated them".
13 Did you ever say that this was a normal situation? Or did you say
14 exactly the opposite.
15 THE WITNESS: [Interpretation] No. The opposite.
16 JUDGE AGIUS: I think that's clear enough. Does it satisfy you,
17 Mr. Lazarevic? Okay. Thank you.
18 Mr. Nicholls.
19 MR. NICHOLLS: Thank you.
20 Q. I was starting to ask you, best you can remember how long did the
21 prisoners remain in the gym?
22 A. In the afternoon, sometime in the afternoon. They stayed a few
23 hours after they arrived they -- they were there for a few hours and we
24 were securing them.
25 Q. I want to ask you some questions now about how the prisoners came
1 to leave the school that day. Can you describe that, please, the process
2 of how the prisoners left the school?
3 A. A truck came. If I can say it like that, the exit from the gym
4 was somewhere in the middle. We were all of us at the entrance, and when
5 we were all inside I didn't even know that this exit existed until the
6 truck came into which they were loaded, boarded.
7 THE INTERPRETER: Microphone, please.
8 MR. NICHOLLS:
9 Q. Do you recall whether it was a military or civilian truck?
10 A. No.
11 Q. And can you describe the process of how the prisoners, as you say,
12 were loaded or boarded on to the truck?
13 A. The truck would park, it would come to the exit, there were three
14 or four of us military police officers at the entrance we felt people were
15 needed there. Two military police officers were there and maybe one or
16 two soldiers and the driver. It wasn't a very large group around that
17 truck. Four or five people and they were boarded on to the truck with
18 their hands tied. That's how they were loaded on to the truck.
19 Q. If you remember, who tied the hands of the prisoners when they
20 were loaded on to the trucks? And I don't mean the name of the person or
22 A. I really couldn't say. They were either members of the military
23 police or those people. I don't really know. I was looking over there at
24 the entrance, because the crowd would start getting agitated when they
25 started to bring them out, because they didn't know where they were taking
2 Q. What happened after the prisoners were loaded on to the truck?
3 A. It would drive out of the schoolyard and turn right. I know that
4 that was the direction of Tuzla and towards our line of defence.
5 Q. And then what happened? Continue telling about the process of how
6 the prisoners were removed from the school, please.
7 A. The truck would come back shortly afterwards, you could hear
8 shots, and then it would do the same thing again, it would come up to the
9 school, into the schoolyard, once again people were loaded in, driven
10 away, and this went on until the place was emptied, until it was almost
11 dark, until all the people were taken out.
12 Q. Can you describe the shots you heard? How many shots, how often
13 you heard the shooting, and which direction that you could hear those
14 shots coming from?
15 A. From the direction that they were taken you could hear the firing,
16 the bursts of fire.
17 Q. At any time during this process or cycle you've described, did
18 any -- did any people come and talk about what has happening down the road
19 in the direction the prisoners had been taken?
20 A. Yes. There was always a couple of people running after or next to
21 the truck, people in uniform, one or two military police officers and then
22 on one of the return trips I heard them saying that they had been killed,
24 Q. It's a bit of a silly question, but just to keep the record very
25 clear, who had been killed, executed? Who is the "they" there?
1 A. The prisoners who had been taken away in the truck.
2 Q. Now, did you personally ever go up to the road to where the shots
3 were coming from and from where you heard that the prisoners were being
4 killed? Did you go there?
5 A. No.
6 Q. The people in uniform or military police officers who came back
7 and said that the prisoners had been killed, were you able to tell which
8 unit they belonged to, if you were able to tell?
9 A. The military police officers were from the Zvornik Brigade, and
10 the rest of the soldiers were from that brigade, because I could see that
11 they knew the local population. But as I said, it was uncontrolled.
12 Anyone could come up to the column and come up behind the truck. It was
13 only the duty of the police to monitor that.
14 JUDGE AGIUS: Yes, Mr. Bourgon.
15 MR. BOURGON: Thank you, Mr. President. I would just like to
16 clarify, because I'm not sure, I'm not that fluent in B/C/S, but I'd like
17 to confirm whether he said police officers or police soldiers, to the best
18 of my ability, he said police soldiers.
19 JUDGE AGIUS: I do not have that much ability. So I will -- as
20 you have, Mr. Bourgon, so I will ask the witness to explain.
21 In answering Mr. Nicholls's question, Witness, according to the
22 transcript you said, "The military police officers were from the Zvornik
23 Brigade, and the rest of the soldiers were from that brigade." Is this a
24 correct translation of what you said or do you wish to correct it?
25 THE WITNESS: [Interpretation] Yes, yes, that is correct. But I
1 would like to correct myself. Perhaps it wasn't the duty of the military
2 police officers to go with the truck. I only saw them with the truck at
3 one time, but the rest were soldiers.
4 JUDGE AGIUS: Thank you. I think we can move ahead.
5 MR. NICHOLLS: Go into private session, briefly.
6 JUDGE AGIUS: Go into private session.
7 [Private session]
23 [Open session]
24 JUDGE AGIUS: We are in open session now.
25 MR. NICHOLLS:
1 Q. Sir, after all the prisoners had been taken from the school, what
2 happened with you next? What did you do, where did you go?
3 A. As I said, I don't remember precisely how long we remained there.
4 I don't know if I slept in the barracks overnight or if I stayed there
5 until late into the night. I really don't remember. I don't remember, or
6 perhaps I went home, I don't remember.
7 JUDGE KWON: Mr. Nicholls, before going further, if you could
8 clarify this. Earlier to your question, "Who tied the hands of the
9 prisoners when they were loaded on to the trucks," the witness answered
10 that, "They were either members of the military police or those people."
11 If you could clarify who "those people" were.
12 MR. NICHOLLS: Yes, Your Honour. And perhaps could we go into
13 private session just for this out of an abundance of caution.
14 JUDGE AGIUS: I agree with you. Let's go into private session.
15 [Private session]
22 [Open session]
23 JUDGE AGIUS: We are in open session.
24 MR. NICHOLLS:
25 Q. After the events you have described at the Orahovac school, what
1 was your next duty? What was the next task that you were ordered to
3 A. The following day we went to a school, it was also a school, in a
4 placed call Rocevic.
5 MR. NICHOLLS: Private session, please.
6 JUDGE AGIUS: Let's go into private session.
7 [Private session]
14 [Open session]
15 JUDGE AGIUS: We are in open session.
16 MR. NICHOLLS:
17 Q. Were you told, or did you know that you were going to the Rocevic
18 School when you left the barracks? Were you told that in advance that was
20 A. Yes. I was told that we were transferred, myself and a couple of
21 other policemen, to go to the school in Rocevic. (redacted) told us to go
23 MR. NICHOLLS: Request a redaction, please.
24 JUDGE AGIUS: Please, line 16 on page 32.
25 MR. NICHOLLS: Thank you.
1 JUDGE AGIUS: We will redact the name of the officer. And let's
2 proceed. If you need to go into private session, please, you only have to
3 ask, Mr. Nicholls, but I don't think it's the case of going into private
5 MR. NICHOLLS:
6 Q. Now, were you told what your duties would be at the Rocevic
8 A. Securing the facility and the same thing that we were doing the
9 day before at Orahovac.
10 Q. And what do you mean by that? Just the same thing you were doing
11 the day before at Orahovac, could you be more specific for the record? I
12 think it's clear, but we need to be very precise.
13 A. Specifically securing the facility and the prisoners.
14 Q. What time of day was it or what time was it, day or night, that
15 you left to go to the Rocevic School?
16 A. It was day. It was day; 10.00 or 11.00 perhaps.
17 Q. Can you please describe when you -- when you got to the school at
18 Rocevic, what did you see there, what was going on?
19 A. The prisoner were already in the school, in the gym also. I saw a
20 couple of bodies, dead bodies lying around. We were immediately assigned,
21 because there also people wanted to come, there were a lot of angry
22 people. Somebody had lost somebody in the war, and so it was, "Oh, let me
23 come in and kill someone." There were things being said like that.
24 Q. The bodies that you saw lying around the school, can you describe
25 those bodies, what kind of clothing you saw on those bodies and -- well,
1 that's it to start.
2 A. Civilian clothing. Somebody was perhaps wearing a camouflage
3 shirt or trousers, like that.
4 Q. And were you able to tell what the ethnicity of the -- of these
5 bodies were, whether they were Serbs or Muslims that were lying there?
6 A. Muslims, prisoners.
7 Q. And how do you conclude that? How could you tell that?
8 A. Well, you didn't need much time to reach that conclusion. I
9 simply knew. I saw who the people were, what they were, the bodies were
10 later taken into the truck and transported together with the live
11 prisoners who were later taken to the place of execution.
12 Q. Were you able to tell at all, or make an estimate of how many
13 prisoners there were in the Rocevic School when you were there?
14 A. It was a gym more or less of the same size as the one in Orahovac,
15 I'm not sure. I would just glance inside and I think that the number
16 was -- of people was the same as the number in the school in Orahovac.
17 Q. Were you able to tell which unit or units, soldiers guarding the
18 prisoners there, were from?
19 A. We were there, the military policemen, two or three of us,
20 military policemen and the rest were, I think, members of the Zvornik
21 Brigade. There were no people from the outside. And the local
22 population. It was hard to control it all.
23 Q. After you arrived, just speaking about after you arrived, were you
24 able to -- were you successful at keeping the crowd from harming the
1 A. Yes, we were. At least I think we were. But how can you say it?
2 A person would come with weapons, they would be drunk or sober, but in a
3 rage; I mean, it was difficult to deal with people like that.
4 Q. Can we go into private session, please?
5 JUDGE AGIUS: By all means. Let's go into private session,
7 [Private session]
19 [Open session]
20 JUDGE AGIUS: So upon the suggestion of Mr. Nicholls, we will have
21 a 25-minute break starting from now and then he will -- when we resume he
22 will conclude his direct. 25 minutes.
23 --- Recess taken at 10.26 a.m.
24 --- On resuming at 10.55 a.m.
25 JUDGE AGIUS: Yes, Mr. Nicholls. We are in open session and you
1 may proceed.
2 MR. NICHOLLS: Thank you, Your Honours.
3 Q. Sir, I'd like you to now describe how the prisoners came to leave
4 the Rocevic School. Can you discuss that process, what you saw?
5 A. They were boarded into a truck, the same way as in Orahovac.
6 Based on the stories I heard, they were taken to Kozluk where there was a
7 dump, and later on there were stories circulating, and it was an open
8 secret that this is where they executed them, shot them.
9 THE INTERPRETER: Microphone, please.
10 MR. NICHOLLS:
11 Q. How many trucks were there picking up the prisoners, if you
13 A. I don't know the exact number, but it wasn't a low number.
14 Q. And as best you can remember, once a truck -- once trucks left,
15 how long was it before new trucks came to pick up the prisoners? In
16 other words, you described the cycle at Orahovac, can you describe at
17 Rocevic, how long it took for each truckload of prisoners to be
18 transported away?
19 A. Here the destination was further away, the trip between Rocevic
20 and Kozluk was about a 20-minute trip. About 20 minutes, but to tell you
21 the truth, I didn't have a watch on me then, and at that time I simply
22 lost any sense of time or area, to tell you the truth.
23 Q. As far as you can recall, emptying the prisoners from the school
24 of Rocevic and taking them away, did it take the same amount of time as at
25 Rocevic or more or less? At Orahovac, excuse me.
1 A. Approximately, yes.
2 Q. Sorry, do you mean approximately the same amount of time?
3 A. The same amount of time, yes.
4 Q. And when was it that you left the school of Rocevic? Can you
5 describe that, how you came to leave the school?
6 A. It was near the evening when all of that was over, and when the
7 room where they had been was vacant. After that we were taken to the
9 Q. And did you notice when the trucks were leaving whether they were
10 accompanied by any escort?
11 A. I don't remember that.
12 MR. NICHOLLS: Can we go into private session for a second?
13 JUDGE AGIUS: Yes, let's go into private session, please.
14 [Private session]
11 Page 6466 redacted. Private session
2 [Open session]
3 JUDGE AGIUS: Yes. Mr. Zivanovic, who is appearing for accused
4 Popovic will be cross-examining you.
5 Mr. Zivanovic.
6 Cross-examination by Mr. Zivanovic:
7 Q. [Interpretation] I would like to draw your attention to the crowd
8 of civilians that you described who were in front of the school in
9 Orahovac. Let me ask you this: You did not know these people
11 A. No.
12 Q. So everything you heard from them about fury towards the prisoners
13 you heard that while were you on duty in front of the school?
14 A. Yes.
15 Q. Could you describe in greater detail the nature of their fury at
16 the prisoners at the school? Why were they furious at them?
17 A. The main reason was that it was wartime. And this is how they
18 viewed the enemy side. In addition to that, there were many people there
19 who had lost their loved ones and that's the only way I could explain
20 their hostility and hatred.
21 Q. So it was mostly people who had suffered losses in wartime, say
22 they had lost their child or a brother or something like that? Is that
23 what you mean?
24 A. Well, such individuals stood out from the crowd, yes. But there
25 were also people there who were simply curious or who happened to be there
2 Q. You said that they exposed -- expressed certain aggression, they
3 wanted to settle scores with those prisoners, correct?
4 A. Yes.
5 Q. In your statement the one that I read, it says that some of them
6 were even armed. Is that true?
7 A. Everybody was armed at the time.
8 Q. Thank you. Can you explain something else to me, please. Since
9 the prisoners were there inside the school, did they see them as members
10 of the Muslim army or some paramilitary units? Is that how they perceived
12 A. Yes.
13 Q. Thank you. Could the same be said -- I don't want to repeat the
14 question. Could the same be said of the situation in the village of
16 A. Yes.
17 Q. Thank you. Now, I will point out to -- a minor difference in
18 relation to your previous statement. You said that when the buses arrived
19 with prisoners there were a dozen or more of them. In your previous
20 statement you said that there were about 10 of them. Perhaps it doesn't
21 seem like a major difference to you; I just wanted to clarify. A dozen or
22 more, that's what you said here. This "or more," could this mean one or
23 two more or 10 to 20 more? I just want to narrow down this term that you
24 used "or more." What could that possibly mean?
25 A. Listen, it wasn't my role to count the buses, nor was I able to do
1 that. Because as they got off a bus we would escort them to this location
2 and when I said "or more" that means that there could have been 15 of
3 them, but not more than that. However, this is just my personal
4 assessment; that doesn't need to be necessarily accurate.
5 Q. Do you rule out the possibility that there could have been less,
6 that there could have been eight or nine?
7 A. No.
8 Q. That's all I had.
9 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honours. I don't
10 have any other questions.
11 JUDGE AGIUS: I thank you, Mr. Zivanovic.
12 Mr. Ostojic who is appearing for Mr. Beara will be cross-examining
13 you next.
14 MR. OSTOJIC: Thank you, Mr. President, Your Honours.
15 Cross-examination by Mr. Ostojic:
16 Q. Sir, I have a few questions for you. I want to follow up on
17 Mr. Zivanovic's question in relation to your statement. Do you recall
18 when you gave your statement to the Office of the Prosecutor?
19 A. Could you repeat your question? I apologise, I didn't quite
20 understand your question (redacted)
21 Q. Yes. Can you tell me when it is that you gave your statement to
22 the Office of the Prosecutor?
23 A. In 2005, winter-time. End of year.
24 Q. I have it here as being November 24th, 2005.
25 JUDGE AGIUS: One moment. Mr. Nicholls, what's the problem?
1 MR. NICHOLLS: No problem, Your Honour. Just out of a huge
2 abundance of caution, could we redact line 18, because that's a
3 semi-unique quality.
4 JUDGE AGIUS: All right. Let's participate in this abundance of
5 precaution and redact the line 18, or the last part starting from even
6 the ...
7 MR. OSTOJIC: May I proceed.
8 JUDGE AGIUS: Yes.
9 MR. OSTOJIC:
10 Q. Sir, November 24th, 2005, is what I have on the statement sheet.
11 Is that approximately accurate?
12 A. Yes.
13 Q. Could you share with us, sir, how it is that you became a witness
14 to give an interview 10 and a half years after the events of July of 1995
15 to the Office of the Prosecutor?
16 A. I was contacted by a police inspector from the Zvornik security
17 station telling me that people from The Hague OTP were looking for me from
18 the investigator's office.
19 Q. And when did this occur, sir?
20 A. Before I met up with the investigator, some 10 to 15 days prior to
21 that. I'm not quite sure, maybe even less than that.
22 Q. Did you ever receive a subpoena or a notice to appear to give a
24 A. Only from the police inspector. It was a verbal notice. He told
25 me this in a conversation.
1 MR. OSTOJIC: And just briefly, Your Honours, if we can go into
2 private session so I can have the name of the inspector, please?
3 JUDGE AGIUS: Yes, let's go into private session for a short
4 while. Yes, Mr. Nicholls. One moment.
5 [Private session]
5 [Open session]
6 JUDGE AGIUS: We are in open session.
7 MR. OSTOJIC: Thank you.
8 Q. Sir, where did you meet the Prosecutor to give your statement?
9 A. In the police station in Zvornik.
10 Q. Were any other former Zvornik Brigade military policemen also
11 giving interviews on or about the date of November 24th, 2005?
12 JUDGE AGIUS: Yes, Mr. Nicholls.
13 MR. NICHOLLS: This whole line is totally irrelevant and I think
14 it's not the proper questions for him to put to the witness, which other
15 people may or may not have been met. He can ask us this information any
16 time he wants.
17 JUDGE AGIUS: That's correct, but I think the witness also is in
18 the position to give a very simple answer to that question.
19 Can you give an answer to that question -- can you answer that
20 question, Witness?
21 THE WITNESS: [Interpretation] I know about myself, I can't tell
22 you anything about others.
23 JUDGE AGIUS: That's what I anticipated hearing. So let's move
24 ahead, please.
25 MR. OSTOJIC: Thank you.
1 Q. Sir, during the interview with the Office of the Prosecutor did
2 they tell you that you were considered to be a witness or a suspect?
3 A. I don't even remember that. I just know that they took a
4 statement from me, I signed the statement. I think that I was told that I
5 was a witness.
6 Q. During that interview, did they read any rights to you, sir?
7 A. Yes.
8 Q. Share with us what rights the Prosecutor read to you during your
9 interview with them in November of 2005.
10 A. I remember that I was told when I signed the statement that it
11 could be used in trials or in testimonies, in local courts. As for my own
12 rights, I don't even remember whether they told me anything about that.
13 Q. Sir, do you remember if the interview meeting in November 2005 was
14 tape-recorded or video-recorded?
15 A. I saw that both investigators were writing things down and there
16 was a lap top in front of them. I didn't see any other devices there.
17 Q. How long did the interview last?
18 A. Three to four hours with a break. The break was about one hour
19 long, after which they read my statement to me and prepared for me to sign
21 Q. To the best of your recollection, sir, did the Prosecutor discuss
22 all the events of July of 1995, or did they selectively discuss the events
23 that you have testified during your direct examination here today and as
24 reflected in your statement?
25 A. These events. We discussed that period of time while I was in the
1 military police. This is what it was about, yes.
4 (redacted). I simply wanted
5 to clarify, to explain my stay in the military police. During that brief
6 period of time I told them where I was, where I had been wounded.
7 Q. Sir, am I correct to understand that you personally did not
8 witness any executions [Realtime transcript read in error, "excuses"],
10 A. Yes.
11 Q. And, sir, am I also correct that in the school of Orahovac you did
12 not see any dead bodies while you were, correct?
13 JUDGE AGIUS: One moment. What's -- Mr. Nicholls, what's the --
14 what's the objection.
15 MR. NICHOLLS: It's no objection, I just ask to redact lines 25
16 and page 46, line 1. I didn't go into that unit in my direction and open
18 JUDGE AGIUS: You are correct. Let's redact those two lines, line
19 25 of page 45 and line 1 of page 46, please.
20 Yes, in the meantime you may proceed, Mr. Ostojic.
21 MR. OSTOJIC: Your Honour, just on 46, just for correcting the
22 record, on line 6 it shows, witness any excuses, but I think I said
23 "executions," which -- just so it's clear, and I'm sure it is.
24 JUDGE AGIUS: Yes.
25 MR. OSTOJIC:
1 Q. In any event, my last question to you, Mr. Witness and
2 Your Honours, as I stated am I also correct that in the school of
3 Orahovac, you did not see any dead bodies while you were there, correct?
4 A. Yes.
5 MR. OSTOJIC: Thank you, Your Honours, that's all I have.
6 JUDGE AGIUS: I thank you, Mr. Ostojic.
7 Mr. Stojanovic who is appearing for Borovcanin will be
8 cross-examining you next.
9 MR. STOJANOVIC: [Interpretation] Good morning, Your Honours.
10 Cross-examination by Mr. Stojanovic:
11 Q. [Interpretation] Good morning, witness. Today during
12 examination-in-chief on page 18, lines 15 through 18, you said that
13 civilian buses started arriving and that they were escorted by civilian
14 police in blue uniforms. Do you remember saying that today?
15 A. Yes.
16 Q. I would like to put several questions to you about this part of
17 your evidence. How did the police in blue uniforms arrive? In what means
18 of transportation?
19 A. They got off the buses. They were the first one to get off the
20 buses. There were a couple of policemen on each bus.
21 Q. Can you tell us what those blue uniforms looked like?
22 A. Blue police overalls, combat ones. Not the uniform that you wear
23 when on patrol duty, no. These were blue combat overalls. Some of them
24 were armed and some had flak jackets. Some didn't.
25 Q. Can you tell us how many there were?
1 A. They assisted us. As the buses arrived they got off the buses and
2 then they worked together with us in that area. Where we worked with
3 prisoners, there were perhaps seven to eight, maybe even 10 civilian
4 policemen, because there were five to six of us military policemen, so
5 there was simply no room for more than that.
6 Q. Did they go together with those buses and then come back?
7 A. Yes, they would come back.
8 Q. Let us clarify something. It seems we have a problem in the
9 transcript. So they went together with buses and did not return back.
11 A. Yes.
12 Q. They went before the truck arrived, the truck that took the
13 prisoners away, correct?
14 A. Yes.
15 Q. Did you recognise any of these policemen at the time?
16 A. I don't know. Some faces seemed familiar, yes. But I didn't
17 really look at them intently.
18 Q. Did you recognise them from the town of Zvornik?
19 A. Yes.
20 Q. Thank you.
21 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours, we have
22 no further questions.
23 JUDGE AGIUS: I thank you, Mr. Stojanovic.
24 Who is next?
25 Madam Fauveau who is appearing for General Miletic will ask you
1 some questions.
2 MS. FAUVEAU: [Interpretation] We have in questions -- we have no
3 questions Mr. President.
4 JUDGE AGIUS: The Defence team for General Gvero.
5 MR. JOSSE: Same for us, Your Honours.
6 JUDGE AGIUS: And the Defence team for Pandurevic,
7 General Pandurevic. Okay, I thank you.
8 MR. SARAPA: [No interpretation]
9 JUDGE AGIUS: The interpreters didn't hear what you said, Mr.
10 Sarapa, if you could switch on and repeat what you said, please, just for
11 the record.
12 MR. SARAPA: I said just a few questions.
13 JUDGE AGIUS: Yes, then go ahead, please.
14 Cross-examination by Mr. Sarapa:
15 Q. [Interpretation] Good day.
16 A. Good day.
17 Q. Could you please specify, if you can, if you remember what was the
18 date you were in Orahovac?
19 THE INTERPRETER: Counsel, please, needs to speak up.
20 MR. SARAPA: [Interpretation] Perhaps we can move into private
22 JUDGE AGIUS: We will -- we will do that, Mr. Sarapa. However,
23 the interpreters have draw our attention that you need to raise your voice
24 a little bit because they can barely hear you.
25 MR. SARAPA: [Interpretation] I will repeat my question.
1 JUDGE AGIUS: Thank you, and we have in private session now.
2 [Private session]
11 [Open session]
12 JUDGE AGIUS: We are in open session. Mr. Bourgon. Any time you
13 need to go into private session, please advise us before.
14 MR. BOURGON: Thank you, Mr. President.
15 Cross-examination by Mr. Bourgon:
16 Q. Good afternoon, Witness -- or good morning, Witness.
17 A. Good day.
18 Q. I have a few questions for you to clarify some parts of your
19 testimony here today. And I will begin with the fact that -- and I guess
20 I need to go into private session for my first question.
21 JUDGE AGIUS: Let's do that. Let's go into private session.
22 [Private session]
11 Pages 6480-6482 redacted. Private session
7 [Open session]
8 JUDGE AGIUS: We are in open session, Mr. Bourgon.
9 MR. BOURGON: Thank you.
10 Q. Witness, you just -- in responding to my last question you
11 referred to those vehicles. My question is more the total atmosphere as
12 you are living these events, when you are trying to fend off, to use your
13 number, you said there was 100 or so people there and you have a number of
14 prisoners that have been taken into that school. That situation, maybe I
15 can use the word "chaotic"; would that be a fair description?
16 A. Yes, that would be an -- a fair description.
17 Q. Now, you yourself, now I -- I take it -- I take this from your
18 statement, this is not something you have mentioned today, but from your
19 statement - and if there is a need I will show you your statement but I
20 don't think that will be required - you mentioned that you were performing
21 mostly crowd-control duties and that your attention was focused on the
22 crowd. That's where you -- your main attention was; is that correct?
23 A. Yes.
24 Q. And also in your statement, and now you gave this information as
25 part of your testimony also today, you mentioned that you concluded that
1 there were some higher officers who showed up that day during these
2 events; is that correct?
3 A. Yes.
4 Q. Now, you yourself are not able to conclude either who they are or
5 how high they are, but others around you came to such conclusions; is that
7 A. Yes. Amongst us military policemen, all I know are the people
8 from the Zvornik Brigade, and a policeman kind of said yes, these are
9 officers, and by the behaviour of Drago Nikolic you could see they were of
10 superior rank. We commented amongst ourselves, but I didn't know them
12 Q. Thank you. Just in respect to your last question -- or last
13 response - sorry - brings exactly what I wanted to ask you, in terms of
14 that when you saw Drago Nikolic speaking to those officers, you could not
15 tell, you did not hear what was said; is that correct?
16 A. Correct.
17 Q. But you can tell how he behaved that he was speaking indeed to
18 higher officers; is that correct?
19 A. Yes.
20 Q. Now, something that you said this morning at page 22, lines 7 to
21 9, which my understanding from what you said is that you actually saw the
22 prisoners in the school at some point; is that correct?
23 A. Yes. I was at that entrance and occasionally I would just glance
24 at it and check, because there was an empty space around us that we had
25 left like that for our own and for their safety.
1 Q. Now, we have some information that was reported to us by other
2 people that there was some kind of a leader in there wearing a red beret.
3 Do you remember anything like that?
4 A. No.
5 Q. But are you in the position to confirm that those people who were
6 directing the operations inside the gym, they were not from the Zvornik
7 Brigade; would that be a fair statement?
8 A. Could you please say that again?
9 Q. Will do. My question is simply that the people who are directing
10 the operations inside the gym, I suggest to you that these people, unlike
11 those that you described that were involved just outside, these people
12 inside, they were not from Zvornik Brigade. Would that be a fair
14 A. No. All I remember are the military policemen. I don't know who
15 you are talking about when you talk about those people.
16 Q. But are you in a position to say because you answered earlier this
17 morning when you referred to "those people," those people are people in
18 addition to the military police; is that correct?
19 A. Those people, I said those people were near the truck when people
20 were being boarded and transported away, the prisoners, and not in the
22 Q. And you yourself, while you were in the gym, for that short period
23 of time, you did give water to the prisoners?
24 A. We let one of the prisoners go out to take water.
25 Q. Thank you. Now, the next event that you testified about is, as my
1 colleague referred to it, how the prisoners were -- came about to leave
2 the gym. My question is straightforward in the sense of, until you heard
3 from people around you talking about executions, after hearing some shots
4 fired, until that very moment you never knew that there would be killings
5 involved with those prisoners; is that correct?
6 A. Correct.
7 Q. I now move on to -- well, no, one last question before moving to
8 Rocevic. And that is a question that was asked to you by my colleague,
9 but it was done in -- in private session. And I would like you to confirm
10 now at this point that you felt ashamed as to what was going on but really
11 there was nothing you could do. Is that a fair statement?
12 A. Yes.
13 Q. And you've already answered the question to fact that you were
14 there until the last of the prisoners were taken out. Is that okay?
15 A. Correct.
16 Q. Now, I'm curious, is during that time that you spent in the -- in
17 this area - we're talking about a few hours according to your testimony -
18 whether you saw -- whether anybody brought you food, either for you or for
19 the detainees. Did you eat anything that day?
20 A. I don't remember that.
21 Q. Do you remember any other vehicle coming to the school that day to
22 bring some food to the people involved, and that is either the detainees
23 or yourself?
24 A. I don't remember that.
25 Q. Now, in terms of the people that -- the length of the people --
1 sorry, the duration of the stay of the prisoners in the gym, you already
2 said that they spent a few hours, and that was in response to a prior
3 question. My question to you is, I would suggest that those prisoners,
4 the first who were taken out to be taken to the site where the killings
5 took place, that this happened towards -- or later in the afternoon. Is
6 that a fair statement?
7 A. Yes.
8 Q. Now, I move on to Rocevic. And you've already testified, I'm not
9 sure, so I will ask you this question, that Rocevic took place the next
10 day; is that correct?
11 A. Yes.
12 Q. And also I'd like you to confirm that the prisoners were already
13 there and that the task which was assigned to you was the same one as in
14 Orahovac, namely that was crowd control; is that correct?
15 A. Correct.
16 Q. Now, even though the previous day some prisoners, even though you
17 didn't see it, you know that some prisoners were killed the previous day,
18 on that day in Rocevic when you are doing your crowd-control duties, can
19 you confirm that once again you did not expect the prisoners to be taken
20 out to be killed. Is that correct?
21 A. Correct.
22 Q. And when the -- you described the situation at the Rocevic School,
23 you mentioned that there were a very few of you from the military police,
24 but there were other people with VRS military uniforms; is that correct?
25 A. Correct.
1 Q. And in response to a question from my colleague you mentioned that
2 you did not -- you were not sure whether these people were from the
3 Zvornik Brigade; is that correct?
4 JUDGE AGIUS: Yes, Mr. Nicholls.
5 MR. NICHOLLS: I'm not objecting, but if my colleague has a
6 reference, I'd like to have it, but ...
7 MR. BOURGON: I will provide a reference, Mr. President.
8 JUDGE AGIUS: Could you be specific, yes, Mr. Bourgon.
9 MR. BOURGON: That is at -- I know it's on page 36, so I will
10 just ...
11 Okay. I refer my colleague to page 34 - I'm sorry - to line 16 to
13 Q. And on this occasion, Witness, you mentioned that there was only
14 two or three of us, I will not say what type of people we are talking
15 about, but the rest you say "I think members of the Zvornik Brigade." And
16 my question is you cannot say today that these people were indeed from the
17 Zvornik Brigade; is that a fair statement?
18 A. Most of the people were locals, local people who were in uniforms.
19 Well, I can say of course, yes, they're all members of the Zvornik
20 Brigade, but they were wearing uniforms. Faces that were not familiar to
21 me. I saw that there were many local citizens in uniform.
22 Q. And my question is simply you can't confirm from which unit these
23 people were; is that correct?
24 A. Correct.
25 Q. Now, I would simply like to get your -- your testimony on whether
1 we can -- when we look at the situation in Rocevic, that we can
2 distinguish between --
3 MR. BOURGON: We'll go into private session, Mr. President.
4 JUDGE AGIUS: Let's go into private session, please.
5 [Private session]
19 [Open session]
20 JUDGE AGIUS: We are in open session.
21 MR. BOURGON:
22 Q. Now, during your testimony today, Witness, you mentioned that
23 these people, you were quite clear as to where the people from Rocevic
24 were taken and executed. My question to you is simply: At the time you
25 did not have this information, nor did you know that those people were
1 being -- where those people were taken to be killed; is that correct?
2 A. Correct.
3 Q. And it's only later that, through rumours flying around, you
4 managed to determine that those people would have been executed, although
5 you never saw that, in the Kozluk area; is that correct?
6 A. Correct.
7 Q. Now, the time you spent in Rocevic, are you in a position to
8 confirm that the -- by the time you left all the prisoners had been taken
9 away from the Rocevic School on that day?
10 A. Yes.
11 Q. Now, I move to another topic, and that is the -- I will need to
12 move into private session, Mr. President.
13 JUDGE AGIUS: By all means. Let's move into private session.
14 [Private session]
11 Page 6491 redacted. Private session
16 [Open session]
17 JUDGE AGIUS: Re-examination, Mr. Nicholls?
18 MR. NICHOLLS: No, Your Honour.
19 JUDGE AGIUS: I thank you.
20 So we don't have any questions either for you, sir. Which means
21 that your testimony finishes here. On behalf of the Tribunal, I wish to
22 thank you for having come over to give evidence in this case. And I also
23 would like to wish you a safe journey back home.
24 THE WITNESS: [Interpretation] Thank you.
25 [The witness withdrew]
1 JUDGE AGIUS: We had heard some hinting in Mr. Bourgon's first
2 intervention this morning as to what -- what to expect after this
3 witness's testimony.
4 Do you have any other evidence lined up for the day?
5 MR. NICHOLLS: This went quicker than we expected. We -- we do
6 have a witness ready, Ms. Gilleece, who is here and ready. However, I
7 think there is a problem with that in that Mr. Haynes is not here. And I
8 believe that they are -- that team's desire, and I agree with it, was --
9 was that Mr. Haynes would be dealing with that witness. I don't want to
10 put words in my colleague's mouth. So I'm not sure that we can go ahead.
11 JUDGE AGIUS: Mr. Sarapa, or -- I don't know, because I see
12 Mr. Bourgon, Madam Fauveau. Mr. Sarapa, when is Mr. Haynes returning?
13 MR. SARAPA: [Interpretation] He will definitely be here tomorrow.
14 JUDGE AGIUS: All right. Madam Fauveau?
15 Thank you, Mr. Sarapa.
16 Yes, Madam Fauveau. And -- and Mr. Bourgon then.
17 MS. FAUVEAU: [No interpretation]
18 JUDGE AGIUS: Well, okay. All right. My apologies, because I
19 understand, I can follow what she is saying. So it did not occur to me
20 that it was not being translated into English. Basically, she is saying
21 that she is surprised at Mr. Nicholls's intervention because Ms. Gilleece
22 is listed as coming forward to testify on the 5th of February. And the
23 fact that in view of a motion for variance of protective measures, that
24 the Prosecution filed and which we are going to decide here are -- now I
25 am receiving interpretation in French. Okay. Forgiven.
1 We are going to decide that motion of yours for the variation of
2 protective measures in respect to Ms. Gilleece. However, I checked last
3 week with my senior legal officer to see how proximate her testimony was,
4 and initially it was supposed to be this coming -- this coming week,
5 initially I think on the 2nd of February or something like that or on the
6 last day of -- of -- last day of this month or 1st of February because 2nd
7 we are not sitting then I was told it was put off until the 5th. So I
8 think we might as well close the discussion on Ms. Gilleece, except
9 insofar as I can decide -- we can --
10 [Trial Chamber confers]
11 JUDGE AGIUS: Yes, Mr. Bourgon.
12 MR. BOURGON: Thank you, Mr. President, it's just Because we were
13 expecting Witness 136.
14 JUDGE AGIUS: We are coming to that. Because the next witness,
15 according to what we have been told is PW-143. So I am coming to that.
16 But let's close -- why did you think of bringing forward Ms. Gilleece when
17 we should be talking of witness PW-143, Mr. Nicholls?
18 MR. NICHOLLS: We sent out a new order. It is true that witness
19 143 is what we intended to bring next. He is not -- he is here in -- in
20 the -- in town, but he hasn't -- he's not really prepared to testify yet.
21 It's possible that I can try to see if I can get him here by 1.00, but he
22 was not completely -- he hasn't been talked to yet and he's not really
23 ready to go. We thought Ms. Gilleece was a possibility and we, I thought,
24 set that out.
25 JUDGE AGIUS: But I think Ms. Gilleece is not a possibility at
1 this point in time, as -- as it transpires from your own --
2 MR. NICHOLLS: The other reason we brought Ms. Gilleece forward
3 and had her -- brought her out at short notice and got her ready was in
4 the event that Mr. Nikolic was unable to attend, if he had health problems
5 we wanted to have somebody to go. So we got Ms. Gilleece ready to go.
6 JUDGE AGIUS: I appreciate that. In the meantime, I think we can
7 decide the Prosecution motion for variation of protective measures.
8 Prosecution is seeking the removal of the protective measures that were
9 granted in respect of Ms. Gilleece earlier. The Prosecution request is
10 being granted on the assumption that there is -- would not be any
11 opposition from any of the Defence teams. So all the protective measures
12 granted earlier have now been removed and she can testify publicly.
13 All right. I think this calls for a break now. What I suggest is
14 that we will make ourselves all available in 30 minutes' time and you make
15 every effort, even superhuman efforts, Mr. Nicholls, to try to have PW-143
16 ready to start giving evidence as soon as possible after the 30-minute
17 break. We are at your disposal. Will you please let us all know that he
18 is ready to start giving evidence and then we start.
19 MR. NICHOLLS: Yes, Your Honour.
20 JUDGE AGIUS: Thank you.
21 --- Recess taken at 12.11 p.m.
22 --- On resuming at 12.49 p.m.
23 JUDGE AGIUS: Yes, Mr. Nicholls.
24 MR. NICHOLLS: Your Honours, I'm afraid we do not have a witness
25 available for the rest of the day. I've already made the explanations, so
1 I won't make excuses. We had hoped Ms. Gilleece -- when we brought her,
2 we didn't know that Mr. Haynes was going to be absent when she flew out
3 this weekend. The other witness, I have not been able to bring here and
4 be ready. So I think -- we'd ask the Defence if we could go forward with
5 just the direct, but they do not wish to do that and we respect that. So
6 I'm afraid we do not have another witness for today. We will be ready to
7 start tomorrow on time, and hope -- I don't believe there will be any more
8 gaps. We will try to adjust for this -- this is no criticism, very
9 efficient cross-examination, it's half what we -- the estimate was. That
10 is not a complaint, but it was much quicker than we expected. We will try
11 to keep it moving the rest of the week.
12 JUDGE AGIUS: All right. Let's take them one by one with regard
13 to Witness PW-143 and his unavailability today. Is there a real reason
14 why he was not ready, prepared to start his testimony today?
15 MR. NICHOLLS: It's just the schedule of bringing them,
16 Your Honour, and our ability to have them go over their statements and
17 make sure that -- that any disclosure duties we might have going through
18 ISU searches are done and that needs to be completed absolutely before --
19 JUDGE AGIUS: Has the proofing been done?
20 MR. NICHOLLS: I have met him Your Honour and had him read his
21 statement. But that's it really because Sunday was the only day and I was
22 with the witness we've just heard for most of the day and worked quite
23 late getting -- getting my disclosure out on that witness, my supplemental
24 information sheet and ...
25 JUDGE AGIUS: All right. That is to an extent understandable on
1 the other hand it is the responsibility of the Trial Chamber to recommend
2 to you as much as possible, particularly based on recent events, to have
3 subsequent witnesses ready to start giving evidence, even in instances
4 like what happened today. In other words, when you have to anticipate
5 their evidence by some hours or a day or so.
6 MR. NICHOLLS: Yes, and unfortunately we did that with
7 Ms. Gilleece and we were not able to go ahead with that. We had another
8 witness. We proofed three witnesses yesterday and the third witness is
9 not ready yet and the Defence probably aren't.
10 JUDGE AGIUS: Yes, but now I come to Ms. Gilleece. I of course --
11 my colleagues do understand the concern of at least one of the Defence
12 teams with whom there seems to have been some kind of arrangement already
13 with the Prosecution that he will be present, Mr. Haynes in particular,
14 I'm referring to, when Ms. Gilleece is giving evidence so that he can
15 proceed with his cross-examination. That is understandable, but what we
16 can't understand is the -- this is what we have been told, that there is
17 across the board opposition to having Ms. Gilleece start testifying in
18 chief only with no cross-examinations to follow today. I mean, what's the
19 objection to that? I mean, if she starts her examination-in-chief and
20 hopefully finishes it as well, I mean what's the problem with reserving
21 cross-examinations for all of you until when she returns as scheduled
22 on -- or more or less around the 5th of February?
23 Yes, Mr. McCloskey. It seems that the problem originates more
24 from your side rather than from the Defence side.
25 MR. McCLOSKEY: There is a particular issue with Mr. Sarapa that
1 we are sensitive to. I don't think the other counsel, I'm not sure, have
2 a problem with the direct only, I know they didn't want to have to cross,
3 which we understand. But there is a unique issue that we've been
4 discussing with Mr. Sarapa, and we really needed Mr. Haynes to be here to
5 avoid that issue. I -- it -- I don't know -- I can -- I, of course, can
6 get into it in more detail, but the practical reality is we should have
7 Mr. Haynes here and that's what Mr. Sarapa wishes and so we're not pushing
8 it beyond that. We were hoping we could do direct, but ...
9 JUDGE AGIUS: All right, but how does Mr. Haynes's presence here
10 affect significantly affect your proceeding with -- with the
12 MR. McCLOSKEY: Ms. Gilleece, when she interviewed
13 General Pandurevic, General Pandurevic had Mr. Sarapa with him at the
14 time, and that is -- has always been known by everyone, and the Registry,
15 and with -- as long as Mr. Haynes was here during that process, there
16 wasn't -- the Registry didn't feel there was a -- a real conflict issue.
17 And so Mr. Sarapa, it's our understanding, feels more comfortable that
18 even direct examination in such a context he would like his counsel to be
19 there -- or his colleague to be there in order to make objections and we
20 understand that. And as I say, that's the situation we find ourselves in.
21 This was many years ago, and he happened to be with -- with the accused.
22 JUDGE AGIUS: Yes, one moment.
23 [Trial Chamber confers]
24 JUDGE AGIUS: All right. We have discussed, and albeit with some
25 reluctance, because we, as you see, are quite keen, trying to utilise to
1 the best resources that we have. We do, however, understand the
2 respective positions, as explained by Mr. McCloskey, and we agree to
3 postpone the testimony of Ms. Gilleece until later.
4 There are two issues that we would like to address very briefly.
5 Last Friday, Mr. Zivanovic, the Trial Chamber particularly Judge Prost
6 addressed you with respect to your motion for an extension of time
7 regarding the dead-line we imposed on the 17th of January for the Defence
8 filing in relation to the intercept operators. And we agreed that we will
9 come back to you today, having had time to think about it, so would you
10 like to address the Trial Chamber?
11 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour. I decided
12 nevertheless to remain by our motion, even though we understood your
13 order, and the explanation given by Judge Prost. We believe that we need
14 to present our reasons after all of the witnesses are heard, witnesses
15 concerning the intercepts, including the additional examination of witness
16 Stefanie Frease, which is outstanding. In the meantime the Prosecution
17 was given full access to witness Stefanie Frease. This is why we think
18 that it would be in the interests of the Defence to comply with the order
19 of the Trial Chamber after all of these witnesses are heard.
20 JUDGE AGIUS: All right. Thank you.
21 [Trial Chamber confers]
22 JUDGE AGIUS: So let's deal with this first. I don't want to give
23 you the impression that this is the first time the four judges have been
24 discussing the merits of Mr. Zivanovic's motion. We have, of course,
25 given it a lot of thought already. Even last Friday, before we decided to
1 address you, Mr. Zivanovic. The position as we see it is the following,
2 and this is the oral decision upon your motion which was filed on the 24th
3 of January and by which you sought an extension beyond the 2nd February
4 2007 dead-line on the basis, according to you, that this dead-line does
5 not allow the Defence to digest the evidence of various -- all the
6 intercept operators, including that of Ms. Frease.
7 We refer you to our decision of the 17th January, where
8 incidentally we made it abundantly clear that there was a legal,
9 predominantly legal reason why we asked you to, all of you to file a
10 written -- file your written arguments on -- not written arguments,
11 your -- to give notice on your objections to the intercept operators or
12 evidence before the testimony Ms. Frease. There are two -- it was a
13 two-pronged decision.
14 First was that we considered that after having heard several weeks
15 of evidence on this topic the fact that there were a few other witnesses
16 still remaining to be heard on this subject was of no material evidence.
17 We believe that there has been ample opportunity to digest what the
18 substance of the Prosecution case as regards intercept and intercept
19 operator was, and since then we have even heard more intercept operators,
20 so the argument of the Trial Chamber is strengthened. So that stands on
21 its own; should be sufficient to turn down your extension.
22 However, we also wish to deal with your reference of the testimony
23 of Ms. Stefanie Frease. We had made it clear in our decision and also
24 during some exchange of opinions and discussions on this matter, that we
25 needed your broad position on intercepts before the testimony of
1 Ms. Frease precisely because we wanted to avoid the possibility of having
2 Ms. Frease start and finish with her testimony not knowing what your basic
3 objections to the intercepts -- intercept and intercept operator were,
4 with the result that this would be counter-productive for the proper
5 administration of justice in that her testimony could potentially end up
6 with being incomplete, unfinished symphony, if I may call it that.
7 The situation does not change, if anything it now allows for
8 greater weight for the Trial Chamber's argument in that you have heard
9 Ms. Frease give evidence already in two occasions in direct, and you
10 therefore have enough or sufficient information for the time being, what
11 the line she will be pursuing is or will continue to be. So there is no
12 valid argument that we see arising from your submissions and from your
13 motion which could persuade us to grant you an extension. It's a long
14 oral decision, I don't know if the written one would have been shorter.
15 Probably it would have been.
16 So bottom line is, Mr. Zivanovic, your motion is being dismissed.
17 There is also a Prosecution motion requesting protective measures
18 for three witnesses and annexes. You rose one day last week, Mr.
19 Zivanovic, to announce that you had some concerns in relation to one of
20 these witnesses, namely Witness number 143, who would potentially be
21 Witness PW-101. You filed as promised your response last Friday, and we
22 have taken full cognizance of it. Before we proceed with our decisions,
23 after having made consultations, we decided to first make sure if any
24 other Defence team would like to make submissions in relation to the same
25 Prosecution motion, namely in relation to the three witnesses and not just
1 101, but of course 101, PW-101 included. We hear none.
2 So this is our decision. And again, it is oral and will only
3 be -- and won't be followed by a written decision, unless the Prosecution
4 or the parties indicate they need for one.
5 The Trial Chamber is seized of a Prosecution motion filed on the
6 24th of January of this year requesting protective measures for three
7 witnesses. And also of a response filed by the Defence team for
8 Mr. Popovic, called Defence Response to Prosecution Motion for Protective
9 Measures for Three Witnesses and Annexes, including ex parte Annex B filed
10 on the 26th of January. We see that the substance of the response by the
11 Popovic Defence team is that the Prosecution, according to the Defence
12 team, has failed to prove that there is a real danger to this witness,
13 101, PW-101, or Witness 143. We've carefully examined your submissions,
14 we have also carefully examined the Prosecution witness, and in particular
15 the confidential and ex parte reports that have been annexed to the
16 motion, one attached to Annex A dated 10th April 2006, and the other one
17 which is, apart from confidential, also ex parte, which constitutes the
18 substance of Annex B.
19 The Trial Chamber, after having given weight to the information
20 contained particularly in these two annexes, has not the least doubt that
21 the protective measures sought by the Prosecution in their motion are
22 completely justified and we therefore grant the same motion allowing a
23 pseudonym and face distortion of both -- and face distortion for this
25 So I think we have covered all the territory we could cover.
1 Yes, Mr. -- Madam Fauveau.
2 She's always one step ahead of you, Mr. Bourgon.
3 MS. FAUVEAU: [Interpretation] Mr. President, I would like to come
4 back on the position of Ms. Frease. She should normally come next Monday.
5 The last schedule we have was the earliest the 8th or the 9th of February.
6 I am a bit concerned by the fact that we are putting in our motion on
7 admissibility; the office will continue to contact her. I am not asking
8 for an extension, but I would request if you could order the Prosecution
9 to cease any contact from the moment we will have filed our motion
10 concerning the intercepts.
11 JUDGE AGIUS: Yes. Mr. McCloskey, and then I give you the floor,
12 Mr. Bourgon.
13 Mr. McCloskey or Mr. Nicholls, I don't know who wishes to address
14 the Trial Chamber on this.
15 MR. McCLOSKEY: Yes, Mr. President. We do not need to talk to
16 Ms. Frease about what she has testified before, but she's -- she's coming
17 up and we want her testimony to be organised and she's actually assembling
18 the collection of intercepts and that's the -- the significant intercept
19 binders that will form the -- the key exhibit. And this is something we
20 need to -- to talk with her about. I'm not sure what's the purpose of us
21 not talking to Ms. Frease for. I think such an order needs to have --
22 grounded in some sort of legitimate concern. I don't see it here,
24 JUDGE AGIUS: Yes. One moment, Mr. Bourgon.
25 [Trial Chamber confers]
1 JUDGE AGIUS: Yes. When do you plan to meet with Ms. Frease? For
2 the proofing, further proofing session?
3 MR. McCLOSKEY: I -- we see Ms. Frease every day. She's working
4 on a special contract here, and so we see her, you know, frequently.
5 JUDGE AGIUS: Yeah, but seeing her is one thing, proofing her is
7 MR. McCLOSKEY: Mr. -- Mr. Vanderpuye would be the best position
8 to answer that. Usually it would be a day or two in advance, so that is
9 actually -- we have an idea of --
10 JUDGE AGIUS: If it's a day or two in advance, and she testifies
11 on Monday, it means you're -- have the proofing sessions on Saturday and
12 Sunday. If you see her every day, I mean, why can't that take place
14 MR. McCLOSKEY: We are open to the Court's suggestions on that.
15 JUDGE AGIUS: We are not coming with suggestions, I'm just asking
16 a question.
17 MR. McCLOSKEY: We try to do it a day or two before so that you
18 know that it's going to happen. And -- because as you know, schedules
19 change and there's so much work to be done. So I would have to get to
20 Mr. Vanderpuye to get -- to get you better information on that.
21 JUDGE AGIUS: The bottom line is that we are not giving you a
22 decision on this now. We decided to continue discussing, deliberating on
23 this between today and tomorrow and we'll come back to you tomorrow.
24 Yes, Mr. Bourgon was before. Unless -- unless it's on the same
25 subject matter.
1 MR. MEEK: It may be, Mr. President. We just like to let you know
2 that we fully agree with the objection of Ms. Fauveau. We think it's --
3 be highly inappropriate to act otherwise.
4 JUDGE AGIUS: Thank you, Mr. Meek.
5 Mr. Bourgon.
6 MR. BOURGON: Mr. President, we also support the motion by my
7 colleague, Mrs. Fauveau. Now, maybe there is another way around it, to
8 simply -- that we can file our submissions ex parte until the end of the
9 testimony of Mrs. Frease. We really feel that it is something that would
10 be inappropriate because our submissions are very much likely -- are very
11 likely to address the issues that will come up in her testimony, and we
12 feel it's inappropriate for the Prosecution to have the benefit of those
13 submissions and even if it is not a question of preparation. If it is
14 only to prepare the way they will tailor the examination-in-chief or what
15 is left of it. For this purpose we would much prefer if we could simply
16 file ex parte until she -- once she's finished her testimony. This way
17 the Trial Chamber gets what the Trial Chamber is interested in. You will
18 know exactly what is each of our respective positions with respect to the
19 admissibility and the arguments that we may have on the intercepts. At
20 the same time we proceed in a fair manner by having the Prosecution
21 proceed with -- with a normal examination-in-chief.
22 JUDGE AGIUS: Thank you, Mr. Bourgon.
23 Mr. McCloskey.
24 MR. McCLOSKEY: I would like to hear the justification for this.
25 If -- if the Defence has issues with the intercepts we would like to hear
1 them as they are obligated to provide -- their Defence, they're obligated
2 to provide certain issues so the Prosecution may deal with them so that we
3 don't go into this back and forth. So I don't understand the gamesmanship
4 going on here, and I haven't seen a reason for the gamesmanship. If
5 there's a reason, you know, I'm -- I'm no adversarial warrior but I don't
6 see it.
7 JUDGE AGIUS: Yes, Mr. Bourgon.
8 MR. BOURGON: Mr. President, the position of the Defence with
9 respect to the intercept was laid out in each of our own pre-trial briefs
10 and the Prosecution knows what the overall position is. Whether it's been
11 explained enough for my colleague is a different matter, but the issue is,
12 we've already said that we are disputing the admissibility of the
13 intercepts. That should be enough for our colleague to understand what he
14 wants. The Trial Chamber would like the benefit for more detailed
15 explanation, of course we go do that because we have been ordered to do
16 that and it will be our pleasure to do it, but we feel it will be
17 inappropriate for those submissions, those detailed submissions to precede
18 the final examination-in-chief of Ms. Frease. Thank you, Mr. President.
19 JUDGE AGIUS: Yes, Mr. Josse.
20 MR. JOSSE: Could the Prosecution confirm that Witness 170 will be
21 giving evidence before Ms. Frease is available for cross-examination?
22 JUDGE AGIUS: Yes. I don't know who can answer that.
23 MR. McCLOSKEY: When we figure out who that is, we should have an
25 MR. JOSSE: According to the last schedule I have seen, that is
1 the position, but we were a little concerned from what was being said that
2 things may have changed.
3 JUDGE AGIUS: In what sense, that things may have changed in the
4 sense that Ms. Frease will testify before?
5 MR. JOSSE: Precisely.
6 JUDGE AGIUS: Is that the case? I suppose you can verify this.
7 We are not talking about a month ahead or two months ahead, we are talking
8 of a few days ahead.
9 MR. NICHOLLS: That is our plan and I will talk to my colleague
10 and talk to everybody, but that is -- the concern he expressed, I don't
11 think he's going to have anything to worry about.
12 MR. JOSSE: Just to emphasise, Your Honour, Witness 170 is
13 particularly pertinent to our client and our case. That's why we have
14 this concern.
15 JUDGE AGIUS: Okay. Thank you. I think we will -- yes,
16 Judge Prost.
17 JUDGE PROST: Perhaps, Mr. Bourgon, because it's perhaps most
18 directly related to your comments, perhaps you could explain a little
19 better to me or to us the position that you are taking with respect to
20 these arguments on the intercepts. The Prosecution is proffering certain
21 evidence which they would like to be admitted. The Defence have indicated
22 they are objecting to that evidence, but basically that's the essence of
23 it, that there is an objection to evidence otherwise which would be
24 admissable. And your suggestion is that the Prosecution should therefore
25 present its evidence without any additional information as to why, what
1 the basis of the objection is, that the Prosecution in essence should
2 bring forward evidence trying to guess as to what the basis for the
3 objections is. I don't quite understand why we are not to get the benefit
4 of knowing at least the underlying objection so that the evidence we hear
5 will be relevant to those objections instead of simply every possible kind
6 of argument that the Prosecution might try and understand to be the basis
7 for the objection.
8 I am a little unclear as to why the Defence is opposed to at least
9 indicating the basis of their objection. Perhaps you could address us on
11 JUDGE AGIUS: Thank you, Judge Prost.
12 MR. BOURGON: Thank you, Judge. Of course I can only speak on
13 behalf of the client we respect in this case. As far as we are concerned
14 contesting the admissibility of exhibits, there's not too many things you
15 can do to challenge the admissibility. As far as we're concerned, we are
16 challenging the admissibility on the basis of a total lack of reliability.
17 Our questions so far have been addressed on the reliability aspects of the
18 intercept. This is what we will detail in our motion that, in our
19 submission, that the Trial Chamber has asked for. There has been no
20 secret, my colleague knows exactly that this is what we will be
21 explaining. What we simply want is not to detail every one of our
22 arguments that go to reliability before they have the last witness, to me
23 which is the most important witness, who can maybe patch up lack of
24 reliability. It's as simple as that. If the Trial Chamber believes that
25 the Prosecution is entitled to know what the Defence arguments are ahead
1 of time as to why it is totally -- a total absence of reliability, then we
2 will -- we will of course -- we will abide by the Trial Chamber's order.
3 Now, this is the position of this team. I know that other teams
4 might have different reason to challenge admissibility. As far as we are
5 concerned, reliability is -- is one of the issues that must be taken into
6 consideration, and we are of the view that it is a complete absence of
7 reliability. Thank you, Judge.
8 JUDGE AGIUS: One further question. Do you mean to say then by
9 supporting or joining in the request of Madam Fauveau that you wouldn't
10 like a situation where the Prosecution can proof Ms. Frease on reliability
11 issues simply because -- because that would -- would go against your
12 rights or whatever? What -- I can't follow the argument.
13 MR. BOURGON: Thank you, Mr. President.
14 JUDGE AGIUS: Because if you yourself are say that there will be
15 no details forthcoming, and we had made it also clear in our explanation
16 to you that what we are requiring from you for the time being is a broad
17 overview for the basis for your motion, let's call it that, on the
18 admissibility of intercepts, and the question of reliability in general is
19 being proffered by you, why shouldn't Mr. McCloskey know it before he
20 proofs Ms. Frease for the purpose of her continued examination-in-chief?
21 MR. BOURGON: What we --
22 JUDGE AGIUS: Do you prefer a situation where he doesn't know that
23 you will be -- admittedly now he knows, but do you want a situation to
24 obtain where he doesn't know that you are contesting the reliability of
25 this evidence with the result that he will not proof Ms. Frease on that
1 issue, and then we come -- we come here, perhaps even finish with her
2 testimony, and then all of a sudden we find ourselves faced with a whole
3 list of arguments dealing with the substance of -- of your objection as to
4 the admissibility? I mean, I don't know, but let's not discuss it any
5 further. We hear what you have to say on this and then we come back
6 tomorrow because we have agreed that it deserves a little more thought and
7 discussion than we have been able to give it here in the few minutes that
8 we have available.
9 Yes, Mr. Bourgon.
10 MR. BOURGON: In short, Mr. President, the Prosecution has the
11 onus when asking for exhibits to be admitted on evidence to show that both
12 probative value and that inside probative value reliability is included
13 and we from the beginning have said that these exhibits have a complete
14 absence of reliability. That is why we will argue that they are
15 inadmissible. In our submission to the Trial Chamber at this stage
16 explain every detail, that is what we will do in our submission. So I'm
17 not sure when I saw what you said about no details, in the contrary, we
18 will put lots of details in that submission as to why there is no
19 reliability. So the Trial Chamber knows exactly where we are going. Then
20 my colleague, knowing that this is our position on reliability, then he
21 knows what he has to do and the onus is on him to show that these
22 intercepts are reliable. We don't see why we should be helping the
23 Prosecution to show the Prosecution, my colleague, I'm sure, knows exactly
24 what he has to do to show that the intercepts are reliable.
25 JUDGE AGIUS: What I doubt in my mind is how that fits in with
1 your previous statement that we made even now the a decision of 17 January
2 that we needed this position or declaration of position from your part,
3 before the testimony of Ms. Frease. That was one of the basic reasons why
4 we handed down our decision the way we did.
5 Yes, let's hear Mr. McCloskey first, and then you have the floor.
6 JUDGE KWON: Can I make a comment to Mr. Bourgon before we go
7 further? The problem, as I understand on the part of Defence is the --
8 the opposition you are now going raise is related to not only the
9 admissibility of certain documents, but also to the Defence case, finally
10 that goes to the reliability or weight of the Defence -- the Prosecution
11 witness in a sense. If the document is to be admitted at all. So what we
12 want you to produce is not a detailed opposition, what we want to know is
13 just crux, skeleton opposition on the part of the Defence. To the extent,
14 not to reveal the Defence case, which can be raised again in a more
15 detailed manner later on.
16 MR. BOURGON: Thank you, Judge. In that case what I have
17 mentioned this morning is what will be in our submission and then we are
18 absolutely -- we misunderstood and we apologise. Thank you, Judge.
19 JUDGE AGIUS: It's quite interesting. First we have a statement
20 from that you, you shouldn't -- you wouldn't like the Prosecution to be
21 aware of your position before they -- or while they are proofing
22 Ms. Frease, and now you tell the Prosecution as from now what your
23 position is going to be before they have even started proofing Ms. Frease,
24 but anyway you don't need to --
25 MR. BOURGON: They have known from the beginning what our position
1 has been. Maybe they have other questions for other Defence teams but as
2 far as we are going, it's very easy to tell where we're going by the
3 questions we've been asking. And the Prosecution knows that.
4 JUDGE AGIUS: Thank you.
5 Mr. McCloskey and then Madam Fauveau.
6 MR. McCLOSKEY: As I read it, I may be wrong, but I believe the
7 Defence wants to be able to bring up for example a specific intercept and
8 a specific problem that shows this intercept is not reliable, doesn't want
9 it to be tagged so when Ms. Frease can come in and she us why she thinks
10 they're wrong. I think that's what they are saying.
11 If that's the case, I believe we're always going to be able to
12 respond to the Defence and their factual arguments either in a rebuttal
13 case or in our own case, be that -- it -- recalling Ms. Frease to deal
14 with issues or having it -- dealt with people, why such a detailed attack
15 on our intercepts is something we shouldn't see at this point. It seems
16 to be unnecessary, but the Prosecution does want to be able to respond to
17 their detailed attack, and we expect a detailed attack. And we don't need
18 to do it now, but I'm sure this system allows for us to respond one way or
20 As the Court is aware, rebuttal evidence, the law on rebuttal
21 evidence is if the Prosecutor could have put it in his case in chief, he
22 can't bring rebuttal. And, of course, God only knows how much we could
23 put in our case in chief, perhaps not much more on intercept evidence.
24 But, so rebuttal evidence is difficult especially with the -- we can all
25 imagine the end of this trial, rebuttal evidence is the last thing anyone
1 is going to want to consider, is my guess. But we do want to have the
2 ability to respond to Defence counsel and their -- and their detailed
3 attack, and I'm sure this Court will allow it one way or another.
4 JUDGE AGIUS: Okay, thank you.
5 Ms. Fauveau, would you like to round it up?
6 MS. FAUVEAU: [Interpretation] Certainly, Mr. President. When I
7 raised this objection I was not sufficiently clear and I have not perhaps
8 presented enough arguments to support my thesis. I will be very direct.
9 By presenting to the Chamber my arguments concerning the non-admissibility
10 of the intercepts, I will -- when I address the Chamber, I will talk about
11 the cross-examination of Mrs. Frease, and this is what I would like to
12 avoid; this is why I agree fully with Mr. Bourgon. Maybe it can be filed
13 ex parte up until Mrs. Frease begins her testimony, or before she begins
14 her testimony, or to stop the contacts with Mrs. Frease and the Prosecutor
15 regarding intercepted conversation or intercepts.
16 JUDGE AGIUS: I thank you. I think we've heard enough. As I
17 said, we'll come back tomorrow afternoon when we resume our sitting, our
18 hearing, after having had time to go deeper into this issue.
19 Mr. Bourgon.
20 MR. BOURGON: Thank you, Mr. President. On a different issue,
21 which is what I wanted to raise before, the last issue on the intercept.
22 And that deals with -- the Trial Chamber has just rendered a decision
23 concerning protective measures for Witness PW-101. This decision was
24 rendered on the basis of inter parte submissions but also on the basis of
25 ex parte submissions. This is without being exactly sure, this is at
1 least the third time that we are dealing in this case with ex parte
3 Mr. President, we fail to understand why we have to live with ex
4 parte submissions. We have -- there is an outstanding motion as you know,
5 which deals with one witness that we don't even know not only the name,
6 the identification, we don't even know what the witness will be speaking
7 about. There is a motion for this witness to be accepted on the
8 Prosecution's list. We are just simply raising the issue. We feel that
9 we are heading in a dangerous path, and that there is too much ex parte
10 submissions going on without the Defence being informed. Maybe there is a
11 reason for that, but we see our role as Defence counsel, as officers of
12 the court, that we have duties and obligations not to reveal information
13 that we come across in submissions that are filed confidentially, and that
14 we have also addressed in our motion that there might be other remedies
15 short of doing a full ex parte submission, so that we may know when we
16 have the information on which decisions are rendered which affect the
17 rights of our clients.
18 I just raise this as an issue at this time because we are a bit
19 afraid that this is an ongoing process of taking the ex parte route when
20 this is not necessary when dealing with the Defence. Thank you,
21 Mr. President.
22 JUDGE AGIUS: I thank you, Mr. Bourgon.
23 Do you wish to comment on that, Mr. McCloskey or Mr. Nicholls?
24 MR. NICHOLLS: Just in relation, Your Honours, I'll just say that
25 I think that the ex parte filings we've made, I think, on their face it
1 can be seen why they're ex parte. We don't try to file anything ex parte
2 unless necessary. It's something available to both parties, we under if
3 they on occasion need to file pleadings in an ex parte -- on an ex parte
5 JUDGE AGIUS: I also want to make something clear that part of
6 your submission seems to indicate that the Defence was not informed that
7 included or annexed to the Prosecution motion there was an ex parte
8 confidential and ex parte Annex B. Mr. Zivanovic's motion itself refers
9 to Annex B, although I am of course aware that none of the Defence teams
10 were is privy to the contents of ex parte Annex B. The procedure as it
11 is, is what it is, and namely the ex parte availability or remedy is of
12 extreme importance when it comes to the personal safety to the life and
13 limb of certain individuals, and of course the -- the whole thing is based
14 on the assumption that the Trial Chamber, who is -- comes -- becomes
15 familiar to the content of an ex parte filing acts responsibly.
16 Everything is based on this assumption. I don't think that there is
17 reason to doubt that.
18 On the other hand I also wish to state that compared to other
19 cases in which I have been involved in, at least the number of ex parte
20 filings in this case have been pretty much limited. There is no reason,
21 at least I speak for myself, I would need to consult with my clients -- my
22 colleagues. Sorry. I have revealed my background as Defence counsel
23 before I became a judge in my country.
24 There is no reason for us to intervene in any of the cases that we
25 have heard so far on the basis that the Prosecution abused of its right or
1 possibility to file ex parte filings. And there have been ex parte
2 filings also on the part of the Defence, incidentally, and also there we
3 do not see any reason -- we never saw any reason for intervening.
4 Yes, we filled the time and we're finishing five minutes before.
5 Yes, Mr. Nicholls.
6 MR. NICHOLLS: Maybe we can fill the five minutes. Your Honour,
7 just there were two exhibits with the witness that -- in the rush at the
8 end I neglected to tender, if could I do that now.
9 JUDGE AGIUS: Yes, it's our fault as well.
10 MR. NICHOLLS: The first is P0244 which is simply the pseudonym
11 sheet under seal.
12 JUDGE AGIUS: Yes. I take it that is admitted. No objections?
13 MR. NICHOLLS: And the second is number 1690, that was the one
14 photograph of the building which I showed to the witness.
15 JUDGE AGIUS: All right. Are there any objections? I hear none.
16 So that is also admitted.
17 Yes, Mr. McCloskey.
18 MR. McCLOSKEY: Just to help clarify one scheduling matter, we
19 had -- to take up the extra space, we had brought in for this week expert
20 Helga Brunborg on the demography and the missing. We have been in touch
21 with the Nikolic team on that and they are -- they have their own expert
22 and they have asked that it be direct examination only, which we have
23 agreed with, though -- and I believe the other Defence team are on board
24 with that. But I just wanted -- the plan right now, as far as we know, is
25 direct examination only for Mr. Brunborg, and so if everybody agrees we
1 will put that into the schedule.
2 JUDGE AGIUS: Okay. Thank you. What I suggest is the following,
3 Mr. McCloskey: First that you approach Mr. Josse in relation to Witness
4 170 and explain to him your position, supposedly to allay his concerns, as
5 you put it.
6 The second is speaking for myself, I am beginning to have some
7 kind of confusion in my mind as to the scheduling of witnesses for the
8 next two weeks or until we come to the break. If you could perhaps file
9 formally or informally a schedule of witnesses to be heard between now and
10 when we have the short recess starting on the 12th. All right? And we
11 are not sitting on the 2nd because that's maintenance, court maintenance
12 day. Thank you.
13 We will reconvene tomorrow in the afternoon at 2.15.
14 --- Whereupon the hearing adjourned at 1.44 p.m.,
15 to be reconvened on Tuesday, the 30th day of
16 January, 2007, at 2.15 p.m.