1 Wednesday, 4 April 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE KWON: Good morning to you all. Would you please call the
7 THE REGISTRAR: Good morning, Your Honours. This is the case
8 number IT-05-88, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE KWON: Thank you. Before we begin our today's business,
10 there's a matter in the course of yesterday's hearing that need to be
11 clarified. Yesterday, when Mr. Nicholls's question, whether the witness
12 was truthful when making his statement to the Prosecution was objected to
13 by the Defence, the Chamber allowed the question to be put to the witness
14 by a majority, with me dissenting. However, I feel obliged to comment
15 that it was a mistake on my part, and I would like to make it clear now
16 that the Chamber cannot make a decision if the opinions are split between
17 Judge Prost and me when sitting pursuant to 15 bis in the absence of Judge
18 Agius. Unfortunately, what happened happened, however I don't think that
19 raised a serious problem in the overall conduct of the trial.
20 Having said that -- I forgot to mention that today we sit pursuant
21 to 15 bis.
22 Now we turn to the issue which is before us. We have carefully
23 reviewed the submission made by the parties yesterday on the issues before
24 us. Let me first deal with two submissions advanced by Mr. Bourgon, with
25 regard to the conduct of the Prosecution.
1 In short, we do not find merit in these arguments. As to the
2 questioning of a witness regarding what the other party has discussed with
3 him or her, we see no reason why that is inappropriate or unethical. No
4 authorities in support of the proposition were provided, and it would seem
5 to be a practice entirely consistent with the concept that there is no
6 property in the witness, a principle which both parties agreed upon.
7 As to allegations that the witness was pressured by the
8 Prosecution, there is nothing in the description of the meeting provided,
9 or the information sheet that evidences any such pressure. In these
10 particular circumstances, reminding a witness of the need to need to tell
11 the truth when testifying cannot be construed as threatening or pressuring
13 We turn now to the most significant issue, which arises from a
14 question posed by Mr. Nicholls and objected to by the Defence. When
15 Mr. Nicholls seeks to adduce -- Mr. Nicholls seeks to adduce evidence as
16 to what the witness told him about seeing Drago Nikolic at the check-point
17 on the day in question, we have carefully reviewed the transcript of the
18 witness's evidence yesterday, in particular the two passages referenced by
19 Mr. Bourgon. That is, page 64, lines 11 to 17; and page 66, lines 14 to
20 22. We have also had regard to paragraph 10 of his previous statement.
21 We have come to the conclusion that both his testimony and his
22 prior statement are open to varying interpretation on the essential
23 question. While this Trial Chamber rarely intervenes in the questioning
24 process, in this particular instance, however, we have decided that it
25 would be appropriate for us to do so. Both parties have made reference to
1 possible fears that the witness might have and pressure which he might be
3 A good portion of the submission presented have centred on
4 meetings held by counsel for the Prosecution and counsel for the Defence
5 with the witness. In these special circumstances, we believe that it
6 would be in the interest of justice for the Chamber itself to clarify the
7 issue with the witness.
8 Therefore, the witness can be brought into the courtroom at this
9 time, and Judge Prost will question him on behalf of the Chamber on this
10 one issue. Draw the curtain and please bring in the witness.
11 [The witness entered court]
12 WITNESS: WITNESS PW-165 [Resumed]
13 [Witness answered through interpreter]
14 JUDGE KWON: Good morning to you, Mr. Witness.
15 THE WITNESS: [Interpretation] Good morning to you too.
16 JUDGE KWON: So I have to apologise to you again for the delay in
17 your testimony. As happens from time to time, we have been discussing
18 some procedural and legal questions relating to your testimony. We have
19 decided there is a part of your evidence which is not clear to us, and so
20 in this instance the Chamber is going to try and clarify the matter with
21 you. To that end, my learned colleague, Judge Prost, is now going to ask
22 you some questions. But please bear in mind that you are still under the
23 solemn declaration you took yesterday.
24 Questioned by the Court:
25 JUDGE PROST: Witness, yesterday you were telling us about what
1 happened while you were at the check-point near the school in Rocevic.
2 What is not clear to us is whether you yourself saw Drago Nikolic at this
3 check-point. So my specific question to you is, while you were at the
4 check-point that day, at any time, when these security officers arrived,
5 while they were parked there, or when they left, did you yourself actually
6 see Drago Nikolic?
7 THE WITNESS: [Interpretation] I personally did not see Drago
8 Nikolic. I saw another security officer though.
9 JUDGE PROST: And which other security officer did you see?
10 THE WITNESS: [Interpretation] Trbic.
11 JUDGE PROST: Okay. Yesterday, Witness, you said that you
12 recalled having a meeting with Mr. Nicholls from the office of the
13 Prosecution last week and talking to him about this part of the
14 statement. Do you remember that meeting with Mr. Nicholls?
15 THE WITNESS: [Interpretation] Yes.
16 JUDGE PROST: And at that time, in that meeting with Mr. Nicholls,
17 did you tell him that you, in fact, had seen Drago Nikolic at the
18 check-point that day?
19 THE WITNESS: [Interpretation] I said that when the vehicle went
20 past, Trbic came out and that there were other security officers there
21 with him. And what they told us, the orders they conveyed to us, we
22 discussed this, me and my colleagues.
23 [Trial Chamber confers]
24 JUDGE KWON: Mr. Nicholls, I think that's the farthest we can
25 reach, and I leave it in your hands. Now it's your witness.
1 MR. NICHOLLS: Thank you, Your Honours.
2 Examination by Mr. Nicholls: [Continued]
3 Q. Where exactly was it that you saw Trbic? At the check-point or
4 somewhere else?
5 A. Across from the check-point in the yard.
6 Q. School-yard?
7 A. Yes.
8 Q. And there was one colleague working the check-point with you. Is
9 that I think what you said yesterday. I just want to be clear on that.
10 A. Yes.
11 Q. And is it that colleague or somebody else who told you that Drago
12 Nikolic had come through and was with Trbic?
13 A. That colleague said security officer Trbic and Drago Nikolic, but
14 I saw Trbic but I didn't see Nikolic. But that's what we were talking
16 Q. All right. I'm going to move on.
17 I'm going to ask you, you said yesterday you stayed there until
18 about 5.00 p.m. I just want you to think about that. Is that right or
19 could it have been earlier or later that you left the check-point?
20 A. Well, thereabouts, 1700 hours, because afterwards I went to the
21 hospital and at around 1830 hours I was already at the brigade
22 headquarters. That's the amount of time I needed to get to the hospital
23 and back to the headquarters.
24 Q. All right. And very briefly, without mentioning any names, tell
25 us why you went to the hospital, just so that the Chamber knows.
1 A. Well, my wife was there. She was nine months pregnant, and she
2 went for a medical check-up before giving birth, and I escorted her and
3 then went to the centre of town where I lived.
4 Q. All right. And when you say you went to the headquarters, just
5 for clarity, that's Zvornik Brigade headquarters, correct?
6 A. Yes.
7 Q. Okay. Now, when you got to the Zvornik Brigade headquarters, what
8 did you do?
9 A. Well, I reported to the commander to tell him that I had arrived,
10 and in the premises I found the company. I said that I had arrived, and I
11 came across several of the staff from our company and two colleagues from
12 the company.
13 Q. Did you see any security officers at Standard, at the Zvornik
14 Brigade headquarters that evening?
15 A. Well, that evening, when I arrived, when I arrived to the premises
16 of our company, up the stairs there were a few people walking around, and
17 they were wearing camouflage uniforms and I saw their backs and I asked
18 who that was and one of them said, "Well, the commander has a meeting with
19 Popovic and Beara."
20 Q. Okay. Now, at that time did you know who Popovic was? Think
22 A. At the time I personally did not know who Popovic was. And I told
23 you that the first time as well. But from the back and the front I saw
24 that he had a moustache, and after 1998, when I said on those panorama
25 things that I saw that it was that same Popovic person.
1 Q. What is this Popovic person's first name?
2 A. Well, Vujadin Popovic. That's what I remember the name down there
3 from the warrant.
4 Q. And what was Vujadin Popovic's position in July 1995? You know,
5 what was his job, put it that way.
6 A. Well, I knew and I heard that this man Popovic was a security
7 officer of the -- could the Court --
8 THE INTERPRETER: Could the witness repeat the name of the corps.
9 MR. NICHOLLS:
10 Q. The interpreters are asking you if you could repeat the name of
11 the corps that Vujadin Popovic was a security officer in.
12 A. The Drina Corps, to which the Zvornik Brigade belonged as well.
13 Q. Now, when you were an MP in the Zvornik Brigade in July 1995, and
14 you've told us about how you had duties at the Zvornik Brigade
15 headquarters, did you know in July 1995 that Vujadin Popovic was a
16 security officer for the corps?
17 A. I don't understand the question. How do you mean security officer
18 for the corps?
19 Q. You've told us that Vujadin Popovic, you said, "I heard that this
20 man Popovic was a security officer," and then you said for the Drina
21 Corps. When did you know that? Did you know that in July 1995 when you
22 had been an MP for a year and a half?
23 A. Well, I can't say exactly. I knew it a little before that,
25 Q. Little before when?
1 A. Two or three months, perhaps, earlier.
2 Q. Earlier than July 1995?
3 A. Yes.
4 Q. And did you know Vujadin Popovic by sight in July 1995? I'm not
5 asking if you played cards with him, if you visited his house. I'm asking
6 if, you know, if he came through the gate at Standard, did you recognise
7 him and know who this was, or would you have checked his ID and, you know,
8 searched him?
9 A. Well, most probably if he were to pass by me and I were at the
10 gate or at the hut at the gate, well, I didn't know him, nor did I know
11 him close up, so I probably would have checked to see whether that was the
12 man Popovic and then I would personally know that it was or not.
13 Q. Okay. Now, when you saw -- when you were at the brigade
14 headquarters that night, we're talking about -- and you talked about
15 hearing that this security officer Popovic was there, were you able to
16 see -- you said you saw his moustache. Did you see clearly Vujadin
17 Popovic at the brigade that night? And please try to think carefully
18 about this and answer carefully. And if you need help remembering, again,
19 if you think it will help you, I can show you your statement where you
20 talk about this. Statements, I should say.
21 A. Well, at that point in time, when I was in the hallway, up the
22 stairs, upstairs, from the left as he was walking up the stairs, I saw
23 that side of his face, from the left side, and I saw the moustache. He
24 was a tall man wearing a camouflage uniform. Whether it was an overall or
25 in two parts, I can't say, but that's what I saw with the moustache.
1 Q. Okay. And you said he was with somebody named Beara. Did you
2 know this person Beara at that time, in July 1995?
3 A. No, never. Nor did I ever see him. He was never close to me.
5 Q. And what were you told, you started to tell us, that Vujadin
6 Popovic and this person who you were told was Beara were doing at the
7 Zvornik Brigade headquarters that night up the stairs?
8 A. Yes, well, my colleague said they had a meeting with the
9 commander. So we were talking about this and made some noise. And the
10 commander said, "What do you need to know who's up there, none of your
11 business." So he stopped us talking and we quietened down. And the
12 commander at that time was Obrenovic. He was performing the duties of the
14 Q. Which commander was he, when you said the commander said, "Quiet
16 A. The commander of the military police company. I apologise.
17 Q. Miomir Jasikovac?
18 A. Yes.
19 Q. And --
20 A. Yes.
21 Q. So this is the same day that you are performing duties at the
22 Rocevic School, you've said it's the only day you ever performed duties at
23 the Rocevic School, it's the same night, that's the night we're talking
24 about that Popovic and Beara are meeting with the commander and you're
25 told to be quiet. Is that right, just for clarity, all the same day here?
1 JUDGE KWON: Mr. Ostojic.
2 MR. OSTOJIC: I object to the form of the question, Mr. President,
3 because he had clearly said he was told about Beara. The question seems
4 to imply that he may have seen him when he did not. He clearly testified
5 that he was just told that, never saw him before. So I think the question
6 is not properly placed. And I object as to the form of the question.
7 JUDGE KWON: That can be rephrased, Mr. Nicholls. Without
8 affecting the content of the question.
9 MR. NICHOLLS:
10 Q. Just to be very clear, this meeting that you've heard about is
11 on -- we're all talking about one day here, correct, it's the same day,
12 the same night?
13 A. Yes.
14 Q. And as far as you were told, just to be clear, because of the
15 objection, Vujadin Popovic and this person who you were told Beara, you
16 said, were there to meet with who? Who were they meeting with?
17 A. Well, my colleagues said that they had a meeting with the
18 commander. And during that time the acting commander was Colonel
19 Obrenovic, or Lieutenant-Colonel Obrenovic, while the main commander was
20 absent. So that's probably it.
21 Q. So your understanding was the meeting was with the commander of
22 the Zvornik Brigade at that time?
23 A. Yes. The commander of the Zvornik Brigade that was replacing
25 MR. NICHOLLS: No further questions at this time.
1 JUDGE KWON: Thank you, Mr. Nicholls.
2 Mr. Zivanovic, you will begin your cross-examination. Thank you.
3 MR. ZIVANOVIC: Yes, Your Honours.
4 Cross-examination by Mr. Zivanovic:
5 Q. [Interpretation] Good morning, Witness. Witness, can you confirm
6 that you met me on two occasions as well as with members of my team?
7 A. Yes.
8 JUDGE KWON: Before you go further, I would like to let you know
9 that Mr. Zivanovic is representing Mr. Popovic.
10 Please go on.
11 MR. ZIVANOVIC: Thank you.
12 Q. [Interpretation] Tell me, please, you do recall that on that
13 occasion I told you, and put it to you, that -- what you said in your
14 statement given in the year 2000?
15 A. Yes, I do remember.
16 Q. Among other things, do you remember -- do you remember me --
17 telling me about the contents of your statement with regard to Vujadin
19 A. Yes, I do.
20 Q. Is it true that on that occasion you told me that at the time of
21 making the statement you didn't tell the Tribunal investigators that you
22 knew Vujadin Popovic at all?
23 A. Yes, I said that at that time I didn't know him personally but
24 that I got to know him from the panorama and from the warrant.
25 Q. Do you remember telling me on that occasion that you never saw
1 Vujadin Popovic in Zvornik but you only heard that he had a meeting?
2 A. Yes, that they had a meeting and that they went upstairs.
3 Q. Now, let me be quite clear. You said that on that occasion you
4 didn't see Vujadin Popovic at the Zvornik Brigade headquarters?
5 A. Not the whole figure, but I saw him from the left side on the
6 stairs, and then in 1998, 1999, I remember that that was the person in
8 Q. But when you talked to me, you didn't even tell me that you saw
9 him in part. Is that correct?
10 A. Yes, we discussed the hall and the stairs, and I said that I saw
11 his left side, and that I didn't see this other person. I think that's
12 what I said.
13 Q. I know, and fortunately I wasn't alone, I remember you saying that
14 you didn't see him at all, but things do change and probably your memory
15 has changed.
16 Tell me one more thing now. You gave your statement in 2005,
17 which means 10 years after all the events?
18 A. Yes.
19 Q. It is only natural for a person to match their memories or to
20 split it into several days. Tell me, as much as you can remember that
21 particular day that you gave your testimony about, how well do you
22 remember all these details, and how reliable is your recollection of this
23 one single day?
24 A. I have to try and say, but I must say that 75 per cent of my
25 memory is not serving me well.
1 Q. Upon your arrival in The Hague, you had an interview with the
3 A. Yes.
4 Q. I noticed inter alia that you had been asked about an event which
5 took place in 1992. Do you remember that?
6 A. I was just asked about this by Mr. Prosecutor, and I don't think
7 there is any need for us to discuss it now.
8 JUDGE KWON: Mr. Nicholls.
9 MR. NICHOLLS: I just want to ask my colleague, I see that there
10 is a witness statement on his exhibit list, if he's going to show that or
11 go into it. I think because of the nature of it, it should be in private
12 session and if we need to talk about why, we need to go into private
14 JUDGE KWON: Thank you.
15 MR. NICHOLLS: But I think my friend may agree that it's, because
16 of the sake of the declarant of that witness statement, it would be better
17 not to use the name or go into it in open session.
18 JUDGE KWON: Thank you.
19 Mr. Zivanovic.
20 MR. ZIVANOVIC: [Interpretation] I am not going to use the report
21 submitted to us. I only mentioned it in another context that I'm going to
22 question the witness about.
23 JUDGE KWON: Yes. Please proceed.
24 MR. ZIVANOVIC: [Interpretation]
25 Q. On that same occasion, when you were asked about this statement
1 and when a statement given by a Muslim person was shown to you, did you
2 also discuss this event on that occasion?
3 A. Which event are you referring to, the one from 1992?
4 JUDGE KWON: Mr. Nicholls.
5 MR. NICHOLLS: I just want to be clear, this may help my friend,
6 if it wasn't clear in his statement. He was not shown any witness
7 statement of anybody else.
8 JUDGE KWON: The Chamber was not able to follow either. Shall we
9 go into private session and show the witness the statement?
10 MR. NICHOLLS: He's never seen the statement. That's just what I
11 was trying to clarify, and I don't think necessarily that he needs to. I
12 think my friend was going to ask him questions about the event without
13 showing it to him.
14 JUDGE KWON: I see. Thank you.
15 MR. ZIVANOVIC: [Interpretation] I would kindly ask that we move
16 into private session.
17 JUDGE KWON: Yes.
18 [Private session]
11 Page 9971 redacted. Private session
11 [Open session]
12 JUDGE KWON: Yes, we are now in open session.
13 MR. ZIVANOVIC: [Interpretation]
14 Q. On that day that you mentioned, you received an order to go to the
15 school in Rocevici and to carry out the duties that you have been
16 describing. Can you please tell me, in your statement you said that you
17 left the check-point at around 1800 hours. Here you said 1700 hours. Is
18 the time that you mentioned in the statement correct, or is it the one
19 that you said today correct?
20 A. I think I said in my statement that it was around 1700 hours
21 because it was impossible for me to reach Zvornik -- or headquarters from
22 Zvornik in such a short lapse of time.
23 Q. Can you please now take a look at your statement, that's 3D97,
24 item 11. That's on page 3. 0465-3512.
25 Can you please read item 11 where you say, "At 1800 hours I left
1 the check-point and went to the hospital in Zvornik," and so on?
2 A. Yes.
3 Q. Therefore, you can see that you said, "At 1800 hours." Was your
4 memory more fresh at the time, or today?
5 A. Well, 1730 or 1800, it makes no difference. There is a long
6 distance to Zvornik.
7 Q. Well, the question was when you left the check-point, not how many
8 kilometres there were and how many -- how much time it took.
9 A. Well, I may have said 1800 hours or 6.00.
10 Q. Can you tell me now how you left the check-point? Did you have
11 your own car?
12 A. I hitchhiked from the main road.
13 Q. On your own?
14 A. Yes, I left on my own.
15 Q. Did you ask anybody's permission to leave?
16 A. The military police commander, Miomir Jasikovac, when he gave me
17 an order on that day, I told him that I had to go to the hospital in the
18 evening. He said, "Go there and be there until 1800 hours and then go to
19 the hospital and after that report to the HQ," and that's what I did.
20 Q. Thank you. On that occasion when, as you said, you had seen
21 Popovic at the brigade HQ, you mentioned another four persons being
22 there. You can take a look at item 3 [as interpreted], where their names
23 are listed.
24 A. Yes.
25 Q. I had an opportunity to read the statements given by these
1 individuals, and not a single one of them has confirmed this part of your
2 statement that you are talking about.
3 A. Everyone is responsible for their statements. I have no knowledge
4 about their statements.
5 Q. Yes, everybody makes their own statements, and everybody has their
6 own memory.
7 A. That's right.
8 JUDGE KWON: So item 3 should read "item 13." Thank you.
9 MR. ZIVANOVIC: [Interpretation] I kindly ask this to be
10 rectified. I referred the witness to item 13, not 3. But I think he did
11 understand me, that he looked at it.
12 Q. Is that right, Witness?
13 A. Yes, yes. I've seen them.
14 Q. You were looking at paragraph 13, it was mistranslated as
15 paragraph 3?
16 JUDGE KWON: Yes, Mr. Nicholls.
17 MR. NICHOLLS: I'm sorry, no objection. I think my friend just
18 needs to wait a minute before he asks his next question. Because as I can
19 hear it, he's asking questions as soon as the witness finishes and the
20 translation may not be as accurate as it could be.
21 JUDGE KWON: Thank you for your intervention. I have nothing to
22 do then.
23 Mr. Zivanovic.
24 MR. ZIVANOVIC: [Interpretation]
25 Q. Let me ask you one more thing. You said in your first statement
1 that you knew Vujadin Popovic very well. If you wish you may take a
2 look. It's item 12 of your statement where you say that you had seen
3 security officer Vujadin Popovic, who you knew very well.
4 A. We discussed this, and with Mr. Nicholls, the Prosecutor, I
5 considered this matter that has been noted down as such, but I knew him
6 only after 1998 and 1999, after I recognised him from the warrant. And I
7 realised that that was the person from the year 1995, and I think that
8 Mr. Nicholls acknowledged that.
9 Q. In other words, only after you had seen the warrant you remembered
10 that it might have been the person you saw in 1995; is that correct?
11 A. Yes. I discussed that with the gentleman in question, and we
12 considered this.
13 Q. Thank you.
14 MR. ZIVANOVIC: I have no further questions.
15 JUDGE KWON: Thank you, Mr. Zivanovic.
16 Who will be the next?
17 MR. OSTOJIC: I will, Mr. President.
18 JUDGE KWON: I leave it in the hands of Defence counsel, but I
19 take it that we can finish the cross-examination by today?
20 MR. OSTOJIC: It seems that we would be able to, Your Honour.
21 JUDGE KWON: Thank you. Go ahead, please.
22 Cross-examination by Mr. Ostojic:
23 Q. Good morning, Mr. Witness. Sir you mentioned on your direct
24 examination that a colleague told you about this purported meeting
25 upstairs in the Zvornik Brigade. Can you tell me which colleague or
1 colleagues told you that?
2 A. Well, I don't remember the military police colleagues. I know
3 they were there. The administrative staff was there. But they didn't
4 talk about that. It was the colleagues, the other ones.
5 Q. What I would like to know, sir, is which colleague or colleagues
6 told you this information that you claim to have remembered 10 or so years
7 after the events that upstairs there were some security officers in the
8 Zvornik Brigade headquarters?
9 A. Well, I can't remember the colleagues because one person would be
10 there one day and wouldn't be there the next. They kept changing.
11 Q. Okay. Now, on page 12, line 11 of today's transcript when you
12 were asked by my learned friend about Mr. Popovic, you also added that you
13 did not see this other person. Is that correct, sir? And the other
14 person we're referencing is the claim that your colleague told you that
15 possibly Mr. Beara was there, correct? Is that who the other person is?
16 A. Yes.
17 JUDGE KWON: Mr. Nicholls.
18 MR. NICHOLLS: I don't think that reflects what the witness said.
19 He is now reading back to him the -- as what he said. The -- what the
20 witness said, to my recollection, was that he was told that this other
21 person was Beara, not this -- there was no "possible" thrown into the
22 witness's answer to that question.
23 JUDGE KWON: Yes, but shall we look at...
24 MR. OSTOJIC: Page 12, line 11 I was referencing, Your Honour.
25 JUDGE KWON: "I said that I saw his left side and that I didn't
1 see this other person."
2 MR. OSTOJIC: And I'm clarifying who he was referencing when he
3 said he didn't see this other person.
4 MR. NICHOLLS: The way he phrased his question was, "When you were
5 told by your colleague that there was this possible Beara," and when the
6 witness answered the question at line 6, 20, he said, "Well the commander
7 has a meeting with Popovic and Beara." That was his answer about who the
8 meeting was with.
9 JUDGE KWON: I think Mr. Ostojic is trying to clarify who that
10 person was that he didn't see at that time when he saw Mr. Popovic
11 climbing up the stairs.
12 Let's proceed.
13 MR. OSTOJIC: That's correct.
14 Q. The person -- if I could just put the question to him again, if I
16 JUDGE KWON: Yes, please.
17 MR. OSTOJIC:
18 Q. The person that you mentioned that you did not see, the other
19 person on page 12, line 11, that was the person that you were told by
20 someone else, whose name you don't know, that that was purportedly
21 Mr. Beara, correct?
22 JUDGE KWON: Could you -- could you read that part again to the
23 witness, although witness already confirmed that --
24 MR. OSTOJIC: Twice now, but I will. The question and the answer,
25 Mr. President?
1 JUDGE KWON: Yes. Would you do that, please. Read the transcript
2 correctly and then confirm with the witness again, please.
3 MR. OSTOJIC:
4 Q. Mr. Witness I'm just trying to clarify. I know you've given us an
5 answer and I apologise for that. On page 12 of today's transcript you
6 were asked by my learned friend from the Prosecutor starting on line 8, he
7 states, "But when you talked to me you didn't even tell me that you saw
8 him in part; is that correct?" Your answer, sir, which commences on line
9 10 was, "Yes, we discussed the hall and the stairs and I said that I saw
10 his left side and that I didn't see this other person. I think that's
11 what I said."
12 Focusing on your answer that you gave on line 11 of page 12, "that
13 I didn't see this other person," that other person is supposed to be, at
14 least according to the Prosecutor, what you were told by some unknown
15 person to be Mr. Beara, correct?
16 A. First of all, you now mentioned that I talked to you. As I
17 understand it, I didn't talk to you except now. You are just asking me
18 something now. Now, this colleague conveyed to me that up the stairs was
19 Popovic and Beara, and that's what I said.
20 Q. And you never saw this --
21 JUDGE KWON: For clarification, that question was put, in my
22 memory, by Mr. Zivanovic.
23 MR. OSTOJIC: Fair enough, Your Honour.
24 JUDGE KWON: Not by the Prosecutor.
25 MR. OSTOJIC: Fair enough, Your Honour.
1 Q. Sir, and just do clarify that, you never met with me or any of the
2 Beara Defence team members, correct, at any time?
3 A. That is correct, yes.
4 Q. Also, sir, on page 9, lines 4 through 5, you state that you never
5 saw -- let me just get the cite for you here. You state that you never
6 saw him before, and the person you're referencing there is Mr. Beara,
7 correct? You never saw him before, during that purported visit, or after
8 that visit. Is that correct?
9 A. Yes, that is correct. I never saw him, neither before nor
11 Q. Nor during that purported meeting at the Zvornik Brigade
12 headquarters, correct?
13 A. I've already said that, yes, that is correct.
14 Q. Well, I just want to clarify it, sir. Thank you.
15 Let me ask you this just for the record so that it's clear. How
16 many meetings did you have with the Office of the Prosecutor? And I have
17 them written down here as your first meeting was March -- or November 26,
18 2005, it was an interview which you signed that interview. Then you had
19 one March 22, 2007, which was a short meeting and you signed that
20 interview. And then according to the information that we have from the
21 Prosecutor, you met him on two occasions after that, or more, sir?
22 A. Yes, the first time was (redacted)
23 (redacted) and I had the chance of meeting him. And the other
24 statement I gave through my Ministry of Defence, two of them. Once I met
25 with the Prosecutor here in preparing, that's all.
1 JUDGE KWON: Mr. Nicholls.
2 MR. NICHOLLS: Just to be cautious, could we have a redaction of
3 lines -- the second sentence starting at 23/16.
4 JUDGE KWON: We are considering that matter.
5 Let us proceed.
6 MR. OSTOJIC: Thank you.
7 Q. So I am only focusing on the interviews or the meetings that you
8 had with the Office of the Prosecutor and Mr. Nicholls, my learned friend,
9 regarding your testimony here. I have it that in the last two weeks or so
10 you met him on three occasions: March 22nd, March 23rd, and the 29th of
11 March, 2007. Is that accurate or did you meet him more than on those
12 three occasions?
13 A. Well, I met him up there two or three times. I've been a long --
14 many days so I don't quite remember. But we didn't discuss these topics
15 here. It was just the first day that we discussed these topics.
16 Q. Okay. And that would have been March 22nd, 2007. I'm just
17 curious to know why the Prosecutor, if you know, Witness, would have, on
18 the 22nd, have you sign a statement but if there were any other changes or
19 modifications to your statement, given your testimony here yesterday and
20 today, on the 23rd or the 29th, why didn't they have you sign another
21 statement? Do you know?
22 JUDGE KWON: Mr. Nicholls.
23 MR. NICHOLLS: I object to that. There is --
24 JUDGE KWON: Whether -- it is for the witness to answer the
1 MR. NICHOLLS: Yes. There is no way he could know what was in my
2 mind and why I make -- I don't always know why I make the decisions I
3 make. There's no way he can.
4 JUDGE KWON: Mr. Ostojic, could you rephrase the question.
5 MR. OSTOJIC: I will.
6 Q. Sir, did you at any time given that the 22nd of March, 2007 you
7 signed this supplemental or interview statement, did you at any time on
8 the 23rd of March, 2007, refuse to sign a supplemental information sheet
9 or additional data that Mr. Nicholls and you may have talked about on that
10 day? Did you refuse to sign that?
11 A. Well, I don't remember that I needed to sign anything on that
12 day. I don't know about that.
13 Q. And the same answer would hold true for the 29th of March, 2007,
14 correct, sir, when you met with the Prosecutor and you gave us another
15 what they call information report, you weren't asked to sign that, were
17 A. I don't remember. I don't think I signed anything else.
18 Q. You haven't, from our information. And you didn't refuse to sign
19 anything, did you, sir?
20 MR. NICHOLLS: He's answered that.
21 MR. OSTOJIC: It's in reference to specifically the --
22 JUDGE KWON: On this, yes. Please go on.
23 MR. OSTOJIC:
24 Q. And you didn't refuse to sign anything on the 29th of March, 2007,
25 did you, sir?
1 A. Well, I don't know. I can't really remember that I signed
2 anything. Really, I don't.
3 Q. That's fair, sir. Let me ask you one other question on this point
4 on your meetings with the Office of the Prosecutor that you may have had.
5 At any time did you refuse them, if they made such a request, to tape
6 record the meetings or interviews that they may have had with you on the
7 23rd of March or the 29th of March of this year? Did they ever offer to
8 tape record so that we could get the sum and substance of what happens at
9 those meetings? Did they ever offer to tape record their meetings with
11 A. No, nobody ever offered me anything, offered to tape anything or
12 record anything or anything.
13 Q. Sir, can you share with us, when you told us on page 12, that 75
14 per cent of your memory is not serving well, can you expand on that,
15 please? And I believe it commences on lines 19 through 23. But also 24
16 and 25, according to my notes.
17 A. I said that 75 to 80 per cent of my memory does serve me, still
18 serves me, not that it does not serve me. That my memory serves me to the
19 extent of between 75 and 80 per cent.
20 Q. And it serves you, sir, with respect to the events that happened
21 12 years ago, you remember this specific one incident. Is that correct?
22 A. Well, yes. That's what I said.
23 Q. That's all the questions I have. Thank you, Mr. Witness.
24 JUDGE KWON: Thank you, Mr. Ostojic.
25 Mr. Bourgon.
1 MR. BOURGON: Thank you, Mr. President.
2 Cross-examination by Mr. Bourgon:
3 Q. Good morning, Witness.
4 A. Good morning to you too.
5 Q. I have a few questions for you today which relates to your
6 testimony when you were asked to go to the Sepak border crossing. My
7 first question to you is simply that this border crossing in Sepak, in
8 terms of its location, would I be right in saying that this was on the
9 northern side of Rocevic School, approximately eight to 10 kilometres?
10 A. Yes, from Rocevic down the Drina River about eight to 10
11 kilometres towards Bijeljina.
12 Q. Now, if I can have the exhibit which was used by the Prosecution
13 yesterday, and that was P2494. Oh, but the one that was marked by the
14 witness is better, and I'm given another number here, which would be
15 0083. IC, IC00-0083, marked map. If we could have this on e-court,
17 Now, Witness, I'm just going to ask you to look at this map which
18 will appear in front of you, and simply if you can indicate where this
19 Sepak border crossing is, if you can see it on that map.
20 While we wait for this I'll go to my next question to try and save
21 some time. The phone call that you received that day, you were personally
22 on the phone with Jasikovac; is that correct?
23 A. Yes.
24 Q. And would I be right to say that Jasikovac at that time was in the
25 Zvornik Brigade command, and that is in the Standard. Is that correct?
1 A. Well, I don't know where it was. He had to call me from
2 somewhere. It needn't have been from the Standard.
3 Q. So it could have been in another location?
4 A. Yes, that's right.
5 JUDGE KWON: Mr. Bourgon, the map is before us.
6 MR. BOURGON: Thank you, Mr. President.
7 Q. Witness, now we now have the map on the e-court, and yesterday you
8 indicated with an arrow pointing one side with a Z towards Zvornik and one
9 side with a B towards Bijeljina. Can you indicate first on which side
10 towards Bijeljina is the Sepak border crossing and if you can indicate on
11 this map, the furthest you can, in which direction is the Sepak border
13 JUDGE KWON: Madam Usher will assist you in marking.
14 THE WITNESS: [Interpretation] You can't see Sepak on the map here.
15 MR. BOURGON:
16 Q. I understand, Witness, that it cannot be seen here, but the
17 furthest away from -- on the map, the first point in the direction of
18 Sepak, if you can indicate and make a circle there, and put -- write the
19 word actually "towards Sepak."
20 A. If you take this road and go further down some five kilometres
22 JUDGE KWON: Could you mark the direction on the map?
23 THE WITNESS: [Marks] It's this road indicated by the arrow,
25 MR. BOURGON:
1 Q. Thank you, Witness. Now, I have one more question concerning this
2 map that is in front of you. Yesterday I asked a question, but it wasn't,
3 in my -- I'm not sure if it was clear. Where you have the school circled,
4 you know where I'm talking about where you have a circle around the
5 school. You can see that?
6 A. Yes.
7 Q. Now, just beside, we see a main road that goes towards Dolina. Do
8 you see that main that main road with red and white?
9 A. You mean the one above the school?
10 Q. I'm talking the main road, because there is a -- there is a main
11 intersection. If I say there is the main road that goes from Zvornik
12 Brigade, that's one road; but then there is a T junction and we see there
13 is a road that goes towards Dolina.
14 Now, my question is simply if you can confirm that this main road
15 is not the road that you were in when you were close to the school.
16 A. Main road, it is not; but the junction which leads upwards towards
17 the school 300 to 400 metres, that's where I mean. That's where we were.
18 Q. Thank you, Witness. We'll see it better in another exhibit I am
19 going to use. That is correct for this exhibit, if you can just sign
21 MR. BOURGON: And if we can save it again with the new markings --
22 JUDGE KWON: Would you write the date.
23 MR. BOURGON: -- as a Defence exhibit, and the date being the
24 4th --
25 JUDGE KWON: 4th of April.
1 MR. BOURGON: -- April, 2007.
2 JUDGE KWON: Would it be okay?
3 MR. BOURGON: That's correct with me, Mr. President.
4 JUDGE KWON: Will it be too long or can it be saved? I'm asking
5 the court deputy. That's fine. Thank you. We'll save it as a separate
6 Defence Exhibit and proceed, Mr. Bourgon.
7 MR. BOURGON: Thank you, Mr. President.
8 Q. Now, when you arrived that day in Rocevic, after getting the
9 instructions from your commander, my understanding is when you arrived
10 your fellow military policemen from Z brigade were already present there.
11 You arrived after them; is that correct?
12 A. Yes.
13 Q. And you yourself, throughout your stay there, you never came close
14 to the school itself. Is that so?
15 A. Yes, that is correct. That's the orders we received, because
16 there were other soldiers there providing security. There were just three
17 to four of us who controlled the cars and the valley.
18 Q. Now, that's exactly what I wanted to ask about is the other
19 soldiers that you see at the school. Now, you did mention yesterday in
20 your testimony that you did not know these soldiers. What I would like to
21 know is, I believe that as a military policeman, you see many people in
22 Zvornik Brigade. So to you were these soldiers from Zvornik Brigade?
23 A. Well, probably not, because I would have recognised some of them
24 if they had been.
25 Q. Now, these soldiers that were there, it is also my understanding
1 that it was made clear to you, and I suggest that this is the case, it was
2 made clear to you not to come close to the school, that they were handling
3 the business there. Is that correct?
4 A. Yes, that is correct.
5 Q. And according to your statements, you left that -- the school
6 towards the end of the afternoon, whether it's 17 or 18, my question is
7 more that the visit that you saw from those security officers. Is it
8 closer to the beginning of your arrival at the school, or closer to the --
9 to your departure from the school? When did that take place?
10 A. Well, I don't know the exact time, but between that period. Well,
11 it was in between somewhere during that period, but I can't say exactly.
12 Q. So in between, if you arrived around 1.00 and you left, according
13 to your statement, around 6.00, so somewhere around 3.00, would that be
14 correct? Would that be a good reference point?
15 A. Well, it might have been, but I can't say exactly when the time
17 Q. Thank you, Witness. Now, you and your fellow military policemen,
18 you mentioned in your testimony that there was one colleague with you at
19 some kind of a check-point, and that the others were close to the yard.
20 Do you remember a coffee shop close to the school or close to the
21 place where you were?
22 A. I don't remember that there was any coffee shop. All I remember
23 is that there was a house there nearby, next to us.
24 MR. BOURGON: I'd like to have on the e-court, please, an exhibit,
25 and this is 3D100.
1 Q. Witness, I will show you the -- a map of the location of the
2 school, and maybe first I should ask you if you recognise this as being a
3 map of the location of the school. So on the e-court before you, you have
4 a sketch, and I'd ask you if you recognise what this sketch represents.
5 A. Well, I can see a sketch of the school and the by-road leading off
6 from the main road.
7 Q. Now, just to clarify, a bit earlier I asked you about that main
8 road going to -- let me first ask you. With the assistance of the usher,
9 can you indicate with a circle the general area where you stood that day?
10 A. [Marks]
11 Q. Now, this road that we see here where you are, I just want to
12 confirm to you that the other road we see going north, the other road that
13 is to the left of that one going north, that's the main road that you
14 indicated that you were not on, on the other map. Is that correct?
15 Tell me if the question is not clear, because I'm not sure if my
16 question is clear.
17 A. Yes. I'm not clear on what you're asking me, what you mean to
19 Q. If you look at this --
20 JUDGE KWON: I think the word "main road" may confuse the witness.
21 Thank you.
22 MR. BOURGON: Thank you, Mr. President.
23 Q. If you look on the map, there are two roads going -- I will see --
24 there is a road on the left side of the map with an arrow on it going
25 down. Do you see this road?
1 A. You mean this road here? I see that, yes.
2 Q. The one with the arrow pointing down at the left of the map.
3 Maybe you can circle that arrow to indicate that you see that road, so
4 that we are on the same road.
5 A. [Marks]
6 Q. Yes. Now --
7 A. Yes.
8 Q. -- I'm just asking you whether this road was the main road that we
9 saw on the map with the colour red and white?
10 A. I don't think so. It wasn't such a sharp bend. It should have
11 been straight.
12 Q. Okay. I'll leave it at that, and we will work with this.
13 Now, the house that you mentioned a little earlier as being close
14 to the school, can you circle that house and put simply H, the letter H
15 beside that?
16 A. [Marks]
17 Q. So is that the house where your fellow military police stood? Is
18 that the one?
19 A. You said H for school, where the school was, so I put an H and
20 made a circle around it on the road where we were at.
21 Q. Okay. I'm sorry. Maybe there was a mistake in the word I used.
22 I wanted you to indicate the house where your fellow military policemen
23 were at, the ones that were not at the -- on the road with you.
24 JUDGE KWON: Before that, if we could delete the H in the circle.
1 MR. BOURGON: It's magic.
2 THE WITNESS: [Interpretation] We were not in the house. We were
3 outside. Two were on the road, and two were around the yard, checking.
4 We didn't go to any house. There was just a house near us or next to us.
5 MR. BOURGON:
6 Q. Can you indicate which house this is, if you can see it on that
8 A. The house was next to us, but it says here a shop. There was no
9 shop open at the time.
10 Q. So you don't see on this sketch the house -- so the house where
11 your fellow military policemen were, I guess, was -- is not indicated on
12 this drawing. Is that correct?
13 A. Yes, you can't see it.
14 Q. Thank you. I'll move on to my next question.
15 Would I be correct in saying that your duties that day, you
16 yourself, that was -- there was no difference in your duties compared to
17 the tasks that were assigned to the other military policemen who were
18 there? Is that correct?
19 A. I don't think so. We received one order from one person.
20 Q. So you were all doing the same thing; that's my point.
21 A. Yes, we took shifts or turns.
22 JUDGE KWON: Mr. Bourgon, are you done with this sketch?
23 MR. BOURGON: No, Mr. President. I would like to keep it there.
24 I will probably use it for something else.
25 JUDGE KWON: Thank you. My question is whether Madam Usher should
1 be standing there all the time.
2 MR. BOURGON: Well, maybe I will make one more indication, and we
3 can close this map.
4 Q. Witness, can you indicate -- make -- is it possible to use another
5 colour of pen? And if we can indicate simply, put an H to the location
6 where that house was, to the best of your knowledge.
7 JUDGE KWON: But before that, can you clarify, I took it that the
8 witness meant to say that the house was there, but it is expressed as shop
9 now. Could you clarify with the witness?
10 MR. BOURGON: Yes.
11 Q. Where it says, "Shop," forget the fact whether it is a shop or
12 not, is it the house that we're talking about or is it another house?
13 A. After so many years, maybe ten, new houses may have been built in
14 the meantime. At the time it was a shop, and shops open and close.
15 Q. Okay. So just indicate where the general location of that house,
16 where you stood, was.
17 A. Then I will mark it where the shop is now. It wasn't a shop at
18 the time.
19 Q. Thank you. That's what I wanted --
20 A. It was a house, with the letter H.
21 Q. Yes.
22 A. [Marks]
23 Q. And the yard that you described in your testimony earlier, can you
24 just make a big circle around the yard of the school that you referred to
1 A. This is the yard, and the training ground is up here.
2 Q. Thank you, Witness. If you can just indicate the number 165, and
3 then we can close it, and the date also; 4 April 07?
4 JUDGE KWON: Mr. Nicholls.
5 MR. NICHOLLS: Could I just ask if my friend knows, because of the
6 question about this diagram and houses and shops, where it's from and if
7 he knows when it was done, what the source is.
8 JUDGE KWON: Could you clarify, Mr. Bourgon?
9 MR. BOURGON: Yes. This was done by the authorities, and it was
10 done two weeks ago, on scale.
11 JUDGE KWON: Authorities being?
12 MR. BOURGON: Municipality authorities that we contacted to get it
13 done two weeks ago or thereabouts, and it was done on scale and it was
14 done using the proper equipment to be on scale.
15 JUDGE KWON: Thank you.
16 JUDGE PROST: On scale as it presently is, or were they using
17 records from the time period in question?
18 MR. BOURGON: My understanding is from the existing, today, using
19 equipment today.
20 Does that satisfy my colleague?
21 MR. NICHOLLS: Yeah. And if you know, municipality authorities,
22 what exactly is -- is this a particular department or do you have any more
23 information on what this is?
24 MR. BOURGON: I can provide that information later on, if my
25 colleague wants.
1 JUDGE KWON: Thank you.
2 Witness --
3 MR. BOURGON: I'm surprised the Prosecution didn't do this before,
4 but that's not the question.
5 JUDGE KWON: -- could you kindly put your name and the date on
6 this map.
7 THE WITNESS: [Marks]
8 JUDGE KWON: Name being your number, actually PW-165. Just 165.
9 THE WITNESS: [Marks]
10 JUDGE KWON: Thank you.
11 MR. BOURGON: And I think we can do away with the exhibit.
12 Q. Witness, I have one more question just before we go for the break,
13 because I think that will be about time for this.
14 Now, being a military policeman yourself for some time, you have
15 been involved, for sure, in setting up what we call check-points in
16 military police language. What I'd like to know from you is: From your
17 description of the place where you were, was this really a check-point,
18 and what was really going on there in terms of the cars that you were
19 either stopping or not stopping? What exactly was happening there at that
21 A. It was a make-shift check-point. Only two of us were standing on
22 the side. We would stop people by raising our hand. They saw that we
23 were military policemen. We checked people going by.
24 Q. And some vehicles you would stop more than others, or was it the
25 same procedure for all cars?
1 A. If we knew someone, we didn't stop them; but if we didn't know
2 people, we would stop and check them.
3 Q. Thank you, Witness.
4 MR. BOURGON: Mr. President, I believe it's the right time for a
6 JUDGE KWON: Thank you. We'll have a break for 25 minutes.
7 --- Recess taken at 10.29 a.m.
8 --- On resuming at 10.58 a.m.
9 JUDGE KWON: Mr. Bourgon, please continue.
10 MR. BOURGON: Thank you, Mr. President. If I may begin by calling
11 back the exhibit that I used, the second sketch of the school, just to
12 make a correction.
13 JUDGE KWON: Which has been marked.
14 MR. BOURGON: The one that -- the one which has been marked by the
15 witness. And I guess it's IC85. We had a good laugh over the break and I
16 would like to make that correction because maybe the witness will help us
17 why -- why there was a problem with the sketch.
18 Q. Witness, just quickly, can you tell me if you can tell from where
19 you made that circle and what I called a road, would I be right in saying
20 that this is actually a stream and that the arrow indicates the way the
21 water is flowing?
22 A. I don't remember there being a creek. There's just the main road.
23 Q. But is that what it says? What is written on that where you made
24 that red circle, what is written there?
25 A. I can't read it. It's illegible.
1 JUDGE KWON: How I remember, Mr. Bourgon, is that the witness was
2 told to circle that arrow, be it a stream or a main road. Told by you to
3 circle the arrow.
4 MR. BOURGON: Indeed, indeed. That's what the mistake is all
5 about. I thought that was the main road on the map, and I believe it's
6 not. But the witness can't help us with that now, so we'll leave it at
8 Q. Witness, let me go on.
9 MR. BOURGON: And may we go into closed session, Mr. President?
10 JUDGE KWON: So you are done with this sketch.
11 MR. BOURGON: Yes, Your Honour.
12 JUDGE KWON: So nothing to do with it.
13 MR. BOURGON: Nothing to do with it.
14 JUDGE KWON: Okay.
15 MR. BOURGON: It was just to make a correction.
16 JUDGE KWON: Thank you. Thanks for the clarification. And we
17 will go into private session
18 [Private session]
2 [Open session]
3 MR. BOURGON:
4 Q. Now, Witness, the person I just mentioned when we were in closed
5 session, I'd like to know if you saw that person that day when you were at
6 the school?
7 A. No, I didn't.
8 Q. And if I say to you that we have information which was provided to
9 us by the Prosecution that the car normally used by Drago Nikolic was
10 driven that day by Bircakovic, would that help you in -- would that
11 comfort you in the fact that you did not see Drago Nikolic that day?
12 JUDGE KWON: Yes, Mr. Nicholls.
13 MR. NICHOLLS: I object to the form of the question. The witness
14 has testified about what he saw. He can ask him what he saw or what he
15 didn't see. But "comforting" him, I think is an inappropriate way to put
16 the question. And I also frankly don't see why the previous question
17 needed to be in private session.
18 JUDGE KWON: Thank you. I think -- could you rephrase the
20 MR. BOURGON: I will rephrase the question.
21 Q. The fact that -- Witness, the fact that Bircakovic was driving the
22 car normally used by Drago Nikolic, and that you did not see him that day,
23 does that confirm the fact that you did not see Drago Nikolic at Rocevic
25 A. That's what I said in my answer, I personally didn't hear --
1 didn't see him, I only heard.
2 Q. In fact, Witness, the car itself that day, you said that
3 yesterday, but you don't know which car exactly it was, you could not
4 describe the car. Is that correct?
5 A. Yes.
6 Q. And you yourself never looked into the car?
7 A. No, I didn't. I didn't have an opportunity to get into this car.
8 Q. And you don't know who was driving the car; is that correct?
9 A. Yes, that's the answer I gave.
10 Q. And would you remember whether the car had two doors or four
11 doors, for example?
12 A. If I don't remember the car, I then definitely can't remember how
13 many doors there were.
14 Q. And if I propose to you that you cannot say how many persons were
15 in the car, would that also be correct?
16 A. I think that I answered that in response to the previous
18 Q. Can you be -- are you certain about the number of people that were
19 in the car, or is there a doubt in your mind? Did you see that?
20 A. I didn't see how many people there were.
21 Q. Now, we have information that -- again, coming from the
22 Prosecution, that the person named Bircakovic drove to Rocevic, that
23 school, that this person was not driving Drago Nikolic. Does that confirm
24 that you did not see Drago Nikolic at Rocevic?
25 JUDGE KWON: That question is complicated. Could you rephrase it
1 so that the witness can follow.
2 MR. BOURGON:
3 Q. I will try to make the question more simple. The Prosecution has
4 provided us information, according to which Bircakovic drove, not only
5 Drago Nikolic's car that day, but that he was not driving Drago Nikolic
6 that day. Does that confirm that did you not see Drago Nikolic in Rocevic
8 JUDGE KWON: Mr. Nicholls.
9 MR. NICHOLLS: Objection. That question doesn't make any sense.
10 He's explained that he didn't see this person Bircakovic, that he didn't
11 know necessarily who was driving Drago Nikolic in this time and he didn't
12 see who was in the car. So the question is illogical. The fact that he
13 did not see this person doesn't confirm anything.
14 JUDGE KWON: We agree. It is sufficient for the witness to say
15 that he didn't see either Nikolic nor Bircakovic and it is for us to
16 confirm whether he is right or not.
17 MR. BOURGON: Thank you, Judge. I will move on.
18 Q. Witness, were you aware that Bircakovic was driving Drago
19 Nikolic's car that day?
20 A. No.
21 Q. And were you aware, Witness, that that day Bircakovic was not
22 driving Drago Nikolic around?
23 A. I just answered your question. I don't know.
24 Q. Thank you. Let's move on.
25 Witness, did you know that on that day Drago Nikolic was
1 apparently, according to information we have, on duty at the Zvornik
2 Brigade during the time-frame that you were in Rocevic? Were you aware of
3 this fact?
4 A. No, I am not.
5 Q. For the sake of the record and to inform my colleagues, this
6 information is taken from Exhibit P377, the Zvornik Brigade duty officer's
7 logbook; P378, Zvornik Brigade duty officer diary; and thirdly, an expert
8 report which was disclosed to the Defence, a report that dates back to
9 June 2006, notice of which was served on the Defence on the 9th March of
11 Witness, my next question refers to someone, I would like to know
12 if, is it possible that one of the military policemen who was there with
13 you on that day, that this would be someone called Simic?
14 A. I don't remember.
15 Q. I now have a few questions concerning your commander, Jasikovac.
16 And you've already said that he was the commander of the military police
18 A. Yes.
19 Q. So Jasikovac was the one who was issuing orders to the military
20 police; is that correct?
21 A. He issued orders to the military police, but he received his
22 orders from his superior.
24 confirm that this person was actually --
25 JUDGE KWON: Just a second. Shall we go into private session?
1 MR. BOURGON: Indeed.
2 JUDGE KWON: Yes.
3 MR. NICHOLLS: My friend needs to be a bit -- are we in private
5 [Private session]
24 [Open session]
25 MR. BOURGON: Now, I'd just like --
1 JUDGE KWON: Just -- just... Yes.
2 MR. BOURGON:
3 Q. I would just like to ask you one question about the meeting that
4 you were informed or told about when you returned to Zvornik Brigade
5 command. You mentioned that there would have been a meeting with the
6 commander. Can you confirm that someone holding the position of commander
7 was present that night and, if so, who that was?
8 A. I don't know who it was. I heard that they were coming up there
9 to have a meeting with the commander. That's what I said.
10 Q. And in your testimony you mentioned the name Obrenovic. Can you
11 confirm that Obrenovic was actually filling in for the commander on that
13 A. Yes.
14 Q. And did you see Obrenovic there that night?
15 A. In my previous statement I said that I didn't.
16 Q. And, Witness, I have one last question for you. And it's simply
17 that, to your knowledge -- or rather, let me phrase this another way. I
18 propose to you that you yourself, and the military policemen from Zvornik
19 Brigade, were not involved in the killing of Muslims detained in villages
20 close to Zvornik Brigade in July of 1995. Would you agree with this
22 A. Yes.
23 Q. Thank you very much, Witness. I have no further questions.
24 Again, I apologise because you have been here for a long time, 15 days.
25 And with everything that happened, I apologise. Thank you, Witness.
1 MR. BOURGON: No further questions, Mr. President.
2 JUDGE KWON: Thank you, Mr. Bourgon.
3 Who is going next? Madam Fauveau.
4 MS. FAUVEAU: [Interpretation] No, Mr. President, no further
5 questions for this witness.
6 JUDGE KWON: Thank you.
7 Mr. Josse.
8 MR. JOSSE: Likewise.
9 JUDGE KWON: Thank you. Then it will be Mr. Sarapa who will ask
11 Yes, Mr. Sarapa is representing Mr. Pandurevic.
12 Cross-examination by Mr. Sarapa:
13 Q. [Interpretation] Good morning, Witness.
14 A. Good morning.
15 Q. On the day when you came to Rocevic, would you agree with me that
16 you and your colleagues who were there, and when you set up the
17 check-point, your duty was to deny access to the civilians to prisoners of
18 war, practically to protect them from the civilian onslaught?
19 A. Yes, that was our duty, and the entry was being secured by others.
20 Q. You didn't see these POWs?
21 A. No, I didn't.
22 Q. In light of that, you apparently don't know how many of them there
24 A. No.
25 Q. Did you know what was to become of them? Could you at least
1 assume what was going to happen to them?
2 A. I was just an ordinary person, and I couldn't suppose what was
3 about to happen or what was happening.
4 Q. Would you agree with the assertion that if soldiers from the
5 military company -- military police company were not in contact with the
7 A. As -- during the time I was there, they were not.
8 Q. Yes, I was referring to the time you were there. Can you tell me
9 this: When this meeting took place, when you went to the Zvornik Brigade
10 HQ, can we agree that Obrenovic was commanding the brigade, standing in
11 for Pandurevic?
12 A. Yes.
13 Q. And do you know that Pandurevic was away at the time?
14 A. Yes.
15 Q. Thank you. Do you know what was the service car that Pandurevic
16 used to use?
17 A. I don't know exactly.
18 Q. At the time did you know --
19 JUDGE KWON: [Previous translation continues] ... Put a pause,
20 yes. Could you ask that question again?
21 MR. SARAPA: Thank you.
22 JUDGE KWON: And put a pause.
23 MR. SARAPA: [Interpretation]
24 Q. At the time did you know what car was being used by Pandurevic?
25 A. I didn't know what car he was using.
1 Q. Very well. For the record, I would like just to make a
2 correction. On page 10, lines 23 and 24, the witness said, when speaking
3 about Obrenovic as the commander who was standing in, the record shows the
4 following:" [In English] [Previous translation continues] ... brigade that
5 was replacing Obrenovic."
6 [Interpretation] In fact it should read that he stood in for
7 Pandurevic. If we can clarify this for the witness, that we are talking
8 about Pandurevic, that Obrenovic stood in for.
9 And in that respect would you agree that at the time the -- the
10 current commander of the brigade was a person standing in for Obrenovic
11 and not Pandurevic?
12 A. [No interpretation]
13 THE INTERPRETER: Could the witness please repeat the answer. The
14 interpreters didn't catch it.
15 JUDGE KWON: Mr. Witness, could you repeat your answer, please.
16 THE WITNESS: [Interpretation] In that period Obrenovic stood in
17 for Pandurevic, and of course we addressed him as brigade commander.
18 JUDGE KWON: Thank you. Now it's clear.
19 Mr. Sarapa, you are done with your cross-examination?
20 MR. SARAPA: [Interpretation] I have no further questions, Your
21 Honour, no.
22 JUDGE KWON: Thank you.
23 Mr. Nicholls, do you have any re-examination?
24 MR. NICHOLLS: I might, Your Honour. I'm sorry. I was wondering
25 if I could ask for a five to 10-minute break. I'm just looking for a
1 document I might want to put to the witness that has come up through the
2 cross, and I just want to check that. I'm trying to find it, I can't lay
3 my hands on it right now. I'm sorry for that.
4 JUDGE KWON: 10 minutes will be sufficient.
5 MR. NICHOLLS: Thank you. That's fine.
6 JUDGE KWON: We will rise for 10 minutes.
7 --- Break taken at 11.20 a.m.
8 --- On resuming at 11.34 a.m.
9 JUDGE KWON: Mr. Nicholls.
10 MR. NICHOLLS: Thank you, Your Honour. Just a couple of
11 questions. If we could have 354 in e-court, and I have to ask that this
12 not be broadcast. And I want to go to page 7, please.
13 JUDGE KWON: Mr. Bourgon.
14 MR. BOURGON: Mr. President, can we -- my colleague explain what
15 he is going to do before he does it. Because I believe that this is
16 beyond the scope of cross-examination and I may be -- maybe it is, but I
17 would like him to explain what exactly he is going to try to do with a
18 document that was not used. If he can do it before we ask the question so
19 we can avoid any interruptions once the witness begins to answer. And
20 maybe the witness should remove his earphones while we have this
22 MR. NICHOLLS: I think I should be able to just go ahead and the
23 objection could be when I start asking the questions, but I can explain
24 it, and the witness remove his headphones if I'm going to explain it. I
25 don't object to that.
1 JUDGE KWON: Mr. Witness, could you kindly do that. Thank you.
2 Yes, Mr. Nicholls.
3 MR. NICHOLLS: There have been questions on cross-examination
4 about when this date was, what time the witness was at the check-point and
5 back at the brigade headquarters and who was in command on that day, who
6 was meeting with Beara and Popovic that day, which commander. And there's
7 been talk and questions about that it was Obrenovic standing in for
8 Pandurevic, the witness has said he wasn't at meeting.
9 What I intend to do is show him the Zvornik Brigade military
10 policemen's duty roster. That roster shows the assignments, or it's got a
11 log of where the military policemen were during the month of July. And on
12 this witness's name there is evidence that there was an R on the 15th of
13 July, which was then poorly erased, and a T, standing for terrain, was
14 substituted for it. And that goes not just for this witness but other MPs
15 who were at Rocevic on the 15th of July, 1995. So I want to show the
16 witness that roster, get his comment on it and see if it refreshes his
18 Before the witness began testifying we went over this in --
19 yesterday a bit. He said always that these events took place shortly
20 after the fall of Srebrenica and then he said he wasn't sure when that
21 fall was and the date. So I think now the issue of what date this was
22 when he was in the command and heard about this meeting, I can show him
23 this roster and see if that helps him.
24 JUDGE KWON: Thank you, Mr. Nicholls.
25 Mr. Bourgon.
1 MR. BOURGON: I don't believe, Mr. President, this is not a
2 question that should be allowed. This is a question that came out in
3 direct examination. There were many questions asked, many attempts by the
4 left, by the right, by the back, by the front, and every time, he got 11th
5 or I don't recall. At that time this document is a document that was in
6 his possession. He could have shown his exhibit to the witness, asked the
7 witness the question, and checked whether the -- where was the witness
8 that day.
9 Now, in cross-examination no one asked the witness about the
10 particular date of these events. No one asked about that. All the
11 questions were related to a meeting that took place, to events that took
12 place in Rocevic, but never to a specific date. This is beyond the scope
13 of cross-examination. It is something that my friend is probably trying
14 to repair direct examination which is a failure, but that's his problem,
15 it's not ours, and it should not be allowed, Mr. President. Thank you.
16 MR. OSTOJIC: Mr. President, if I may just add. I concur with
17 that objection. I also believe that it's inappropriate because I don't
18 believe from my recollection that anyone referenced a date or whether it
19 was after or before. And from this witness's testimony, I do object to
20 counsel trying to shape the testimony now to suggest that he always said
21 it was after. I think the testimony speaks for itself, as well as his
22 summary of whether he actually felt someone was at a meeting or not at the
23 meeting. His testimony should stand. The document should have been used
24 if counsel wanted him to pin-point the date. It was not used in any of
25 his meetings, it was not used during the direct, it's outside the scope of
1 cross-examination by every stretch. I think it's highly inappropriate and
2 very prejudicial at this point.
3 JUDGE KWON: Mr. Bourgon, your objection is not based upon the
4 fact that this document was not listed --
5 MR. OSTOJIC: Not at all.
6 JUDGE KWON: -- in the 65 ter or in the --
7 MR. BOURGON: Not at all. It's a Prosecution exhibit. He can use
8 whatever exhibit he. Wants that's not the issue here. The issue is it's
9 his witness, it was an issue that he wanted to get from the witness, he
10 did ask the question, he was not satisfied with the answer. He asked more
11 questions, he was still not satisfied. We had to go to get a ruling from
12 the Chamber to get more questions, and in the end we have two things on
13 the record: the 11th, or, "I don't recall."
14 Now, in cross-examination, the issue doesn't come up at all,
15 nobody discussed the date. If we had not been satisfied with the date or
16 something, we might have cross-examined on this issue, but nobody did.
17 Now he comes back in re-examination, tries to repair what is missing,
18 according to him, in his case and he wants to get it at this stage. It's
19 highly improper. That's the -- what's important about my objection.
20 Thank you, Mr. President.
21 MR. NICHOLLS: May I respond?
22 JUDGE KWON: Yes, Mr. Nicholls.
23 MR. NICHOLLS: It's not just the date. Maybe I didn't explain it
24 adequately. The thrust of a lot of the cross has been that Vinko
25 Pandurevic was absent at this time and that the meeting must have been
1 with the Chief of Staff, somebody standing in for him, Obrenovic, because
2 he was not there. The witness did not see that meeting was told this
3 meeting was with the commander. There is evidence we have and that we
4 will be putting on that Vinko Pandurevic was there on the evening of the
5 15th, that he had come back, and that he was present.
6 Therefore, that, without them saying 15th, they have, on
7 cross-examination, tried to cement in the period of time as definitely a
8 period of time when Pandurevic was absent. And there's going to be other
9 evidence. I'm not going to ask this witness if he knows the exact dates
10 of Pandurevic's coming and going. But I think it's fair to put this to
11 him to see whether, on the date of this meeting, the date he went to
12 Rocevic, could have been the 15th. Because that is when Pandurevic is
13 back at the Zvornik Brigade headquarters.
14 JUDGE KWON: Thank you.
15 Mr. Bourgon.
16 MR. BOURGON: Mr. President, this is the -- what my colleague is
17 trying to do at this time is to try and ask something that is related to
18 the date of the events the witness testified about. That's what he's
19 trying to get. The reference from yesterday, page 57, lines 19 to 25,
20 page 58, lines 1 to 7, where we talk about the date. The date of the
21 events is solved, and what he is trying to do by the back door is to get
22 something else that is not -- unrelated to this witness. And if he wanted
23 to do it, the time to do it was on examination-in-chief and not after
24 cross-examination once this witness is over. It's not the proper time to
25 raise this objection and to try and re-examine on this specific topic. If
1 my friend later on wants to lead evidence about other events, he can do
2 that. But with this witness, I believe this is an improper question.
3 MR. NICHOLLS: Briefly, sorry. I object to the assertion that I'm
4 trying to do anything by the back door. What I'm trying to do is deal
5 with the cross-examination of who was commander that day. The prior
6 testimony about the date was somewhat blurry and I left it at that.
7 However, they, on cross-examination, my friends, have cemented with the
8 witness that this was the day when Pandurevic was not there and that the
9 commander was standing in for him. That is what opens the door for
10 showing him this log.
11 JUDGE KWON: Thank you.
12 [Trial Chamber confers]
13 JUDGE KWON: Mr. Nicholls, the Chamber is of the view that the
14 Prosecution will be allowed to put question in relation to documents as
15 for the absence or presence of Accused Pandurevic at the time. But we
16 agree with the points raised by Bourgon as for the date when the witness
17 was in Rocevic.
18 So put specific questions.
19 MR. BOURGON: The problem, Mr. President, he wants to use a roster
20 with the presence of the witness. That's the -- that's the difficulty.
21 JUDGE KWON: That's a separate matter.
22 Mr. Nicholls.
23 MR. NICHOLLS: Thank you. What I'd like to do, Your Honours, if I
24 may, is this is 65 ter number 354. I've got the original, which is what I
25 intend to show the witness. And I'm just not clear on the Court's order.
1 Am I permitted to show --
2 JUDGE KWON: Yes.
3 MR. NICHOLLS: -- the witness the roster?
4 JUDGE KWON: The duty roster which is related to Mr. Pandurevic.
5 MR. NICHOLLS: No. That's -- what I was going to show the witness
6 is the duty roster relating to him and --
7 JUDGE KWON: I was not clear enough. No, that's not allowed.
8 MR. NICHOLLS: Okay.
9 JUDGE KWON: It hasn't appeared in the e-court yet.
10 [Trial Chamber and registrar confer]
11 MR. NICHOLLS: There won't be any document used.
12 Re-examination by Mr. Nicholls:
13 Q. The day you were on that -- on duty at the Rocevic School, did you
14 know where Pandurevic was at midday that day?
15 A. No, I did not know.
16 Q. Did you know where he was the evening the day you were at the
17 Rocevic School?
18 A. At -- in the evening I was at headquarters, but I didn't know
19 where Pandurevic was.
20 Q. Do you recall - and I want to ask you to think carefully and
21 specifically - when you were -- when you -- who -- when you were told that
22 there was a meeting with the commander, were you given the name of that
23 commander who was meeting with Popovic and the person you were told was
25 A. No, I wasn't told the name. And for the first time in the
1 statement when we discussed this, I said I was talking with the commander,
2 but as we didn't agree with the English and Serbian version, it was
3 written, "Commander Pandurevic," but Obrenovic was actually replacing him
4 at that time, but I think we solved that problem with the translation.
5 MR. NICHOLLS: I think I'll leave it at that, Your Honours.
6 JUDGE KWON: Thank you.
7 I think there's more appropriate witnesses who can deal with this,
8 but, Witness, can you answer the question -- can you explain the relation
9 between the security officers and military police? Are military police
10 subordinated to the security line?
11 THE WITNESS: [Interpretation] Well, we personally, with the
12 security officers, did not talk to the security officers while we were on
13 duty. We might have sat around with them, but we received commands from
14 the military police commander.
15 JUDGE KWON: So when you said earlier that Jasikovic must have
16 received his orders from his superior, what superior did you have in mind?
17 THE WITNESS: [Interpretation] Well, the chain of command was like
18 this: The military police commander received orders from his security
19 officer, the security officer received orders from the main commander, and
20 that way up and down the chain.
21 JUDGE KWON: Thank you.
22 That concludes your evidence, Mr. Witness. And I thank you for
23 coming to the Tribunal to give it. And now you may go. And I hope you
24 have a good trip back to your country.
25 THE WITNESS: [Interpretation] Thank you. Thank you.
1 [The witness withdrew]
2 JUDGE KWON: Shall we deal with the exhibits, first of all.
3 MR. NICHOLLS: I have just three, Your Honours.
4 JUDGE KWON: Yes, please go on.
5 MR. NICHOLLS: P02495, the pseudonym sheet under seal.
6 JUDGE KWON: Did you tender the list?
7 MR. NICHOLLS: I believe -- I don't know.
8 [Prosecution counsel confer]
9 MR. NICHOLLS: No, I'm sorry.
10 JUDGE KWON: No problem. Yes. Please go on.
11 MR. NICHOLLS: P02495, that is the pseudonym sheet under seal.
12 P02494 is the unmarked map of the Rocevic area which I showed the
13 witness. And 00083 in court -- PIC00083, excuse me, and that is the
14 marked map of the Rocevic area.
15 JUDGE KWON: Any objections? Thank you.
16 And I have a list from the Popovic Defence. Mr. Zivanovic.
17 MR. ZIVANOVIC: [Interpretation] We handed in our list to the
19 JUDGE KWON: So I have it in front of me. According to the list,
20 you are proposing to submit part of the statement and the supplemental
21 information sheet dated 23rd of March.
22 MR. ZIVANOVIC: [Interpretation] Yes, that is correct.
23 JUDGE KWON: Mr. Nicholls.
24 MR. NICHOLLS: Again, I absolutely object to parting out the
25 statements. I think the Court's ruled on that before. There is no reason
1 to do that. The parts he read out and shown are either on the record,
2 what he read out, and he can either put in the statement or not. But
3 these redactions and parts, I don't think, make any sense, and therefore I
4 object to item 1. I do not object to item 2.
5 JUDGE KWON: Mr. Zivanovic, do you have any response to this?
6 MR. ZIVANOVIC: [Interpretation] I consider that the objection is
7 unfounded because it was the ruling of the Chamber that exhibits can be
8 tendered into evidence only if they were shown to the witness, put to the
9 witness and I put to the witness just that portion of the statement that I
10 am tendering, nothing more than that. So that's all I'm asking for.
11 That's all I want to have admitted.
12 JUDGE KWON: Mr. Bourgon.
13 MR. BOURGON: Mr. President, in support of this argument, it was
14 mentioned before, and I argued previously, that when the time comes to
15 seek to admit portions of a statement or a full statement for the sake of
16 credibility or impeachment purposes or for purposes other than the truth
17 or the evidence, that it is not for the Prosecution to say what the
18 Defence should or should not tender into evidence. The idea is for the
19 Defence to say what is required to assist the Trial Chamber in order to
20 determine whether a witness has or does not have credibility.
21 In this case my colleague is asking for parts of a statement.
22 It's -- he will have to live with his decision of putting in all or not
23 all of it, because he feels that this is what the Chamber will require and
24 this is what will assist the Chamber. And this is not something that the
25 Prosecution should even get involved in. Thank you, Mr. President.
1 JUDGE KWON: Mr. Nicholls.
2 MR. NICHOLLS: There is this kind of code of procedure that --
3 that I learn about every day from Mr. Bourgon. I mean, I think it's
4 absolutely crazy that the Prosecution is not allowed to object or make
5 arguments on what the Defence or any other -- or what either party wishes
6 to put in. If I try to put something in, he can make his objection and
7 his argument. If the Defence tries to put in something, I am perfectly
8 entitled to argue why or why not I agree with that.
9 The rule in every other case I have tried here or anywhere else,
10 is that when a witness is confronted with a statement or shown a statement
11 on cross-examination, either the statement comes in or the record is
12 relied upon and what was read from the statement. It's very artificial to
13 parse a statement apart.
14 And again, there is no jury here. If the Trial Chamber receives
15 the statement they can see these extracted parts in context, and they will
16 know what they are seeing. There is no reason to hide parts of statement
17 from the Trial Chamber. The Trial Chamber knows the purpose that the
18 statement is being submitted for, and -- and I strongly object to putting
19 in parts of it. If necessary, I would ask that we end up briefing this
20 because I think it's an important issue.
21 JUDGE KWON: Let's leave it there.
22 MR. BOURGON: My colleague for the Prosecution, they don't have
23 the same opinion. They express different opinions at different times.
24 They want this trial to be a -- to be conducted according to a
25 contradictory system when it suits them, and when it doesn't suit them,
1 then they don't want it. They want a different system. They should pick
2 and choose and live with their case.
3 JUDGE KWON: I don't -- leave it at that.
4 Mr. Josse.
5 MR. JOSSE: My only comment is, could the Chamber please look at
6 these -- these examples on a case-by-case basis and my slight concern
7 about what my learned friend Mr. Nicholls is saying is he wants it argued
8 as a matter of principle. That's a completely different issue. As far as
9 a case-by-case issue is concerned, as is obvious, we are neutral so far as
10 this is concerned. But there has been an occasion in the past, Chamber
11 might recall, where I had a specific objection because of something that
12 was contained in the statement that hadn't been cross-examined upon at
14 JUDGE KWON: Thank you. That is helpful.
15 [Trial Chamber confers]
16 JUDGE KWON: Mr. Sarapa, I didn't recognise you.
17 MR. SARAPA: [Interpretation] I would just like it to be noted that
18 we object to admitting the whole statement. And we agree with our learned
19 colleague Zivanovic that only extracts, not the whole statement, should be
21 JUDGE KWON: In light of these interventions on the part of the
22 Defence, can I ask Mr. Zivanovic whether it is really necessary to tender
23 these parts, only six lines in total, which was put to the witness and
24 which was recorded in the transcript.
25 MR. ZIVANOVIC: [Interpretation] Your Honours, that is what I
1 assessed to be beneficial to my client and what I generally put to this
2 witness. By the way, let me just remind everyone that on earlier
3 occasions I proposed only portions of statements to be admitted, and that
4 the Chamber granted my request. In a previous case of intercept, there
5 was an objection from the Prosecution, but the Trial Chamber agreed just
6 for the portion relating to my client to be admitted. So that is what I
7 wanted to say.
8 JUDGE KWON: Thank you. I remember that. But when there were
9 cases in which the Chamber recommended the parties to tender all the
10 document, for the purpose of understanding the context of that paragraph,
11 so that -- in that case, the other paragraphs are not tendered into
12 evidence, just for the -- it was tendered to help the Chamber to
13 understand the real evidence.
14 So I take it that you are not tendering item 1.
15 MR. OSTOJIC: No.
16 JUDGE KWON: Thank you.
17 MR. ZIVANOVIC: [Interpretation] I'm sorry. I didn't understand
18 what you mean, I'm not proposing Exhibit Number 1.
19 JUDGE KWON: I was confused with your statement that, "That is
20 what I assessed to be beneficial to my client." So you stand by your
21 motion to tender only part of the statement?
22 MR. ZIVANOVIC: [Interpretation] Yes. My motion was to admit only
23 item 11 and the first two sentences from item 12 of this statement. That
24 was my motion. That's correct.
25 JUDGE KWON: On a separate note, have you prepared that part to be
1 tendered into e-court?
2 MR. ZIVANOVIC: [Interpretation] I have instructed my team or
3 supporting staff to do that, however I don't know if it's already been
4 done or not. But I do expect it to be finalised any time soon now.
5 JUDGE KWON: Thank you.
6 [Trial Chamber confers]
7 JUDGE KWON: Mr. Zivanovic.
8 MR. ZIVANOVIC: [Interpretation] With your leave, I'm going to
9 withdraw this portion of the statement, and I don't bother to -- want to
10 bother the Chamber any longer with that.
11 JUDGE KWON: I think that resolves the matter. Thank you.
12 So we will admit item 2 and -- which is -- which should be under
13 seal. Thank you.
14 And Mr. Bourgon, you are tendering two exhibits.
15 MR. BOURGON: Indeed, Mr. President. Two exhibits: IC84, which
16 was a map which was initially produced by the Prosecution and which was
17 marked by the witness. And the second item is IC85, a sketch of Rocevic
18 School which was produced by the Defence and also marked by the witness.
19 Thank you, Mr. President.
20 JUDGE KWON: I take it there is no objection from the Prosecution.
21 MR. NICHOLLS: No. I take it this is the same thing, just marked
22 and unmarked, because you use the words "map" and "sketch." But -- oh,
23 yeah. No, no objection. Sorry.
24 JUDGE KWON: Thank you.
25 [Trial Chamber and registrar confer]
1 JUDGE KWON: All right. That concludes the business with relation
2 to this witness.
3 Mr. Bourgon.
4 MR. BOURGON: Mr. President, I do have some -- some issues I would
5 like to -- three issues I would like to raise concerning specifically this
7 JUDGE KWON: Yes.
8 MR. BOURGON: The first issue I would like to raise,
9 Mr. President, has to do with the question which was raised by the Trial
10 Chamber at the beginning of this hearing when the Trial Chamber questioned
11 the witness.
12 We take issue with the second question which was -- answer which
13 was posed by the Trial Chamber. We believe that there was -- the first
14 question was entirely appropriate but that there is a difficulty with the
15 second question. Because it places this Trial Chamber with an ethical
17 The witness answered differently, and I -- the question I refer to
18 is at page 4, lines 11 to 18. When this question was posed to the
19 witness, basically as to what happened in the office when he met with the
21 JUDGE KWON: Mr. Nicholls.
22 MR. NICHOLLS: I object. I object to this submission completely
23 and it should stop now. If he had any problem with the question he should
24 have objected at the time -- or with the answer. This is -- the witness
25 is gone now. There's -- the testimony is over. I don't understand how he
1 can now take issue with any questions from the Bench, from me, or from
2 anybody else.
3 MR. BOURGON: Mr. President --
4 MR. NICHOLLS: It's argument.
5 MR. BOURGON: -- it was -- this was an issue that I could not
6 interrupt the Trial Chamber when the Trial Chamber was questioning the
7 witness and as you said yesterday, try and let the testimony flow. It was
8 not the time to make this argument at that point.
9 But when this second question raises an issue which the Trial
10 Chamber must, in our opinion, be informed of. And there are consequences
11 to the questions which go beyond what actually the question that was
12 asked. And this is what I would like to raise with the Trial Chamber at
13 this time.
14 JUDGE KWON: So what --
15 MR. BOURGON: If I may proceed.
16 JUDGE KWON: Where are you leading us?
17 MR. BOURGON: I am simply leading to the fact that the question
18 that was posed to the witness about the meeting which took place between
19 the witness and the Prosecution, this question put the witness into the --
20 the situation where he gave an answer which is different from what was put
21 on paper by my colleague and what was -- what was said by my colleague to
22 the Trial Chamber. We now have two different answers as to what happened
23 in that room.
24 The result of this, Mr. President, is that we have three choices:
25 The first choice would be that the Prosecution lied. And never would
1 anybody say that. So then maybe the witness lied, in which case he is a
2 liar and all of his testimony must not be considered. But there is a
3 third option. And the third option is, when that answer -- nobody lied,
4 everybody told the truth, but actually the witness was put under pressure
5 in that room that day.
6 MR. NICHOLLS: I again --
7 MR. BOURGON: That's a matter which must be raised before the
8 Trial Chamber in consideration of the testimony of this witness.
9 MR. NICHOLLS: I object to this, I'm sorry, complete nonsense. He
10 could have at the time said, Your Honour, I don't think that's a good
11 question or objected to the question. Inconsistencies in a witness's
12 answers, if they're made by the Prosecution -- questions from the
13 Prosecution, questions from the Defence, questions from the Bench, these
14 are not always -- they are not always complete consistencies, and that's
15 where the Trial Chamber comes in and weighs the evidence and decides what
16 weight to give it and what weight to give which answers and focuses on the
17 demeanour of the witness and their recollection and the transcript.
18 And finally, this is a matter that my friend could have dealt with
19 on cross-examination and could have gone into, but he didn't ask anything
20 about it. So I would ask that this entire inappropriate line be stopped
21 now, and if he wants to make his argument at the appropriate time in his
22 final brief about how the Trial Chamber should treat this evidence, that's
23 one thing. But there is no pressing issue which needs to be raised now,
24 and it's also an illogical argument, this kind of trilogy of choices, and
25 again asserting the witness was put under pressure. If he wanted to do
1 something about the Trial Chamber's question, he should have objected to
2 the question at the time, and it's not true that he couldn't have stopped
3 at that point and said something.
4 JUDGE KWON: Thank you, Mr Nicholls.
5 Mr. Ostojic.
6 MR. OSTOJIC: If I may for just one minute, Your Honour,
7 Mr. President, I would like to join the debate in part. We hear from the
8 Prosecutor from time to time, we want to get to the truth and we've said
9 it on a number of occasions. I think it's what disingenuous. I don't
10 think it's silly that we raise the issue as to how witnesses who
11 consistently not only are impeached but are inconsistent with their prior
12 testimonies, they come and testify about events 10 and 12 years later and
13 have specific recollections. The Prosecutor himself could have used a
14 number of tactics that are available to them so that there is a
15 transparency, so we know what the truth is. And that is precisely to have
16 the witness execute or sign the statement, which they failed to do, not
17 the Defence, or they could have tape-recorded the interview that they had,
18 since they desire to have the truth and this transparency, they should
19 have tape-recorded the interview with these witnesses, especially if they
20 themselves consider them to be hostile.
21 That is not done on most occasions; only when it suits the
22 Prosecutor to tape record or have them execute the statement. It would
23 have taken them no more than 15 minutes with the resources that they have
24 to have those accommodations made. They have chosen instead to put
25 themselves as potential witnesses in this case and to determine whether or
1 not a witness said something to the Prosecutor or not, and I think that's
2 what's unfair and that's what, quite frankly, as my learned friend calls
3 silly or -- that's what they should have done. They should have taken
4 that avenue which was available to them. And I do say this because there
5 are many witnesses coming forward which will probably and in all
6 likelihood share the same process as this witness did. So I invite the
7 Prosecutor to, if they want to have the truth and an open process, simply
8 tape-record the interview.
9 Thank you, Mr. President.
10 JUDGE KWON: Thank you.
11 [Trial Chamber confers]
12 JUDGE KWON: I think the Chamber made it sufficiently clear before
13 putting the questions to the witness that -- the basis for the Chamber to
14 put questions to the witness. And the Chamber's purpose was to try to
15 clarify his evidence, and I believe the Chamber is fully capable of
16 interpreting the evidence of the witness. Let's stop here.
17 And before we break there's some -- are there any administrative
19 MR. BOURGON: Mr. President, I do have additional issues I would
20 like to raise.
21 JUDGE KWON: Oh, you said three items.
22 MR. BOURGON: Three items.
23 JUDGE KWON: Yes.
24 MR. BOURGON: Actually, there is a fourth one, but it is very
1 The second item I would like to raise also deals with the ruling
2 that was given by the Trial Chamber at the beginning of this hearing. And
3 I quote now from lines 2 -- page 2, lines 1 to 6, and page 10, lines 9 to
4 11. And I paraphrase what was put by the Trial Chamber. The fact that it
5 would be entirely appropriate and consistent with the concept that there
6 is no property in the witness, that I can ask a witness what was discussed
7 with the Prosecution, that there was absolutely no problem with that.
8 And secondly, that for telling witnesses to tell the truth when
9 testifying in these circumstances do not constitute instances of
10 pressuring the witness.
11 I believe, Mr. President, my arguments were not held -- withheld
12 by the Trial Chamber. I understand that. I made a common sense
13 argument. I don't believe that there is a problem with that, but that
14 Trial Chamber decided to reject this. I seek leave at this time to brief
15 the issue. I feel this is an issue that is of major importance, what can
16 be done with a witness when I meet a witness, whether I can ask him a
17 question as to what did the Prosecution tell you and what kind of
18 situation that puts the witness in.
19 The second issue is through all my years I've always said that a
20 person in authority telling a witness in circumstances like this to say,
21 "You have to tell the truth" several occasion in the same interview,
22 Trial Chamber might believe that this is not putting pressure on a
23 witness. I believe otherwise, and I will produce the case law that says
24 that the person in authority saying to a witness that he has to tell the
25 truth on many occasions in a short period of time, I will produce the case
1 law which says that legally this is unwise and unsound.
2 More importantly, Mr. President, I do believe that by doing these
3 things, we are playing with the witnesses, which is what we want to
4 avoid. These witnesses are under hardship when they come here and they
5 should not be played around with this way. That's why I just simply seek
6 leave to brief the issue in law.
7 JUDGE KWON: Mr. Nicholls.
8 Mr. McCloskey.
9 MR. McCLOSKEY: We object to this, Your Honour. I think -- I
10 think we should learn to live with the Court's judgements. There is no
11 reason to -- for this to be written down anywhere, especially since the
12 bulk of the argument appears to be factual challenges to the credibility
13 of the Prosecution. I don't think you need to hear any more of that.
14 JUDGE KWON: Thank you.
15 Can I hear your third point as well?
16 MR. BOURGON: Third point also relates to the testimony of this
17 witness. Mr. President, we -- you have heard from my cross-examination
18 and also from my arguments dealing with what happened with this witness, I
19 would like to ask that the Prosecution make its case precise against my
21 The Prosecution has provided information to the Defence that he
22 was not seen in Rocevic. The Prosecution has provided information to the
23 Defence that he was not driven by his driver that day. The Prosecution
24 has provided evidence to the Defence in a duty book that he was on duty at
25 the Standard, or at the Zvornik Brigade command that day. The Prosecution
1 has provided evidence to the Defence of a handwriting analysis that he was
2 the one writing in the book that day in Zvornik Brigade command.
3 Now, then they produce a witness to try to say that he is in
4 Rocevic that day. I would like the Prosecution to tell what is it -- what
5 is the case I have to meet? Is my client alleged to have been in Rocevic
6 that day, is my client alleged to have been in Zvornik command, or is my
7 client alleged to have everything all wrong and that he falsified the book
8 with the handwriting analysis, or that he wrote the book, he went to
9 Rocevic, and he came back? I'd like to know the case I have to meet, and
10 this will avoid many of these situations that we have lived with with this
11 witness. If the Prosecution knew what its case was, it would be much
12 easier for the Defence to face that case, and I'd would like to obtain
13 some precision in this regard. What is the Prosecution's case regarding
14 Drago Nikolic on the 15th of July. Thank you, Mr. President.
15 JUDGE KWON: Did the Prosecution not make his -- its case clear by
16 the indictment?
17 MR. BOURGON: Certainly not clear in terms of what the evidence
18 they will lead. They are leading contradictory evidence. Their case is
19 not clear at all.
20 JUDGE KWON: Mr. McCloskey.
21 MR. McCLOSKEY: Your Honour, I welcome the chance to give you
22 argument on what the case is. And I've offered that several times. No
23 one has taken me up on it. Mr. Bourgon's -- likes to argue his case
24 whenever he gets the chance, and he and I will argue everyone's case, if
25 he wants us to. I think the indictment is clear, the brief is clear. I
1 wouldn't expect all the evidence to be the same and non-contradictory, nor
2 would the Trial Bench, but I can respond to all this, I can make the case
3 clear. And the only reason I ask that is because it's a long case and it
4 may help the Court in that respect. So I have no problem arguing these
5 things and taking the time to do it. But it's really of course
6 inappropriate unless the Court wants to sanction a practise like that.
7 But we did it in the last trial I was in, and I think the Chamber found it
8 was helpful.
9 JUDGE KWON: Thank you.
10 [Trial Chamber confers]
11 JUDGE KWON: On the second issue the Chamber made a ruling, and
12 the Chamber does not need a further brief on this matter.
13 On the third issue, given that we are sitting pursuant to 15 bis,
14 I think there may be some appropriate time in the conduct of the trial
15 for -- to have argument or submissions to hear the cases.
16 Any further administrative matters?
17 Mr. Ostojic.
18 MR. OSTOJIC: Thank you, Mr. President. I do have one. I've
19 asked my learned friend on a couple of occasions, both this week and I
20 believe last week, for an estimate or reasonable estimate as to the
21 duration of his case. And I'm wondering if the Court knows what that
22 estimate is, because we were given estimates in July and August of last
23 year as to what that is, and it's important for the Defence as well as for
24 many other things. We're not tying him to that, but I think it's clear
25 that the estimate given by Court and the Prosecutor of 11 and a half
1 months doesn't seem to be realistic. And for many different reasons we'd
2 like to see what the estimate of the duration of the Prosecutor's case is
3 at this point.
4 JUDGE KWON: Thank you. That is helpful.
5 Mr. McCloskey, whether we can have an updated estimate after the
7 MR. McCLOSKEY: Yes, Mr. President. That -- we have -- and we
8 have been in discussions, because it is so important to everyone. We will
9 take another look at our estimates that we -- actually wasn't that long
10 ago, I think, that we filed something with estimates.
11 As you know, our biggest problem in estimating is -- is estimating
12 cross-examination times. This is where this case will get a bit longer or
13 a bit shorter, and so we will give you our updated estimates, and we will
14 have to see what -- what comes of the cross-examination. But that's --
15 that's the difficulty that we're in.
16 JUDGE KWON: However, what the Chamber likes to have is the
17 overall time necessary for the presentation of the Prosecution's evidence,
18 which will take for the examination-in-chief, excluding the time for
20 MR. McCLOSKEY: Yes, that's no problem. That's -- that's no
21 problem, and you -- we can all add it up what's in the record now, from
22 our previous filings if we subtract the witnesses. And we have made a
23 brief -- if we do that, we have 177.5 hours left and 82 live witnesses to
24 go, and we're about halfway through. But we're going to take a good look
25 at this, see if we can knock people off, see if our estimates are okay,
1 and try to give you a better -- a better estimate so that we can all plan
2 our lives.
3 JUDGE KWON: Thank you.
4 [Trial Chamber confers]
5 JUDGE KWON: Mr. McCloskey, we were informally informed that in
6 relation to three witnesses you are going to convert into 92 ter
7 witnesses. Two of them, as for two of them you changed the position to
8 call them live. Can you confirm that?
9 MR. McCLOSKEY: Yes. We had -- you recall Mr. Haynes had entered
10 discussions with us about three. We looked at it initially and we agreed
11 with one. I looked at it again last night because I had been reminded
12 that we hadn't provided you with the statements. And I thought that
13 Mr. Haynes probably had a point on the second one as well. So we've --
14 we're on our way in providing you with -- oh, it's already been done --
15 with the remaining statement of the witness that we will have as 92 ter.
16 That's where we are.
17 JUDGE KWON: Thank you.
18 MR. McCLOSKEY: It's just to clarify, 132 and 108 are viva voce
19 and 117 is 92 ter, which is Ms. Stewart's conclusion.
20 JUDGE KWON: The Chamber will make a ruling as soon as possible
21 after having reference to that 92 ter statement.
22 Mr. Nicholls or Mr. Bourgon. Who's first?
23 Mr. Nicholls.
24 MR. NICHOLLS: I think I -- just if I can assist my friend, Your
25 Honour, Mr. Bourgon, Your Honour, asked about the indictment. I'd suggest
1 my friend read paragraph 30.8.1, which is headed, Rocevic school and
2 states Drago Nikolic and Milorad Trbic travelled to the Rocevic school to
3 supervise the VRS personnel guarding the prisoners, which might help him
4 with our case, whether or not we were saying that Drago Nikolic went to
5 the school.
6 JUDGE KWON: Thank you.
7 MR. BOURGON: I won't comment on the fact that they've got all
8 kinds of contradictory evidence, but that's not the point I'd like to
9 raise, Mr. President. I would -- administrative matter which is that on
10 the 9th of March we were served with a handwriting analysis expert report,
11 and according to the dead-line set, we normally have to file our response
12 to this report within 30 days, which would be by the 9th of April. We
13 kindly ask Mr. President for a delay to respond, and until the 23rd of
15 The reason for this delay is we are presently considering this
16 handwriting analysis and maybe there won't be a need to challenge the
17 expert report, and I think the additional time that we will take to
18 carefully analyse whether we want to object or not, or cross-examine or
19 not, this expert, warrants the delay, the short delay that we ask to
20 produce our response by the 23rd of April, which is one week after the
21 court recess. Thank you, Mr. President.
22 MR. NICHOLLS: No objection.
23 JUDGE KWON: Thank you. It's granted.
24 Then I don't think that we will have the next witness today. So
25 court is adjourned. I hope everybody has a happy break, and we will
1 adjourn [sic] on -- at 9.00 on the 16th.
2 --- Whereupon the hearing adjourned at 12.30 p.m.,
3 to be reconvened on Monday, the 16th day of April,
4 2007, at 9.00 a.m.