1 Tuesday, 15 May 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 JUDGE AGIUS: Good morning, everybody.

6 Madam Registrar, could you kindly call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is the case

8 number IT-05-88-T, The Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: All right. Thank you, ma'am.

10 All the accused are here. From the Defence teams, I only notice

11 the absence of Mr. Bourgon. The Prosecution, Mr. McCloskey and

12 Mr. Thayer.

13 Are there any preliminaries?

14 Yes, Mr. Ostojic.

15 MR. OSTOJIC: Good morning, Mr. President, Your Honours. There is

16 one preliminary.

17 JUDGE AGIUS: Good morning to you.

18 MR. OSTOJIC: Thank you.

19 Mr. President and Your Honours, we have what we believe is a

20 serious concern. I know from time to time, we've raised issues with the

21 Court. We just yesterday, at about 10.00, received the Prosecutor's

22 motion in connection with Witness PW-108. Without naming him, obviously,

23 and discussing it, it seems to us that the Court has been advised of this

24 witness for some time since, I believe, August and February, when you

25 initially made your ruling. Our concern is that Zvornik witnesses,

1 specifically like this gentleman, Mr. Jovicic, has come here and we will

2 not have an opportunity, because at least the accused Beara, we did not

3 have any information in connection with this witness and the witness with

4 whom he had this hearsay conversation who is now deceased in order to

5 question this witness. We've not been able to investigate any of the

6 allegations made by this witness or by the witness who he spoke with, and

7 other witnesses perhaps.

8 So --

9 JUDGE AGIUS: You're still referring to 108?

10 MR. OSTOJIC: 108 and the declarant who apparently passed away,

11 whose name I don't know if I can reveal or not, so I'm not --

12 JUDGE AGIUS: No, no, I would prefer you didn't for the time

13 being, just to be on the safe side.

14 MR. OSTOJIC: I just wanted to direct the Court to it.

15 And we believe that it's obviously shifting the burden on to the

16 Defence to bring witnesses here -- the burden of proof, to bring witnesses

17 here and not to allow us to have an opportunity to cross him on what seems

18 to be critical evidence, I think it causes prejudice, and it's quite

19 candidly, without overstating it, and I think I'm understating it, it's

20 trial by ambush.

21 If they had this evidence as early as August of 2006, there should

22 have been at least a conference with the Court by way of a pre-trial

23 conference or at least a conference with counsel to advise us of the

24 evidence.

25 If the Court will note, when they made their application

1 initially, they identified PW-108 very nondescriptly and very benignly,

2 similar to how some of the witnesses have identified certain accused in

3 this case. We were not put on notice, and yet before the trial started

4 there was clear evidence in the possession of the Prosecutor which goes to

5 acts, purportedly, and conduct against our client.

6 Secondly, it doesn't seem that the Prosecution, with all due

7 respect to them, has abided by the Rules of Procedure and Evidence in this

8 trial. If they had evidence of not just this declarant, PW-108, but of

9 the deceased individual, which seems to exist, meaning his prior

10 statements, which are more than one from what I can gleaned from reviewing

11 this briefly yesterday and this morning, as well as possible other

12 testimonies that this deceased person gave in this Tribunal, it should

13 have been offered to the Court, at the very least --

14 THE INTERPRETER: Please slow down.

15 MR. OSTOJIC: I apologise, Your Honour.

16 JUDGE AGIUS: No, no, I could follow you, but obviously you're

17 going too fast for the interpreters, so if you could kindly slow down a

18 little bit, I think it will help.

19 MR. OSTOJIC: I know we've raised this issue with other witnesses,

20 but I think to give the Court one statement without giving the Court the

21 benefit of these other statements, and the fact that PW-108 may have

22 testified in another proceeding which I just learned about this morning -

23 I haven't checked the accuracy of that - in another Chamber. I think the

24 Court needs to have the benefit of the complete picture, and I think the

25 Defence, by not getting any information in connection with that, has been

1 prejudiced from cross-examining other Zvornik Brigade members, witnesses,

2 who have testified.

3 By way of example, with this witness, Your Honour, I think it

4 would have been appropriate if we were given this information in a timely

5 manner to consult with our client, to find out whether there is any truth

6 to these allegations which are clearly prejudicial, and clearly can impact

7 not only the Court's view here as well as what witnesses may say. We

8 don't have identification of these individuals. We would ask that a photo

9 chart or photo identification board be presented so I can ask this

10 individual, for example, Mr. Jovicic, if he ever saw these people coming

11 at any time in July of 1995, among some of the questions that we would

12 ask.

13 Failure to be given this information, this witness will be gone

14 forever and will not be able to be recalled to ask those questions. This

15 witness, again by only one example, was present in the Zvornik Brigade on

16 a regular and continuous basis, at least according to his testimony. He

17 would have and should have, in our view, at least noted that there was

18 some people from the outside, as the Prosecution purports, who have come

19 into the Zvornik Brigade to investigate or to try to have meetings or

20 consultations with various members of either Zvornik or other corps or

21 commands.

22 When I use the word "ambush," Your Honour, I know we've used it

23 before, it truly is a trial by ambush, and what it does is ultimately

24 result in our, the Defence attorneys, in our case, at least, to be giving

25 ineffective assistance of counsel to our client. We cannot, if the Court

1 is seized with information this critical, be able to have our case

2 presented when the Court has information that we, as Defence counsel,

3 don't even know about, that our client has no information about, because

4 from at least my review of this person's statement, there was never any

5 contact specifically with Mr. Beara. It's trial by ambush because it

6 prejudices our rights to be able to come to the Court with any - thank

7 you - with any sense of credibility to tell you what we think the facts

8 are and how we think the inferences should be applied.

9 This evidence, we suggest, should have been given to us very early

10 in the case, before even August of 2006, which is before the trial

11 proceedings. I know this witness gave a statement in August of 2006, but

12 we should have had the deceased declarant's statements, plural, as well as

13 his purported testimony - if it's accurate that he gave that testimony -

14 well before the trial started so we can consult and properly advise and

15 inform our client of his rights.

16 So I'm suggesting today that we suspend the proceedings with

17 respect to this witness and any other Zvornik Brigade witnesses until

18 we've had ample time to obtain from the Prosecutor all the documents in

19 connection with PW-108 and this deceased individual, as well as the

20 documents, the physical documents that this deceased person apparently

21 gave to his brother that's mentioned in the statement, whose name I can

22 give the Court in private session if the Court desires.

23 We're only given one statement with various conclusions. Even if

24 we were to apply Rule 92 quater, it doesn't in my view, respectfully --

25 it's not applicable because 92 quater clearly says that if it goes to the

1 acts and conduct of the accused, the Court may look at that as a reason

2 not to admit certain evidence of a declarant. We don't believe it's

3 applicable in this case.

4 We urge this Court, and I know we've asked you for many things and

5 have been rejected on some and we've been granted some motions that we

6 filed, it's an important issue because we have not had an opportunity to

7 consult with our client, with our co-counsel in this case, and I believe

8 that there is grave prejudice that's being committed in this Chamber with

9 respect to this trial by giving this Trial Chamber specifically

10 information and facts and not sharing it with the Defence or the Defence

11 attorneys.

12 So that's my request, Your Honour, this morning. Thank you.

13 JUDGE AGIUS: Thank you.

14 Who is going to respond to that?

15 To be precise, you -- just in case anyone has any doubts in their

16 mind, we're talking of the motion which was filed yesterday evening, or

17 yesterday, anyway, and that's a confidential ex parte motion on the part

18 of the Prosecution on 14/5, and then the annex, which is the annex part of

19 the document referring to who would be Witness PW-108, and that would be

20 Witness number 166. Is that correct?

21 MR. THAYER: That's correct, Mr. President.

22 JUDGE AGIUS: And when is he scheduled or she scheduled not just

23 to give any information, when is the witness scheduled to testify?

24 MR. THAYER: I advised my learned colleague, Mr. President, that

25 we will be issuing our schedule today. I believe he is scheduled to

1 testify 18 and 19 of June.

2 JUDGE AGIUS: Eighteen or 19 of June. All right, so we have

3 another month from -- another month from now.

4 I noticed Ms. Nikolic on her feet. Yes, go ahead, Ms. Nikolic.

5 And I will give you an opportunity to respond as soon as I hear also what

6 Ms. Nikolic has to say. I presume on the same subject, isn't it? Yes, go

7 ahead, Ms. Nikolic.

8 MS. NIKOLIC: [Interpretation] Good morning, Your Honours, and

9 thank you.

10 Before I respond to the Prosecution, maybe it would be a good idea

11 for this Defence team to complete its presentation regarding the latest

12 situation.

13 I fully join in everything that Mr. Ostojic said on behalf of his

14 client, and I subscribe to it in full, especially with regard to the

15 witness Mr. Jovicic who is to be cross-examined today.

16 The Defence teams have prepared for cross-examination limited only

17 to the evidence we have so far. However, in the present situation, the

18 minimum that I would request would be to delay cross-examination for 24

19 hours in order to enable us to consult with clients, to present them with

20 the statement of Witness PW-108, and in view of that, to prepare for

21 further cross-examination.

22 In addition to that, in this trial at least three or four

23 witnesses have been heard from the staff of the Zvornik Brigade who were

24 present in the building of the staff in Karakaj during the critical

25 events, and if we had known about all these circumstances we would have

1 questioned them about certain personalities such as Witness 108 and 102.

2 Therefore, I fully support Mr. Ostojic in what he said, and I believe that

3 this way of disclosure is prejudicial to the Defence and could affect the

4 fair and equitable trial of our clients.

5 JUDGE AGIUS: Yes, Mr. Thayer. Do you wish to respond?

6 MR. THAYER: Thank you, Mr. President. Good morning to you and

7 Your Honours. Good morning, everyone.

8 Just initially, with every best wish to the current witness, I

9 hope nobody is gone for good once they leave the Trial Chamber. The fact

10 is that any of these witnesses can be recalled at a later date, and what

11 is important, I think, to note, and as we've discussed already, the 30-day

12 notice in this case is specifically designed to delay the disclosure about

13 which my friends are complaining, but the Prosecution believes it has

14 ample good-faith basis for seeking that delayed disclosure, and that is

15 why it has come at this time.

16 If I may move into closed session, Your Honour, or private session

17 just for a moment.

18 JUDGE AGIUS: Yes, by all means. Let's go into private session.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 JUDGE AGIUS: We are in open session.

17 MR. THAYER: And I'll just repeat a little bit of what I said in

18 closed session.

19 The circumstances surrounding the application for delayed

20 disclosure with respect to this witness, PW-108, are precisely those

21 anticipated by the delayed disclosure rule.

22 With respect to my learned friends' concern about ability to

23 cross-examine adequately the current witness, again, this witness can be

24 recalled at a later date on that very limited issue. We have currently

25 scheduled this witness to appear 19 June. The exhibit list in connection

1 with PW-108 will be part of this afternoon's filing. That will come,

2 clearly, too late, I think, to cross-examine this witness with anything

3 that's on there that's not contained in the statement that's already been

4 disclosed to Defence counsel, unless we keep this witness here for however

5 long my learned friends believe they need to prepare.

6 This is not trial by ambush. This has never been trial by ambush,

7 Your Honours. This is the Prosecution reacting to the assassination of a

8 witness and taking every full measure it can to make sure that that does

9 not happen to any of its other witnesses. There was simply, given the

10 court schedule or given the trial schedule, the way the witnesses have

11 developed, and this is when this witness fell into the witness order. We

12 have complied with the rule. If my learned friends feel that there is any

13 witness that has been called that they need to question about the identity

14 of this witness, then we will make every effort to bring those witnesses

15 back.

16 I think that is about as much as I can say on this issue at this

17 time, Your Honours.

18 JUDGE AGIUS: Yes, Mr. Ostojic.

19 MR. OSTOJIC: Your Honour, we've raised our voices and we've been

20 very emotional at times, and quite candidly I think it's not fair, and

21 it's not fair and what Mr. Thayer has now said is just -- as we have from

22 time to time have said, is just not accurate.

23 The information, just from gleaning on PW-108's statement is

24 clear, that the witness that they claim was assassinated, for whatever the

25 reason is, whether it was an involvement, they're trying to make a

1 connection with his testimony here. I don't know anything about the

2 assassination. It's the first time I'm hearing about it now.

3 However, looking at PW-108's statement, it's clear that the

4 statement itself that this deceased individual gave had the name of a

5 pseudonym on the statement. It removed any identity of who this

6 individual is. They could have, if they wanted to, without prejudicing

7 our rights and without violating the right of equality of arms in this

8 trial, without committing a trial by ambush, they could have given us

9 those documents of the deceased individual with as many or as few

10 redactions as they previously have done with other instances.

11 It's just not accurate to represent to this Court at any time that

12 they are trying to protect a witness because a witness came to this

13 Tribunal in order to get -- and was assassinated as a result of that. I

14 don't have that information, but it's inaccurate to say that, "Our hands

15 were tied and couldn't produce that to the Defence counsel."

16 They had other means, both by rules and as innovative as they are

17 with how they present evidence to this Trial Chamber, I must say I feel

18 that the Trial Chamber has been prejudiced by reviewing this and allowing

19 us, as Defence counsel, ineffectively to assist the accused and our

20 clients in this case, by taking one route, while the entire time they are

21 filing ex parte and confidential annexes with the Trial Chamber, with very

22 vague statements as to who these individuals are and not even telling us

23 who the conduct of the statements that they are presenting of witnesses

24 may or may not relate to.

25 I do not find that Mr. Thayer's comments, quite fairly and

1 respectfully to him personally, are accurate and fair. The witnesses'

2 statements that they had of the deceased individual did not reveal his

3 name. That's what I can glean from PW-108's interview. They could have

4 provided it to us. They could have provided us a summary as they have in

5 their 65 ter list. They failed to follow any rule of procedure in this

6 Court. If we had known this information, we would have perhaps taken a

7 different route on the defence. To suggest that there is a remedy that we

8 can call witnesses back is simply an attempt to try to shift the burden of

9 proof to the defendants, and I can try to explain as to how.

10 We're not having this trial in a piecemeal fashion where we can

11 bring a witness in and say, "Yes, Judge, I forgot to ask a question. Can

12 we bring him back in?" All the witnesses, quite candidly, if you look at

13 it, should be brought back for further examination. That would be, quite

14 candidly, a miscarriage of justice if we did that.

15 It's not a remedy to bring a witness back. We shouldn't even

16 discuss a remedy. They should have given us the statements in a redacted

17 version or in the version that they currently have, with the pseudonym of

18 this individual, so the Defence in August prior to -- or I should say in

19 July of '06, prior to the commencement of this trial, had all the evidence

20 as it is prescribed by the Rules of Procedure and Evidence in this case.

21 It's patently not fair; the Prosecution knows it's a trial by

22 ambush. That's why they sit here and they give the Court annexes which

23 are ex parte. We objected to the filing in August when they made the

24 application only because we sensed that there was just something unfair. I

25 invite the Court to look at the filing and what they say about PW-108.

1 They describe it in a very benign manner. They do not tell us, the

2 Defence counsel, who this witness may or may not be against. They could

3 have done that without prejudicing or waiving any rights that they have.

4 Counsel, I respectfully say, does not have the right to say that

5 we have an ability to cross-examine the witness unless he's put in that

6 place. I invite the Court, if you're going to do anything, to suspend the

7 proceedings and order that the OTP produce all documents, not just the

8 witness statements that we have now, but the prior witness statements, the

9 testimony of this witness that is deceased, as well as the records that

10 this witness has -- that had in connection with what purports to be his

11 investigation. I urge this Trial Chamber to do it so that we could try to

12 proceed, and I don't know -- and I truly believe but I think it might be

13 too late, but try to proceed and have a fair trial in this case.

14 But I think that it may be too late and that the Prosecutor has

15 prejudiced the rights of all the accused here.

16 Thank you, Mr. President and Your Honours.

17 JUDGE AGIUS: Thank you, Mr. Ostojic. Do you wish to comment any

18 further? And there is one or two questions I would like to ask you.

19 Obviously, I think I'm speaking for myself, but this motion has basically

20 appeared before us this morning and I notice now that it has got, amongst

21 it, annexes, statement interview -- OTP interview statement which goes

22 back to 2006.

23 Again, I may be asking a question based on my lack of full

24 information, but is there a reason why you annexed that statement to the

25 motion?

1 MR. OSTOJIC: I think I can answer, Your Honour, and I can be

2 honest with the Court, why they gave it to you.

3 JUDGE AGIUS: Yes, but I'm asking Mr. Thayer for the time being,

4 not you, Mr. Ostojic. If you don't agree with his answer, then -- please

5 sit down.

6 MR. THAYER: Your Honour, I wasn't part of the filing of the

7 motion, but the best answer I can give Your Honour is I think that's

8 consistent with our prior practice with respect to these sensitive

9 witnesses. We've only filed, I think, one or two other such motions for

10 delayed disclosure. When we've done that, we've attached these documents

11 to give the Court a full understanding of the context as to the importance

12 and sensitive nature of the Prosecution's application. We offer that so

13 that the Court can make its decision based on appropriate and full -- as

14 full information as we can provide in the filing.

15 JUDGE AGIUS: What I mean -- I think my question has been

16 misunderstood or I didn't put it clear enough.

17 The question of delayed disclosure is a matter that we decided

18 earlier on already. On that occasion, again, I can't even rely on my

19 memory now because I definitely don't have a recollection of it. We might

20 have had, as an annex, the statement. But now we have come to a stage

21 where the identity of this witness is being disclosed in accordance with

22 our decision, that is, 30 days prior to his expected testimony, and that's

23 why I asked you, because basically you gave an indication of the week of

24 11 June, but not a specific indication that I wanted to know, so why give

25 us again the statement?

1 MR. THAYER: Your Honour, the honest answer is, beyond what I

2 said, I'm not sure. We may have provided it just to give the Court --

3 remind the Court what the context was. It may have -- if I may consult

4 with Ms. Stewart for one second. I just need to find out whether it

5 was --

6 JUDGE AGIUS: All right. And the other question is: Would the

7 existing statements of the deceased person, the one you qualified as

8 assassinated, have they been disclosed to the Defence or not?

9 MR. THAYER: Those have not been disclosed, Your Honour. To the

10 extent that PW-108 would be referring to them, I believe that those may be

11 part of the exhibits that will be listed today on the Prosecution's June

12 filing.

13 JUDGE AGIUS: All right, thank you.

14 Yes, Mr. Ostojic.

15 MR. OSTOJIC: Your Honour, I just don't understand what they're

16 trying to do. PW-108 was asked questions, and all they did was read from

17 the deceased person's statements. It's clear, I'm ashamed to tell the

18 Court that if you had this statement, I feel the Court truly should have

19 taken a different route. I don't know if the Court had it. I know you

20 had a confidential annex. I hear from the Court, on page 15, that -- and

21 I'm not sure if I heard you correctly, Your Honour. I hope you didn't

22 have this statement all the way before in August, because I -- oh, thank

23 you. I see some nodding and I wasn't sure of that. We don't know what

24 the annex is.

25 For Mr. Thayer to suggest to this Court that, "We didn't give the

1 statements because this witness is going to testify on his own," let

2 anyone look through PW-108's statement. They clearly only read -- they

3 read from the deceased individual's thing to confirm whether or not he saw

4 something. I not only want the statements, I respectfully request that we

5 get the testimony, and I would like on the record to know which case it is

6 and if he testified live or if he testified under a pseudonym, which

7 pseudonym number it is in the other case. We can go into private session

8 for that. And I want to know the documents that this deceased individual

9 and his brother apparently continue to have in their possession in his

10 home -- the brother, I should say, has in his home.

11 It's clearly -- the answer to your question is: Prejudiced.

12 This Trial Chamber needs to be prejudiced. That's what Mr. Thayer should

13 have said. That's why they attached the annex --

14 THE INTERPRETER: Slow down, please.

15 JUDGE AGIUS: Slow down.

16 MR. OSTOJIC: That's why they attached the annex to the motion.

17 There is no reasonable avenue or option or reason logically that they

18 would have attached this statement other than to poison the well, quite

19 candidly.

20 JUDGE AGIUS: All right. I think we've heard enough. We need to

21 suspend the sitting for a short while.

22 [Trial Chamber confers]

23 MR. THAYER: Mr. President --

24 JUDGE AGIUS: So one -- perhaps you can first give us an answer

25 why this statement --

1 MR. THAYER: Yes, and I --

2 JUDGE AGIUS: -- was appended now when, to our knowledge, at

3 least, it was never appended before, so --

4 MR. THAYER: I asked leave to consult with Ms. Stewart because I

5 wanted to find out --

6 JUDGE AGIUS: Fortunately, we have not read it. I mean, I speak

7 for --

8 JUDGE KWON: Didn't have time.

9 JUDGE AGIUS: Didn't have time, but yes.

10 MR. OSTOJIC: It seems the Court reads many statements before we

11 do, so that's why we assumed the Court did, with all due respect.

12 JUDGE AGIUS: We only saw the motion -- actually, it was on our

13 desk this morning when we came in, and we simply never had the time to

14 even -- in fact, I brought it here with me, seeing that it is a motion

15 requesting protective measures more than anything else, to find out when

16 this witness is coming to give evidence and to see whether there would be

17 the usual no-opposition response from the parties; and that gives you an

18 indication of how much we have read from the motion.

19 So, yes, Mr. Thayer.

20 MR. THAYER: And to that extent, Your Honour, I'm in somewhat the

21 same boat. Having just looked at the motion, the best answer I can give

22 the Court is: As it is a motion for protective measures, attaching the

23 statement seems to be a logical way of providing the Court with the

24 factual grounds in seeking actual protective measures for this witness

25 once he's here, understanding that the Court has already granted the

1 delayed disclosure and there's been a certain amount of analysis that's

2 gone, we can't just rest on that in seeking actual protective measures for

3 the motion. I imagine that's the reason why the statement was filed.

4 If I can add just one other piece of information. From quickly

5 looking at the prior filing, it appears the statement was not appended to

6 our prior application, just I think a 65 ter summary and that was it, so I

7 just wanted to clarify that.

8 JUDGE AGIUS: I think that's clear for the record, because the

9 practice varies from Chamber to Chamber here, and there are some Chambers

10 who insist in having these and other similar documents beforehand. We

11 have chosen the other way, and we have chosen the other way not to show

12 any criticism to the practice as adopted in other Chambers, but because we

13 believe that is the practice that we should adopt for this Chamber, and I

14 would leave it at that. But that's across the board.

15 I mean, if you had filed it in the first place when you had the

16 first motion for delayed disclosure, we would have reacted more or less

17 the same, the same way. I mean, it's -- we're not talking of mortal sins

18 here. It's a question of a choice that we have made not to be -- not to

19 have at our disposal, before a witness starts, his previous statements,

20 unless we're talking, of course, of a 92 ter or a 92 bis witness.

21 And the last thing, Mr. Thayer, the last point: These statements

22 of the deceased person, if he was intended as a witness, as it seems to

23 be, was he, according to you, assassinated when he was about to travel to

24 give evidence in this case or in another case?

25 MR. THAYER: Your Honour, my understanding is he was killed prior

1 to --

2 [Trial Chamber confers]

3 JUDGE AGIUS: Okay. I think we can leave it. Go ahead, we can

4 stay in open session, yes.

5 And the reason why I want to really know is if he was a witness

6 intended to testify at this trial, how come his previous statements have

7 not been disclosed to the Defence, if I have understood you correctly,

8 because I am beginning to wonder if I'm understanding the whole picture?

9 MR. THAYER: I think we're all on the same page with respect to

10 this point, Your Honour, and that is my understanding is that the witness

11 who was killed was killed prior to the filing of the Prosecution's 65 ter

12 witness list. That is my understanding.

13 If we may move into private session just for a brief moment.

14 JUDGE AGIUS: Okay, then let's go into private session, yes.

15 MR. THAYER: My understanding is --

16 JUDGE AGIUS: One moment.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 JUDGE AGIUS: Yes, go ahead. You can start again, Mr. Bourgon,

15 please.

16 MR. BOURGON: Thank you, Mr. President. The idea we will not

17 mention either the name of the deceased person, but what I will say is

18 that on numerous occasions the Prosecution has used the death of this

19 witness as a reason to obtain protective measures for witnesses in this

20 case. The Defence has opposed the information which was provided by the

21 Prosecution, which was pure speculation. On the other hand, we have

22 provided the Trial Chamber with newspaper clips that would clearly

23 establish that this witness had been killed in the context of being a

24 witness (redacted), nothing to do with this Tribunal. Of course,

25 the Prosecution opposed that and they say that's not true.

1 And what my colleague just said, that he was on his way to be a

2 witness here or to be interviewed here, I don't have the exact wording.

3 To my recollection, what the Prosecution mentioned in its filing is that

4 the witness was due to be interviewed, but in any respect, whatever the

5 Prosecution said, it is in writing in the filings that they presented

6 before this Chamber.

7 Now, what I wanted to say at this point in time, Mr. President, is

8 that the issue - and I join with what Mr. Ostojic just said - the issue is

9 we do not know what information was in the possession of the

10 Trial Chamber, because there was some information in this annex that was

11 appended to the motion. And we opposed strongly the fact that we were not

12 told not only the identity, not only the statement, not even the topic of

13 the statement, and against which of the accused in this courtroom this

14 person was due to testify. We were completely in the dark. Our motions

15 were denied. So be it. The Trial Chamber can rule on it.

16 At a later point, and I can't recall now if this was before the

17 ruling of the Chamber or immediately after, I stood up again before you,

18 asking to know -- I said, "Mr. President, we are going -- we are taking

19 the wrong route, whereas there's a witness out there, we don't know who he

20 is, we don't know what he will say, we don't know against whom he will

21 testify, and we need to be told at least some information."

22 Now, at this point in time we -- it is too early for us to tell

23 how serious this violation is, but for sure we are of the view that there

24 is a severe violation of the rights of the accused. And at this point in

25 time, while it's too early to take any measures or for any filings or for

1 any requests, our only request at this time, at least we can consult with

2 our clients, at least share the information which must have been said

3 before I arrived, is only in English and not in the language of the

4 accused, so that the accused has to read that information, that we can sit

5 down with them, take instructions, and at the same time do a proper

6 analysis of the motions that were filed previously, what the decision of

7 the Chamber was, and then we can tell you tomorrow morning what is the

8 course of action.

9 But my colleague has already expressed what our request is in

10 terms of Zvornik Brigade witnesses as well as in respect of this witness

11 that is in the box today, and as a minimum, Mr. President, we respectfully

12 request an adjournment until tomorrow morning, where we can address you

13 and tell you exactly what our position is after we've had time to properly

14 take instructions from our client.

15 Thank you, Mr. President.

16 JUDGE AGIUS: [Microphone not activated] As I see it, because I

17 think certain arguments are going beyond what would appear to be strictly

18 relevant.

19 The statement you now have, and it has been disclosed in

20 accordance or pursuant to our previous decision of the late disclosure, so

21 you have it. What you don't have is any possible previous statements of

22 the deceased persons, and that is, I think, what is at the crux of the

23 matter.

24 Madame Fauveau, and I will give you the floor, and you,

25 Mr. Ostojic, and then we conclude, please.

1 Yes, Madame Fauveau.

2 MS. FAUVEAU: [Interpretation] Your Honour, I just wanted to say a

3 few words about a restricted subject.

4 I support completely Mr. Bourgon, and I want to add, concerning

5 the death of this witness, when this person was killed last year, the

6 Prosecution himself admitted that he had no evidence that this person was

7 killed in connection with this Tribunal or his evidence before this

8 Tribunal.

9 I find it extremely offensive to us, the Defence, that every time

10 the Prosecution needs it, he raises this issue, because by raising this

11 issue, the killing of this witness, allegedly linked with the Defence, the

12 Prosecution implies in a certain way that the Defence could be implicated,

13 while having absolutely no evidence of that.

14 I hope that the Prosecution will stop referring to this killing

15 without presenting any evidence that this killing is in any way related to

16 this Tribunal or the testimony of this witness before the Tribunal. I

17 believe that every future reference to this murder, implying that it is

18 somehow connected to this trial, should be seen as pressure on the

19 Defence, because we are already under other pressures, and I believe that

20 the inference that this Defence is somehow implicated or involved or

21 related to this is insulting.

22 JUDGE AGIUS: I had seen you standing, Mr. Ostojic. Do you wish

23 to add anything or --

24 MR. OSTOJIC: Without repeating, Your Honour, I just want to

25 pointer out --

1 JUDGE AGIUS: I hope so --

2 MR. OSTOJIC: I won't, Your Honour, but I just wanted to point out

3 to the Court, the Court asked the pointed and specific question to the

4 Prosecutor, "Why did you attach the interview," and he seemed to indicate

5 that it was some custom and practice. And I wanted to raise with the

6 Court -- and the Court was correct in saying he could have simply done it

7 in a paragraph to share what fears this witness may have, he could have

8 talked to the Defence counsel who have been, I think, quite candidly, more

9 than reasonable in not objecting to requests for pseudonyms or voice or

10 face distortion. We've not been unreasonable in any of their requests,

11 and I strongly believe, not only in my heart but in my gut, but I strongly

12 believe that there's only one reason why this annex was attached. And I

13 would ask this Court to return that motion and to return that annex, so

14 the Defence can have an ample opportunity to decide what exactly our next

15 step or tactic might be.

16 One final point that I think I failed to mention with respect to

17 my client Mr. Beara, I have not consulted with him on this. We came in

18 this morning. We got it last night. We were yesterday in the UNDU until

19 8.00 meeting with him on other matters. This motion was given to us late.

20 I think he has an opportunity, although Mr. Thayer talks about prejudice

21 and he talks about protecting other witnesses, and bringing other

22 witnesses -- this trial and the proceedings and the rule is to protect the

23 accused's rights, and those are, first and foremost, the rights that we

24 should be looking to protect.

25 The Office of the Prosecutor never raises those issues because we

1 think and we believe that we know what their opinion is in this regard,

2 and now their actions I think have spoken louder than words by producing

3 and giving to this Trial Chamber such a statement without even consulting

4 with us or even discussing it with the Trial Chamber, and giving it to us

5 in piecemeal form.

6 Thank you, Mr. President.

7 JUDGE AGIUS: Thank you. Any further last comments, Mr. Thayer?

8 MR. THAYER: Your Honour, just three brief items I need to raise.

9 The first one is I need to ask for a redaction at page 20, lines

10 20 to 24.

11 JUDGE AGIUS: One moment. Let me follow you. Page --

12 MR. THAYER: Page 20 of our LiveNote, lines 20 to 24. There is a

13 reference to another specific case or trial, and I --

14 JUDGE AGIUS: Why should it be redacted?

15 MR. THAYER: If I may go into private session just briefly,

16 Your Honour.

17 JUDGE AGIUS: Okay. Let's go into private session.

18 MR. THAYER: Mr. Bourgon --

19 JUDGE AGIUS: One moment.

20 [Private session]

21 (redacted)

22 (redacted)

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16 (redacted)

17 [Open session]

18 [Trial Chamber confers]

19 JUDGE AGIUS: Let's go back to open session -- to private session,

20 please.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

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4

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11 Pages 11523-11524 redacted. Private session

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1 (redacted)

2 (redacted)

3 [Open session]

4 MR. THAYER: My second point, Your Honour, is I wanted to respond

5 to the query from Your Honour and the issue raised by my friend concerning

6 the statements and other exhibits in connection with the deceased witness.

7 We will make all of those materials available. As I said, I

8 believe those materials will be part of the exhibit or statements package,

9 related materials, with respect to PW-108, so that material we will get to

10 the Defence. They will have that. The only issue is will they have it in

11 time, for example, for the current witness on the stand to be able to

12 process and prepare for cross-examination.

13 Finally, Your Honour, with respect to the Court's discomfort with

14 the annexation of the statement, if the Court wishes to completely

15 disregard the statement in the context of its decision, we understand

16 that. We can make whatever submissions are necessary without referring to

17 the specific statement. We understand that. We -- and we will be guided

18 by the Court's preference and practice in that regard.

19 JUDGE AGIUS: Yes. Please, let's conclude this so that -- before

20 you speak, let's take a decision on the redaction and then continue and

21 finish the debate.

22 [Trial Chamber confers]

23 JUDGE AGIUS: So let's go to private session for a very short

24 while, please.

25 [Private session]

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

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19 [Open session]

20 JUDGE AGIUS: Yes, Mr. Bourgon.

21 MR. BOURGON: Very shortly, Mr. President, to try to close the

22 debate, my colleague has just mentioned, and I quote his words, "We will

23 make all those materials available," and a couple of lines down, I'm

24 quoting from page 29 now, lines 8 to 10: "The only issue is will they

25 have it in time, for example, the current witness on the stand to be able

1 to process and prepare for cross-examination."

2 Mr. President, what the issue is before you this morning and what

3 the Prosecution fails to grasp is that the new information we have been

4 served with yesterday has a bearing and an impact on a number of witnesses

5 that have appeared thus far before the Trial Chamber, and this is what we

6 need to assess, this is what we need to discuss with our clients, and this

7 is what we need to argue before a Trial Chamber at a later time to see

8 what is the proper remedy for this new information that comes more than

9 halfway through this trial. And this, we believe, was done voluntarily

10 not for protective measures, this was done voluntarily as trial tactics on

11 behalf of the Prosecution. This is our opinion, this is what we believe

12 in, and this is what we will argue as part of our arguments tomorrow.

13 Thank you, Mr. President.

14 JUDGE AGIUS: Okay, thank you.

15 I think we can suspend now the sitting for some time, until we

16 discuss and deliberate. Okay.

17 We'll let you know exactly when we will reconvene, because

18 obviously I haven't got a clue as to how much time we require to discuss,

19 but I anticipate a minimum of about 20 minutes, at least, something like

20 that.

21 --- Break taken at 10.06 a.m.

22 --- On resuming at 11.09 a.m.

23 JUDGE AGIUS: So we are reconvened. I notice the absence of

24 Mr. Meek. I don't need to put on record -- they are coming; okay. Then I

25 don't need to put on the record that Mr. Bourgon showed up during the

1 previous session because his interventions speak for themselves and for

2 his presence.

3 All right. We'll try and address the various issues that have

4 been raised and decide them.

5 First, we deal with the question or the request that has been made

6 for the postponing of the testimony of the present witness, the one who

7 was testifying yesterday and with whose cross-examination we should have

8 continued, as well as the request that has been forecast as to the

9 possible recalling of the need to recall and further cross-examine

10 previous witnesses.

11 Our position and our decision is as follows: With this current

12 witness, Vojicic -- What is his name?

13 MR. THAYER: Jovicic, Mr. President.

14 JUDGE AGIUS: Jovicic, and, for that matter, any other witness

15 that the Defence may wish to cross-examine further in the light of the

16 statement to the OTP of would-be Witness PW-108, and the statements of the

17 deceased witness whose name I am not going to mention but who is mentioned

18 in the Prosecution's confidential motion of yesterday, the Trial Chamber

19 will make a provision for such further recalling and cross-examination

20 once an ad hoc request is made by any of the Defence teams and accepted by

21 the Trial Chamber. In the meantime, however, we will proceed with the

22 cross-examination of the mentioned -- the above-mentioned witness,

23 Jovicic.

24 We come next to the would-be Witness PW-108, 108's statement to

25 the OTP, the 2006 statement attached to the Prosecution confidential

1 motion already mentioned, that is, the one which was filed yesterday, and

2 with which we became familiar this morning.

3 Given the preference that the Judges composing this Trial Chamber

4 have indicated at the start of trial, the Trial Chamber does not require

5 the said statement and decides to expunge it from the records. We also

6 enjoin or invite the Office of the Prosecutor not to file such material

7 with this Chamber in future unless such material is specifically asked for

8 by the Trial Chamber, although we do appreciate that it is an accepted

9 practice with other Chambers to have such statements attached to motions.

10 The reason -- we also wish to make clear that the reason for our choice is

11 our preference, individually, and I say "individually" because in the

12 beginning I made it clear that everyone -- every Judge in this Trial

13 Chamber was free to adopt a different system if she or he wished to do so,

14 but the four of us agreed to adopt a uniform system. The reason for our

15 choice is our preference for direct and oral testimony and not because of

16 any concern that we would be biased if we had such material available

17 beforehand and if we read it beforehand. I wish to make this clear.

18 The Trial Chamber wishes to add that none of its members have read

19 the statement attached to the Prosecution's confidential motion filed

20 yesterday, and that the same statement did not form part of the 2006

21 Prosecution motion for delayed disclosure.

22 You will recall that we had decided that motion on the 9th of

23 February of this year, and any future reference to that decision is

24 specifically to the 9th February decision.

25 The Trial Chamber, however, wishes to disassociate itself from any

1 suggestion that the filing of such material such as previous statements of

2 witnesses is improper or that adherent in such filing is the intention to

3 unduly influence the Judges. In other words, we are disassociating

4 ourselves completely from deducting from the fact of such filing the

5 intention to unduly influence the Judges.

6 With reference to the statements of the deceased person, again I

7 won't mention his name, we require the Prosecution to disclose to the

8 Defence that material without further delay.

9 Finally, we come to the criticism that some Defence teams have

10 levelled at the Trial Chamber's previous decision on the late disclosure.

11 It is now the decision of the 9th February 2006. Such decisions are never

12 the preference of the Defence, but they are sometimes necessary and are

13 provided for by our Rules. The Trial Chamber has already taken its

14 decision, striking a proper balance between -- a proper balance in

15 accordance with the Statute, Rules and jurisprudence of this Tribunal, and

16 we have nothing else to add to this.

17 So that disposes of the various matters that have been raised, and

18 we are now ready to continue.

19 Mr. Bourgon.

20 MR. BOURGON: Thank you, Mr. President.

21 Mr. President, we take good note of the Trial Chamber's decision.

22 However, I would like to maybe seek clarification with respect to Annex A

23 which was joined to the motion -- the annexes which were joined to the

24 Prosecution motion requesting this additional witness. This material is

25 necessary for us in order to assess the situation, and we believe,

1 Mr. President, that the situation is more serious than what is being

2 considered presently, and this material is required for us to assess.

3 [The witness entered court]

4 [Trial Chamber confers]

5 JUDGE AGIUS: I think, Mr. Bourgon, I mean, we can say very little

6 on this. It has been filed as an ex parte, and once it is filed an ex

7 parte, I mean, we can't change the nature of that filing. It's up to the

8 Prosecution to decide whether they want to give it to you or not, and

9 perhaps you may have consultations with the Prosecution on that. But once

10 it has been filed ex parte, we cannot change it into confidential or to a

11 public filing.

12 MR. BOURGON: Mr. President, I think I need to address the

13 Trial Chamber. I don't know if the witness has to stay here or to remove

14 his earphones, but --

15 JUDGE AGIUS: I don't think it is appropriate for the witness to

16 be present for this discussion that has got nothing to do with him, also

17 to put his mind at rest that we are not discussing him and we haven't been

18 discussing him, basically.

19 We've had some procedural problems to address this morning which

20 were not anticipated. I had no idea yesterday that we would have these

21 problems today, and that is why you have been kept waiting outside in that

22 room. So please, Mr. Jovicic, please accept my apologies for that, but I

23 need you to understand that we need to conclude our discussion on these

24 issues before we can continue with your testimony. This has got nothing

25 to do with you, basically. I mean, we're talking of other issues.

1 So I would suggest -- do you understand English? All right. So I

2 suggest that he leaves the courtroom again, and we'll be calling you back

3 in about five to ten --

4 [Trial Chamber confers]

5 JUDGE AGIUS: One moment, one moment. Judge Prost has come up

6 with a better suggestion, namely, to go ahead and finish the

7 cross-examination of this witness and then we address the matter that you

8 raised, Mr. Bourgon, immediately after.

9 MR. BOURGON: I take it, Mr. President, that then there will be a

10 possibility for us to recall this witness, because --

11 JUDGE AGIUS: I think I have already stated, in the beginning of

12 our decision, that both as regards this witness and others that you may

13 wish to recall for further cross-examination, we'll decide those matters

14 once we are seized with an ad hoc request, and of course it is at least,

15 on the face of it, a justified one.

16 So let's continue. We've decided to continue our discussion after

17 we finish with your testimony first.

18 WITNESS: MILANKO JOVICIC [Resumed]

19 [Witness answered through interpreter]

20 JUDGE AGIUS: Yesterday we had come to the Beara Defence team

21 which had asked for a postponement, so Mr. Meek, I suppose, if you are

22 ready, we can proceed with your cross-examination, and then the Nikolic

23 and finally the Pandurevic Defence teams.

24 Cross-examination by Mr. Meek:

25 Q. Good morning, Witness.

1 A. Good morning.

2 Q. How are you today?

3 A. Very well, thank you.

4 Q. Sir, you were telling us yesterday that one of the functions of an

5 operations duty officer would be to make a written account in the logbook,

6 such as the logbook that you have in front of you now, that you had sent

7 out a request or an order, for example, to a battalion; is that correct,

8 sir?

9 A. I didn't send a request to the battalion, but I am obliged to

10 record everything that comes in through the duty telephone, as the

11 operations duty officer. I only had a request for the R Battalion. I

12 don't recall the order, but I did read it because the duty operations

13 officer can receive an order that he would need to read to all of the

14 battalions or to the individual battalions.

15 Q. Sir, would it be fair that as an operations duty officer, you

16 might receive a call, for example, asking you to contact a person in a

17 battalion and request -- or give them information, for example, or check

18 on a situation? Would that be a fair statement?

19 A. I can receive a request or a call as operations duty officer to

20 call somebody who's supposed to call back or to convey the request to him,

21 but then I would need to note down what I received and what I conveyed.

22 Q. Sir, thank you. I think that's how I understood your testimony.

23 So in the normal course of your job description you gave yesterday, as an

24 operations duty log officer, you're expected to respond or acknowledge the

25 request which has been made or passed through you, whether it's been

1 completed if you hear back; is that true too?

2 A. That is correct. I was obliged to convey it, that is all. I

3 don't know about whether it was completed or not. The person who was

4 supposed to do it would need to report back once it was completed.

5 Q. And, sir, wouldn't that happen on a lot of occasions or most

6 occasions?

7 A. I don't know. I wasn't the operations duty officer frequently, so

8 I cannot really say if this would happen a lot or not.

9 Q. Now, if it did happen, though, and it came through you, you

10 would -- as you testified yesterday, it would be one of your obligations

11 to write that down, what you were told?

12 A. Yes.

13 Q. Now, I noticed that in the book that you have in front of you,

14 which is P0070 --

15 MR. THAYER: 377.

16 MR. MEEK:

17 Q. -- 377, it's important, is it not, that you, as a duty operations

18 officer, would make your notations with an ink pen? Is that correct, sir?

19 A. That is how I did it. I used an ink pen.

20 Q. And I noticed in -- I notice, sir, in your statement that you gave

21 to the Office of the Prosecutor, that they showed you this logbook from

22 the Zvornik Brigade and you looked through it, and you observed some of

23 your handwriting; is that correct, sir?

24 A. Correct.

25 Q. And we've looked at that yesterday. The reason -- let me ask you,

1 the reason you would use ink is so that the messages you receive or that

2 flow through you and come back to you, perhaps, cannot be erased, changed,

3 modified or falsified? Would you agree with that, sir?

4 A. That is quite logical.

5 Q. And if you could, sir, would you just briefly look through the

6 exhibit in front of you, the actual Exhibit P00377, and flip through there

7 and tell me, sir, isn't it true that the notations in that book, starting

8 from the first page on, are in ink?

9 A. Yes, so that you don't have to wait any more, 90 per cent or

10 almost 95 per cent of what I looked at is written in ink. Perhaps if an

11 ink pen ran out or something, there would be some pencil, but then as soon

12 as they got a fresh pen, they would continue in ink. I think there's only

13 one paragraph that is just written in pencil.

14 Q. Thank you, sir. Now, as I understand your testimony yesterday,

15 you had a practice that when a shift was finished, that -- meaning your

16 shift, from perhaps 6.00 to 6.30 in the morning, the duty officer would

17 come back on duty and they would write the date and then start making

18 their own entries; is that correct?

19 A. [No interpretation]

20 Q. And, sir, what is the importance of writing the dates?

21 A. The date is written so that you could see who was on duty when.

22 Every day, you would write in the date of the duty shift.

23 Q. And it would be normal, would it not, that you would write the

24 date in one time for each day as they began at 6.30 or so in the morning

25 when the duty officer came back on duty; is that correct, sir?

1 A. Yes.

2 JUDGE AGIUS: Before you continue, Mr. Meek, if you look at the

3 transcript, page 39, the previous page, line 20, we do not have on the

4 record the witness's answer to your question, and I think we need it. You

5 need it, we need it.

6 MR. MEEK: I heard it, Judge, but I'll ask it again.

7 JUDGE AGIUS: So did I, I heard it, too, but my attention has been

8 drawn that it is missing from the transcript.

9 MR. MEEK: I appreciate that, Judge, because I didn't see it.

10 Q. Sir, I asked you that the practice that you had was that when a

11 shift was finished, that meaning your shift, perhaps 6.00 or 6.30 in the

12 morning, and then the duty officer came on that morning, the duty officer

13 would write the date and then start making their own entries after that,

14 and I asked you, "Is that correct," do you remember that question?

15 A. Yes, you did ask me, and that was the practice. The assistant

16 operations duty officer would be on duty until the operations duty would

17 come back, and then when he came back, he would write down what he needed

18 to write down.

19 Q. Thank you very much.

20 JUDGE AGIUS: Thank you.

21 MR. MEEK: Thank you, Your Honour.

22 Q. And isn't it also true that another reason that it's very

23 important to write that date down is to memorialise what occurred during

24 that 24-hour period, roughly; is that correct?

25 A. Correct.

1 Q. Now, I think in your testimony or your statement, you indicated

2 that you had looked through the logbook that you have in front of you,

3 P00377, and you didn't notice any irregularities; is that a fair statement

4 or not?

5 A. Correct.

6 Q. Now, could I just briefly have you look at the 14th of July in the

7 book you have in front of you, sir. And for e-court purposes, B/C/S

8 version would be with the ERN number ending with 5744 [Realtime transcript

9 read in error "5754"], and the English version would be ending 9339.

10 Could those be placed on e-court side by side?

11 A. What page is that on?

12 Q. Okay. It would be on the top, sir, you see some stamped numbers

13 on the top of each page?

14 A. I see it, yes.

15 Q. 5744 [Realtime transcript read in error "5754"]. Okay? Do you

16 have that in front of you, sir? We don't have it on e-court yet.

17 A. I see it.

18 JUDGE AGIUS: Okay, all right. I think it's --

19 JUDGE KWON: Page 7 in English?

20 JUDGE AGIUS: Can you help us with that, Mr. Meek, or Mr. Thayer?

21 MR. MEEK: The ERN number for English is 03089339 in the English

22 translation. What page it's one, I'm not sure.

23 MR. THAYER: That's page 7 of the English translation, I believe,

24 and page 126 of the document on e-court, if you can locate that page.

25 JUDGE AGIUS: Okay, thank you. Thank you both.

1 MR. MEEK: Can we have them side by side? Thank you very much.

2 JUDGE PROST: Mr. Meek, before you go on, I think this could

3 confuse us in future. The transcript in two places is talking about ERN

4 ending 5754, but I believe what you said is 5744. Is that correct?

5 MR. MEEK: That's correct.

6 JUDGE PROST: Just so we have it clear when we go back to these

7 pages.

8 MR. MEEK: I'm sorry. I apologise. That's correct.

9 JUDGE AGIUS: Thank you. It's probably not your fault. Thank

10 you, Judge Prost.

11 MR. MEEK:

12 Q. If you take a look at the date on that page, it's down towards the

13 lower right-hand corner, I believe. You can scroll down -- there you go.

14 What does that say, sir?

15 A. "The 14th of July, Jokic."

16 Q. And for the Trial Chamber's information, is that "14 July, Jokic,"

17 is that written in pen or in a pencil?

18 A. Pencil, normal pencil.

19 Q. Okay. Now, what time was that jotted down?

20 A. Let us just clarify something. I was looking at my texts in this

21 book, and you asked me if that was correct. I am not qualified to assess

22 whether the whole logbook is correct. I'm not qualified to assess if

23 somebody put something incorrectly. I have said I'm not a professional

24 soldier. I have a civilian education. I'm a civilian. I really

25 apologise to the Court, but ...

1 Q. No, I understand that, sir. I'm just asking you because you've

2 done this work, and you've already testified yesterday about how important

3 it is to put times the calls came in and the date, so all I'm asking you

4 is just to look and tell me if you can tell me what time that call came

5 in, from your knowledge and experience. That's all.

6 A. I cannot tell you because I was not on duty at the time. I can

7 tell you that when I was on duty, each call was recorded.

8 Q. Okay. But this -- would you agree with me there is no time on

9 this notation?

10 A. That is evident. You can see from the book that it's not there.

11 Q. Thank you very much. Now, if we could just turn to the very next

12 page on both B/C/S and English, which would be, in the B/C/S version,

13 5745, and English, 9340. Okay, thank you very much.

14 Sir, you notice that the very next page, at the top left corner,

15 it has again another date, 14 July; correct?

16 A. Yes.

17 Q. Is that also --

18 A. Normal pencil.

19 Q. Now, and I want you to help me here, sir, if you can. If we go to

20 the very next page in B/C/S and in English, the B/C/S would be 5746,

21 English 9341, thank you, it appears to me -- two questions. One, there

22 was a message taken at 1024 hours, "Asmaci [phoen] informed

23 Lieutenant Davicic [phoen], about the movement of Muslims." Do you see

24 that?

25 A. Yes, I do. Yes.

1 Q. And apparently there's approximately seven hours till it goes to

2 the next entry at 1500 or 3.00 p.m., and there's a notation that

3 says: "Colonel Beara is coming"; correct?

4 A. Yes.

5 Q. Maybe you can help me here, but in those times and especially in

6 the period that we're talking about from the 12th through the 19th of

7 July, 1995, isn't it odd, sir, that there would be seven hours with no

8 radio traffic or no entries in the two logbooks?

9 JUDGE AGIUS: One moment, one moment.

10 THE WITNESS: [Interpretation] Well, then, you should ask the

11 operations duty officer who was on duty at that time.

12 JUDGE AGIUS: One moment. Yes, Mr. Thayer.

13 MR. THAYER: Just a slight clarification for the record. If 1500

14 represents the time, it's five hours.

15 JUDGE AGIUS: This is what I was going to ask, why seven hours. I

16 mean, it's --

17 MR. MEEK: Well, I'm not a mathematician, Judge. It's my fault. I

18 apologise. Five hours' difference is what I meant, if you know.

19 JUDGE AGIUS: Mr. Ostojic already admitted to not being one

20 himself, so that you are in good company.

21 THE WITNESS: [Interpretation] You would need to ask the operations

22 duty officer who was on duty at the time, why he didn't write down

23 anything. I'm not qualified to assess or evaluate why he didn't write

24 anything down.

25 MR. MEEK:

1 Q. Thank you, and I appreciate that. Do you have any idea, if you

2 can help me, who would that duty officer have been that day, so I could

3 ask him?

4 A. I'm not a handwriting expert, and I cannot recognise or recollect

5 handwriting.

6 Q. Okay, thank you very much. We're going to go to the very next

7 page, which would be the 5747 in B/C/S and 9342 in English. Thank you.

8 Witness, since you have the original notebook in front of you, can

9 you confirm we're still on the same day, the 14th of July? I need you to

10 scroll down on the B/C/S, please.

11 A. There is no new date put anywhere, so if we're looking at the

12 handwriting, it should be the same. But to tell you the truth, I'm really

13 not a handwriting specialist, and there is no date written anywhere.

14 Q. We can conclude, though, can't we, sir, that there will not be

15 another date until the next shift comes on in 24 hours? That's what

16 you've testified to, I believe.

17 A. There is no date here. I don't know where the next date is. We

18 would then need to look to see when the next shift started. You have the

19 book, so you can check that yourself.

20 Q. I'll just ask you, I'll ask you real quickly, just for your own

21 purposes go to the page that's got the 5753 real quickly, about four pages

22 over probably in that book. We don't need to put it on the ELMO right now

23 or the e-court. It's on the left side, sir.

24 A. Which part did you say?

25 Q. 5753.

1 A. Yes, it's there.

2 Q. And what does that say, sir, "15 July 1993-- 95"?

3 A. Yes.

4 Q. Is that in pen or is that in pencil, sir?

5 A. Normal pencil.

6 Q. So going back to the page we had before, which was 5747, and in

7 English, I'm sorry, it would be page 10 of the English translation or

8 9342, and if you scroll down a little bit on the English. That's fine,

9 that's fine, okay.

10 Now, there again on the 14th, at 1500, there is a call logged

11 in, "Curkin should pass via Sekovici." Correct? 1500 hours, you see it?

12 Again, sir --

13 A. Yes, yes, I see it.

14 Q. The first question there: Is there any way you can explain how

15 two calls came in at exactly 1500 hours, the one on the page before that

16 said: "Colonel Beara is coming," with other information, and

17 then: "Curkin should pass via Sekovici," at the same time?

18 JUDGE AGIUS: Yes, Mr. Thayer.

19 MR. THAYER: I think the witness has indicated he is limited in

20 the ability for him to interpret other people's entries. At this point, I

21 would object.

22 JUDGE AGIUS: No, just let him answer. If he's in a position to

23 answer it, let him answer it. If he's not, he's intelligent enough to

24 tell us.

25 THE WITNESS: [Interpretation] It's not logical to have two

1 entries that are the same at 1500 hours, but again I apologise to this

2 Honourable Court. I'm not qualified to evaluate the work of others. I can

3 only speak about my own work. I'm really sorry.

4 MR. MEEK:

5 Q. Thank you very much. And, sir, there's nothing to be sorry about

6 at all. Now, just move on -- look on down that page, sir, after -- four

7 or five lines after "730-312 Zlatar".

8 A. Yes.

9 Q. That's an entry, is it not, that says: "At 1400 hours, connect

10 relay Palma 2"; am I right about that?

11 A. It says here: "At 1400 hours," I don't know what this is, "Palma

12 2," and then I cannot really decipher what it says at the bottom, I can't

13 tell if it says "Vukotic" or "Vukocic", I can't really tell --

14 Q. That's fine. I'm more interested in the timeline --

15 A. Excuse me. "At 1400 hours, the situation regular, Palma 2, at

16 1400 hours, the situation regular, Palma 2." I can't tell what it says at

17 the bottom, "Vukotic," "Vukocic," I can't really don't know what it says.

18 Maybe somebody called in that the situation at Palma 2 was regular.

19 Q. Thank you, sir. And real quickly, right above that line, you see

20 the name Ljubo Bojanovic, do you not?

21 A. Yes.

22 Q. And who is that person, if you know him?

23 A. Ljubo Bojanovic died. He was the duty operations officer. He was

24 a major of the Army of Republika Srpska.

25 Q. Thank you, sir. Now, if you could just go to the very next page

1 in your book. I'm sorry to have you put your glasses on and off, like you

2 are. 9343 -- I'm sorry, that would be English. 5748 in the B/C/S and

3 9343, page 11, English. That's fine.

4 Do you see, sir, about six lines down, seven lines down or so,

5 where it says again: "1500 hours"?

6 A. It could be "15.03" or it could be 1800 hours, you can't really

7 tell, if you're looking at the second-last line, "Semso in preparation." I

8 can't tell.

9 Q. Witness, I want you to look on up that page, if you will --

10 A. It says: "1500 --"

11 Q. That says "1500" there, does it not?

12 A. It says "15, 00". It can be something else. It doesn't

13 say "hours." It could indicate something else.

14 Q. All right. Below you notice there is a "1503", did you

15 not: "Semso is preparing" something?

16 A. I see it. It looks like a "5" and it doesn't look like a "5".

17 Again, I say I am not a handwriting expert.

18 Q. And if you can tell me, again, we see: "13 July 1995" right about

19 three lines above that, do we not?

20 A. Yes.

21 Q. Again, would you agree with me that it's illogical to have that

22 three times now on three pages, the date?

23 JUDGE AGIUS: Yes, Mr. Thayer.

24 MR. THAYER: Mr. President, I would just ask that the witness be

25 permitted to read the entire entry that's related to that particular

1 mentioning of the date.

2 [Trial Chamber confers]

3 JUDGE AGIUS: Witness, take your time. If you need to read

4 through what has been suggested, then please do so, by all means, and

5 we'll wait for you.

6 THE WITNESS: [Interpretation] I've read it.

7 JUDGE AGIUS: Okay, thank you.

8 THE WITNESS: [Interpretation] This doesn't have to be the date of

9 the duty shift. It can be that on the 13th of July, 1995, the UNHCR

10 convoy for Srebrenica returned the same day and crossed into the FRY at

11 2305 hours, so it doesn't have to be the date. It just can mean that he

12 received information that the vehicles of the UNHCR returned -- went and

13 returned on that day.

14 MR. MEEK:

15 Q. Okay. Thank you, sir. Now, if we move forward two pages -- three

16 pages, excuse me, to the number 5751 in your book and page 14 in the

17 English copy, ERN number 9346. First off, you'll agree with me we're

18 still on the 14th of July? If you want to verify that, you can just flip

19 a few pages in your own original book there and you'll see where the 15th

20 of July starts, allegedly. The next page.

21 A. Okay. On the next page, it's the 15th, but it's written in

22 pencil, which doesn't mean that it's precisely the 15th.

23 Q. Well, that's a very good issue. Since it's written in pencil and

24 everything else is in ink on that page, couldn't that -- doesn't that tell

25 you there's something wrong with that, sir?

1 A. Sir, let me tell you again. I'm not an expert in this, and I

2 cannot competently discuss this. I'm really sorry, but that's the way it

3 is.

4 Q. Again, going back two pages to 5751, on the 14th of July still, we

5 see another notation, correct, about halfway down the line, where it

6 says -- first off, scroll back down, please. Keep going to the

7 name "Jokic."

8 Do you see the name "Jokic" there?

9 A. I see.

10 Q. Could you read the entry for us, please?

11 A. It says: "Jokic, delegation from Pilica."

12 Q. Okay. Now, you'll agree with me that again there's is no time on

13 that, is there? No one -- whoever wrote that down didn't put a time that

14 came in?

15 A. No.

16 Q. If you'll follow that page on down, you'll see the numbers "155".

17 Do you see that, sir?

18 A. I do.

19 Q. And that says what, sir?

20 A. "Beara should call."

21 Q. Okay. Call 155?

22 A. It says only, "At 155, Beara should call."

23 Q. At 155. Thank you very much. As we go on down, if you'll go to

24 the very next page, sir, with the numbers "9347", and that's page 15 in

25 the -- I'm sorry, 5752 for you, sir, the next page, 9347 in the English

1 translation, page 15. Scroll down a little bit. The B/C/S, scroll down

2 again. I'm sorry. There.

3 What time on the 14th does that notation say that Beara is coming?

4 A. 9.00.

5 Q. If we go up above that, it says what before "Beara"?

6 A. "Drago should call Mane - Djukici."

7 Q. Thank you. Now, what I'm curious about, if you can tell me, is:

8 Does this seem illogical to you, that on the 14th of July, at 1500 hours

9 or 3.00 p.m., there's the same notation: "Colonel Beara is coming," and

10 also at 9.00 a.m. on the same date?

11 A. Sir, I told you, I'm not qualified to assess -- to evaluate the

12 work of the duty operations officer.

13 Q. Thank you, sir. And just on this, one more -- just flip one more

14 page, sir, to 5753. I think we've already -- I'm going to ask one more

15 time. I think it's been answered, Judge, and I apologise.

16 The date, 15 July 1995, "15.07.95", that's in pencil, is it, sir?

17 A. Yes, pencil.

18 Q. You may not be able to answer this, or maybe you can. Do you know

19 who wrote this in pencil or why did they write it in pencil?

20 A. I don't know. I don't know who entered this or why.

21 Q. Given that the majority if not all of the dates are written in

22 ink, doesn't it surprise you that these are written in pencil?

23 A. It does, but I can't explain it. I don't know why it was done

24 that way.

25 Q. Sir, do you know where the OTP received this notebook, how it came

1 into their possession?

2 A. I don't know how they got hold of it, but the logbooks or diaries

3 were in the command of the Zvornik Brigade.

4 Q. At any time -- you're saying under oath that you have no

5 knowledge, personal, direct or indirect, as to how the OTP came in

6 possession of this notebook?

7 A. I testify under oath that I don't know how they got hold of this

8 book. I was surprised to see it in their hands, and I don't know how they

9 got hold of it.

10 Q. You testified yesterday that your direct superior was

11 Dragan Obrenovic; do you remember that, sir?

12 A. I do.

13 Q. And did you ever have any discussions with Dragan Obrenovic at any

14 time after these events and before he was arrested?

15 A. Well, I had friendly conversations, and we sometimes had coffee

16 together, but no more than that.

17 Q. Did he ever tell you that he kept that logbook in his own

18 possession and then finally turned it over to the Office of the

19 Prosecutor?

20 A. We never discussed that. It was never a topic between us.

21 Q. Since he was your direct supervisor or superior, did you ever see

22 any of his handwriting or writing enough to identify it, such as these

23 dates in pencil, for example?

24 A. Twelve years is too long a time for me to recognise somebody's

25 handwriting, plus I'm not good at remembering handwriting. I memorise

1 telephone numbers because that's in my line of work, but far from that

2 with handwriting.

3 Q. Thank you. So I'm going to try to hurry up with this and ask you

4 some "yes" or "no" questions so we can just finish.

5 JUDGE AGIUS: Mr. Meek, just to enable you to regulate your

6 cross-examination accordingly, since we had a long break that's almost one

7 hour, but I understand that everyone else was in the courtroom before we

8 arrived, I have consulted with the registrar what time we should have our

9 next break, and she suggested, after consultation, 12.15. That's in five

10 minutes' time. So I'm just giving you this information so that you know

11 exactly how to go, how to proceed.

12 MR. MEEK: I appreciate that, Your Honour.

13 JUDGE AGIUS: Thank you.

14 MR. MEEK:

15 Q. Mr. Jovicic, let's try to get through some things very quickly.

16 You do not know where this logbook was or who had control of it

17 from the time -- the last time you saw it until it was turned over to the

18 Office of the Prosecutor; correct?

19 A. When I left, in fact when I was demobbed from the Zvornik Brigade,

20 I didn't know what happened with these diaries from that time on.

21 Q. We've talked about the 14th of July being written in twice. Can we

22 look back to the 11th of July? And I understand, sir, that this is not

23 your entry, and actually it's not even in an English translation, so,

24 Witness, I would just ask you, and, Usher, if you could show 5728 in the

25 B/C/S version, keep scrolling to the bottom -- there you go. Do you have

1 it there in front of you, sir?

2 A. I do.

3 Q. You see the date of "11 July '95", do you not?

4 A. I do.

5 Q. Now, is that in ink or is that in pencil?

6 A. Ballpoint pen.

7 Q. If you turn to the very next page, which in B/C/S is 5729. Now,

8 you see the top right corner of that page, Mr. Jovicic?

9 A. Pencil.

10 Q. Doesn't that also seem illogical to you, sir, since there is no

11 other pencil writings on that page?

12 A. [No interpretation]

13 THE INTERPRETER: The interpreter didn't hear what the witness

14 said.

15 JUDGE AGIUS: Could you repeat your answer, please, Mr. Jovicic?

16 THE WITNESS: [Interpretation] It does seem illogical, because one

17 notebook is written in with ballpoint pen, and in the same book we also

18 have entries in pencil.

19 MR. MEEK: Your Honour, I think this would be a good time to stop,

20 if it pleases the Court.

21 JUDGE AGIUS: Thank you, Mr. Meek, and I thank you, Mr. Jovicic.

22 I see Mr. McCloskey --

23 MR. McCLOSKEY: Just a brief estimate, so we may want to let the

24 witness -- the next witness go.

25 JUDGE AGIUS: Yes. How much more time do you require, Mr. Meek?

1 MR. MEEK: I think about 10 to 15 minutes is about all, Judge, at

2 the most.

3 JUDGE AGIUS: All right. And the Nikolic and Pandurevic teams?

4 Ms. Nikolic.

5 MS. NIKOLIC: [Interpretation] I think I'll be done in half an

6 hour.

7 JUDGE AGIUS: And Mr. Haynes or Mr. Sarapa?

8 MR. SARAPA: Around 20 minutes.

9 JUDGE AGIUS: So we'll have -- as I take it, we should have a

10 little time left if we engage all these minutes that I have had indicated,

11 and then we have got the submission by Mr. Bourgon still. So shall we send

12 the witness away?

13 MR. MEEK: Your Honour, I will try to finish up -- I'll try to

14 finish up in five to ten minutes.

15 JUDGE AGIUS: Yes, but we still have five, ten minutes, 20

16 minutes, 30 minutes, that's an hour.

17 MR. HAYNES: I should add there may be some complications in the

18 tendering process at the end of this witness which may require some

19 discussion.

20 JUDGE AGIUS: I think you can safely send the witness back to the

21 hotel. Thank you. The next witness, obviously, not this one.

22 --- Recess taken at 12.15 p.m.

23 [The witness stands down]

24 --- On resuming at 12.45 p.m.

25 JUDGE AGIUS: So we've been informed, Mr. Ostojic, during the

1 break that you would like to address the Trial Chamber in the absence of

2 the witness.

3 MR. MEEK: Yes, Your Honour.

4 JUDGE AGIUS: Yes. Go ahead, Mr. Meek.

5 MR. MEEK: Your Honour, with all due respect and upon consultation

6 with our client, we believe that the decision of the Trial Chamber, which

7 it's just rendered, is wholly inadequate and unreasonable and does not

8 protect the rights of our client adequately. We have specific instructions

9 that until this matter is resolved, that we will not further cross-examine

10 this witness or any other witness who we believe would be inherently

11 dangerous or prejudice our client, giving, in effect, assistance to

12 counsel in any other manner, and that's all we have to say, Your Honour,

13 and thank you very much.

14 JUDGE AGIUS: What do you mean by "until this matter is resolved"?

15 MR. OSTOJIC: Perhaps if I can add to it, Your Honour.

16 We believe that the annex is important, with all due respect, and

17 we are, as we have in the past, abided by the Court's ruling. However,

18 we've had indication, not verbal from the Prosecutor, that they will not

19 tender that. We feel --

20 JUDGE AGIUS: Tender what?

21 MR. OSTOJIC: Annex A that was, ex parte, given to the Court

22 earlier. And I understood the Court to say you cannot reverse an ex parte

23 filing. The Prosecutor --

24 JUDGE AGIUS: We said that we would not revert an ex parte filing

25 until the Prosecution has had an opportunity to consider your request to

1 have it revealed or disclosed to you. That's what we said.

2 MR. OSTOJIC: And that's exactly what I was trying to summarise

3 for the Court.

4 The Prosecution, though, at that time when the Court made its

5 ruling, was nodding its head in the negative, saying they're not going to

6 produce that. They've not talked to us since the break. We think it's

7 important. We've proceeded based on the Court's ruling to proceed --

8 JUDGE AGIUS: Go ahead.

9 MR. OSTOJIC: -- to proceed with the cross-examination, even

10 though, with all due respect, we feel that the remedy the Court offered is

11 woefully inadequate for protecting our rights and diminishing the

12 prejudice that has been caused by this filing. We made that clear without

13 having to repeat ourselves.

14 During the break, we had an opportunity to consult, and we got

15 specific instructions from our client, and his wish is that we do not

16 proceed until we either file a motion to reconsider with the Court or

17 until the Prosecutor gives us all the documents that are necessary, we

18 feel, pursuant to the Rules of this Tribunal, which we should have gotten

19 as early as 2003 which we have not received or at the latest at the

20 commencement of the trial of this case. So given that, our instructions

21 are specifically not to conduct any further cross-examination of this or

22 any Zvornik Brigade witnesses, specifically, that may be impacted by the

23 evidence of PW-108.

24 JUDGE AGIUS: Okay, that's clear enough. We also had made it

25 clear that we would give the floor back to Mr. Bourgon after the witness

1 would have finished his testimony, and also equally give the opportunity

2 to the Prosecution to respond to the request that that was being made at

3 the time by Mr. Bourgon for disclosure of Annex A. So, yes, Mr. Bourgon.

4 MR. BOURGON: Thank you, Mr. President.

5 We take the same position as my colleague representing the accused

6 Beara in this case with regards to the cross-examination of the witness

7 who is presently before the Trial Chamber.

8 Mr. President, we believe that the prejudice caused by the

9 disclosure by the Prosecution yesterday of the material related to

10 Witness PW-108 has potentially changed the complete outlook on this case

11 from the Defence perspective.

12 Now, what is important is that our position today is that the

13 Defence strategy might be changed, but I insist on the word "might be

14 changed." Strikingly, we had no information whatsoever concerning

15 Witness PW-108 before today. We did not know what he would testify about,

16 what was the object of his testimony, or against which of the accused in

17 this courtroom his testimony would be directed. In fact, based on the

18 contents of the Prosecution motion, we believed that his testimony was

19 related to MUP matters and that, as far as our client is concerned, it

20 would not have anything to do with Drago Nikolic.

21 The situation is that, contrary to the position that we, the

22 Defence, find ourselves in, the Trial Chamber knew something about the

23 testimony of PW-108, and of course we don't know what exactly the Chamber

24 knew, but that is why it has become so important today, considering the

25 potential implication of this new information whereby, again, I insist, it

1 may be -- it may change the outlook on this case, because we have not yet

2 had a proper opportunity to consult with our client, and this is a serious

3 issue that we need to sit down and look at exactly what our client knows

4 about this new witness and to really sit down and examine our strategy and

5 what is it that we are going to do for the Defence case.

6 One of the things that we, of course, are looking at, my colleague

7 mentioned the idea of asking for a motion for reconsideration of the Trial

8 Chamber's decision to admit this witness in the first place, because if we

9 go back, this was a witness that was not on the Prosecution's list of

10 witnesses. The Prosecution requested to have a new witness added to its

11 list, and the Trial Chamber said, "Well, based on the information that we

12 have, we believe that the testimony is relevant and that you won't get any

13 information." So we would ask that that -- a reconsideration of that

14 position. It is one of the possibilities that we envisage today, but it

15 is too early to tell.

16 What we do know, however, is that this is why the information

17 which was in the possession of the Trial Chamber is so important at this

18 stage, because we want to know, and as I speak today, the reason we don't

19 want to continue our cross-examination of this witness is that we would

20 like to either have the Prosecution confirm that they will give us this

21 information voluntarily, either Annex A or Annex B, or to get the Trial

22 Chamber simply to lift the ex parte character of those annexes, and we

23 believe that it is fully within the powers of the Trial Chamber to do so.

24 Once we've had this information and we have the necessary time to

25 meet with our client and to look at the impact of this new witness, which

1 again I must insist we knew nothing about, then tomorrow morning we can

2 address the Trial Chamber and say, "This is what we believe is the proper

3 remedy to address this prejudice."

4 We really believe, Mr. President, that there is a serious

5 violation of the rights of the accused, which information that is

6 damaging --

7 JUDGE AGIUS: You've stated that repeatedly and we have

8 answered -- given you our position on that, so --

9 MR. BOURGON: I stop here, Mr. President, only to say that what we

10 would like to know is either -- we respectfully request an order from the

11 Trial Chamber lifting the ex parte character of those annexes or a

12 voluntary disclosure from the Prosecution so that tomorrow morning we can

13 tell you what course of action we would like to take. But for this

14 moment, we are not in a position to continue with our cross-examination of

15 this client [sic], and again I say it may be that our complete outlook on

16 this case may have changed, and we need to take the time to assess this,

17 and it goes beyond calling back five or six witnesses, and that, we will

18 expand on tomorrow.

19 Thank you, Mr. President.

20 JUDGE AGIUS: Thank you.

21 JUDGE KWON: Just one clarification, Mr. Bourgon.

22 My understanding is that Annex B is disclosed to the Defence in

23 its entirety.

24 JUDGE AGIUS: That's the statement.

25 JUDGE KWON: Am I not correct?

1 MR. BOURGON: What I'm looking at, Judge, is I'm looking at the

2 information that was given to the Trial Chamber which we did not get.

3 JUDGE AGIUS: Which information?

4 MR. BOURGON: With the filing. We don't know that information.

5 JUDGE AGIUS: The filing, yesterday's filing?

6 MR. BOURGON: No, not yesterday's filing. When the Prosecution

7 filed to have this witness added to its list.

8 JUDGE AGIUS: You were surprised even when you see it, that we're

9 talking of five lines, basically?

10 MR. BOURGON: We don't know, Mr. President. For sure there is a

11 violation, but we need to know --

12 JUDGE AGIUS: Please, don't repeat, that because we have already

13 put our position clear.

14 MR. BOURGON: I can respectfully state our position,

15 Mr. President. Thank you.

16 JUDGE AGIUS: All right. And you have every right to ask for our

17 decision to be reconsidered, but once we have made a pronouncement, for

18 the time being you need to respect it.

19 Mr. Haynes, will you be proceeding with the cross-examination?

20 MR. HAYNES: No, Mr. Sarapa will not. We've had discussions with

21 the other parties who've already addressed you, and we support the

22 position.

23 JUDGE AGIUS: So I need to consult with my --

24 JUDGE KWON: I would like to hear from the Prosecution.

25 JUDGE AGIUS: Yes, yes. Mr. Thayer? Yes, Mr. Ostojic.

1 MR. OSTOJIC: Just so it's clear, Your Honour, we do want the

2 application that was made to the Court last August, that the Court based

3 its decision on February 9th, but also Annex A is not attached to our

4 motion that was filed confidentially yesterday, so it would be the

5 material that's Annex A that we referred to that we did not receive

6 yesterday, and we presume because it was partially ex parte, the Court

7 did, and then the filings that were made ex parte in August, I believe, of

8 2006.

9 JUDGE AGIUS: I don't know, but I shouldn't speak much on this

10 Annex A relates only to security -- personal security issues. A security

11 assessment, basically, and nothing else. I mean, it's up to the

12 Prosecution to now comment on that, Mr. Thayer.

13 MR. THAYER: Yes, Mr. President.

14 Mr. President, you're absolutely correct, Annex A specifically

15 refers to the personal, subjective security concerns of the witness. I

16 will have discussions with Mr. McCloskey about whether there's any way any

17 portion of that can be disclosed, but the -- my friends have the

18 statement, they have the 65 ter summary which was attached as Annex B. The

19 Court has ordered us to furnish the materials related to the other

20 witness, which we will do. I believe the Court's ruling has encompassed

21 all of my friend's concerns, and that's as much as I will say at this

22 point.

23 JUDGE AGIUS: As I understand it, the Annex A that they want to

24 have disclosed is the Annex A that was attached to the 2006 Prosecution

25 motion for delayed disclosure.

1 MR. THAYER: Again, Your Honour, I believe that that also is --

2 concerns the subjective security concerns of the witness and is not, as I

3 recall, a statement or anything like that, in which case the Defence will

4 have it.

5 [Trial Chamber confers]

6 JUDGE KWON: Mr. Thayer, my understanding is that the ex parte

7 annex that was attached to your December motion was Annex B, which is now

8 disclosed now as a cover page. Am I not correct?

9 JUDGE AGIUS: Let me clarify.

10 MR. THAYER: We're verifying that, Your Honours.

11 JUDGE AGIUS: I think this will clarify the matters. Now, we go

12 back in time to the December motion, 12th December motion by the

13 Prosecution for an order of protection, and protection -- so, it was

14 disclosed -- deferred disclosure of the identities of the witnesses. That

15 motion was accompanied by two annexes. One is Annex A, and that was a

16 confidential annex, so I take it that being a confidential annex, it was

17 not available for public consumption but it was made available to the

18 Defence teams. Correct me if I am wrong.

19 What was strictly ex parte was Annex B, Annex B, which -- one

20 moment, because I need to upload --

21 JUDGE KWON: Shall we go into private session for safety?

22 JUDGE AGIUS: Okay. I take the advice of Judge Kwon. Let's go

23 into private session, please.

24 [Private session]

25 (redacted)

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6 [Open session]

7 JUDGE AGIUS: And incidentally, between what was Annex A in the

8 December motion -- let's -- yes, we are in open session. What was Annex A

9 in the December motion and what is now Annex A in yesterday's motion, that

10 is, the declaration regarding security concerns, the two documents are

11 identical except for the last paragraph before the conclusion. There is

12 an additional paragraph, and I don't know if Mr. Thayer is prepared -- or

13 the Prosecution is prepared to disclose the contents of that last

14 paragraph to you or not. We are not going to interfere with that. But

15 it's just one paragraph that is different. The rest is completely

16 identical, word for word.

17 MR. THAYER: That's correct, Mr. President. I managed to do a

18 line-by-line comparison, and we have no problem disclosing that

19 confidentially to our friends in its entirety.

20 JUDGE AGIUS: Yes, exactly, I mean, because if the rest has been

21 disclosed already and there is only this one paragraph, I don't see why

22 there should -- that should constitute a problem, and that last paragraph

23 reflects what you have been saying throughout and what has been contested

24 throughout by your learned counsel on the -- colleagues on the Defence.

25 Okay. So that's going to be disclosed.

1 Yes, Mr. Ostojic, and then we need to discuss something further

2 amongst ourselves.

3 MR. OSTOJIC: Your Honour, based on your invitation to clarify the

4 point, I'm seeking --

5 JUDGE KWON: Microphone.

6 MR. OSTOJIC: I'm seeking merely clarification at the Court's

7 invitation, and thank you for that.

8 What we have as Annex B, what the Court refers to, is not only a

9 brief summary but we also have the interview, so we don't know if in

10 December, and I would just like to clarify it, the Court did not get the

11 actual interview that is attached currently as Annex B.

12 JUDGE AGIUS: No, I think I made it clear earlier during our

13 ruling, we never had in our possession, formally or informally, that is,

14 when we had the December motion or, for that matter, the August motion, we

15 never had a copy of the witness's statement to the OTP attached to any of

16 those two motions. We never had it available informally, either, if

17 you -- if that interests you as well. We just had at our disposal the

18 security certification, which you had at the time, and the summary that

19 became available to you yesterday as part -- as an addendum to the witness

20 statement, but that's what we had, only that executive sort of summary,

21 nothing else.

22 MR. OSTOJIC: Thank you. Now it's clear, Your Honour. Thank you

23 very much.

24 JUDGE AGIUS: But I thought we had made it clear before. I mean,

25 we never had it, and once we got it yesterday, once we got it this

1 morning, you got it at 10.00 and we became aware of it this morning, I can

2 confirm that none of us took the trouble to read it in the first place.

3 Yes. Now I need to consult again my colleagues on something else.

4 [Trial Chamber confers]

5 JUDGE AGIUS: Now, the ultimate conclusion that we come to.

6 There are two aspects to this witness's testimony or the

7 continuation thereof. There are aspects that might arise in the wake of

8 Witness PW-108's statement to the OTP that was made available to you

9 yesterday and which some of you maintain you've not had time to consult

10 your clients upon. And there is also the incognito -- the unknown content

11 of the statements of the deceased persons. That, according to our ruling,

12 would entitle you to ask for this witness to come back and other witnesses

13 to come back to be further cross-examined limitedly to the facts or issues

14 emerging from PW-108's statement and the statements of the deceased man.

15 Do you read me? Okay.

16 As far as every other thing is concerned, if you do not proceed

17 with the cross-examination of this witness now, you will not be allowed to

18 cross-examine him further on other matters that are outside the PW-108 and

19 the deceased person's statement. We're making that clear. So, in other

20 words, if you know that the situation has been more or less cleared, we

21 see no reason why, if you have further questions not dealing with the

22 PW-108 and the other matter, why you should not continue today.

23 Yes, Mr. Bourgon.

24 MR. BOURGON: Thank you, Mr. President.

25 We fully understand what the Court is saying now, but there is a

1 further difficulty, and now we just understand what the difficult is now,

2 when I understand what is exactly Annex B. I'm talking about the summary.

3 The Trial Chamber has expressed the fact that you have not read

4 the interview, so you don't know what is in the interview; that you may

5 have looked at the summary, because it's on the basis of the summary that

6 the Trial Chamber decided to add the witness. Looking at this summary --

7 JUDGE AGIUS: That limitedly to the aspect of relevance,

8 obviously.

9 MR. BOURGON: Yes, to decide that the witness was relevant.

10 Now, what I see today, looking at this annex, is that the summary

11 does not reveal exactly the critical part of this witness testimony, and

12 had the Trial Chamber been informed through a summary of what this witness

13 is likely to say, we believe the situation would have been totally

14 different and maybe you --

15 JUDGE KWON: Mr. Bourgon, can I ask whether your question is

16 related to the continuation of this examination of this witness or --

17 MR. BOURGON: Indeed.

18 JUDGE KWON: -- Other than whether trying to revisit the 65 ter or

19 the latest disclosure?

20 MR. BOURGON: This witness, Judge, this witness because of the

21 information that is in the interview, because of this information, this

22 may change our complete look at the case, including the questions we have

23 prepared for this witness. That's -- this is our -- this is the impact of

24 what is in that interview, and the Prosecution knows what is in this

25 interview. You have not maybe seen what is in the interview, but that is

1 why, for us, it changes the whole case. Everything we've done so far

2 might change because of this witness, and that's why it is so important.

3 For us, it is likely a mistrial issue.

4 JUDGE AGIUS: Yes, thank you, Mr. Bourgon. I think we've made our

5 position clear. You are going to be asked again whether you wish to

6 continue with the cross-examination of this witness today, with all your

7 rights reserved as to further cross-examination of this witness in the

8 wake of PW-108's statement and any statement made by the deceased would-be

9 witness, the other one. I won't mention his name. If you have -- if you

10 do not wish to cross-examine further today, then we have made our position

11 clear. You will be able to cross-examine the witness further, but only

12 limitedly to what emerges from the other two or multiple documents that I

13 have mentioned earlier.

14 Is that clear? Okay.

15 So Mr. Meek.

16 MR. MEEK: Mr. President, Your Honours, with all due respect, we

17 still believe that we're severely prejudiced for several reasons. One is

18 we do not have, and I guess we're going to get it, the statements from the

19 witness and the statements from the -- well, both the witness and the

20 declarant who's now deceased, plus the fact, Judge, that if I understand

21 your ruling, we are free to cross-examine this witness on matters that

22 would stem from those documents and PW-108's statement and the declarant

23 or the deceased individual, and we believe that we can -- we would be able

24 to do that once we had that information in our hands. That's all I'm

25 saying, Judge.

1 JUDGE AGIUS: Well, obviously. We are not even thinking of asking

2 you to cross-examine this witness now on the contents of the PW-108

3 statement or the statements of the deceased person. I mean, especially

4 since you don't even have the latter. What we are asking you is to

5 continue cross-examining this witness on the rest, and without prejudice,

6 of course, to your right to further cross-examine the witness on the other

7 material.

8 So --

9 MR. MEEK: Since -- this is hard for me to say, but since you have

10 not seen the rest of the confidential Annex B, that being the statement

11 and/or interview of this proposal I've witnessed, then you won't

12 understand that I'm not in a position to go further with this witness

13 today under your prior ruling. That's what I'm saying.

14 JUDGE AGIUS: Okay. Mr. Bourgon, I think you've made your

15 position clear. Do you stick to it?

16 MR. BOURGON: Mr. President, we have technical questions we could

17 ask to this witness today. We don't see the point in proceeding with

18 those technical questions, to separate that from our further, because for

19 sure --

20 JUDGE AGIUS: Let's proceed, Mr. Bourgon, because we made our

21 position very clear. What you could have asked today and you don't, you

22 will not be allowed to ask in the future. This is what we are making

23 clear. I mean, you will be allowed to cross-examine the witness on other

24 matters that arise in the wake of the other documents that we haven't seen

25 and we don't want to see, but that's about it.

1 [Trial Chamber confers]

2 JUDGE AGIUS: Yes, yes, and I take it when we said "as soon as

3 possible," that you will be disclosing the declarant's -- the deceased's

4 statements to the Defence without any undue delay, possibly today.

5 MR. THAYER: Mr. President, I've already advised my friends as to

6 the case in which the deceased witness testified, the dates of that

7 testimony, and the pseudonym as well so that they can easily identify who

8 that individual was who testified with protective measures but in open

9 session otherwise in that prior case, so they have that information and we

10 are gathering the rest of it for disclosure.

11 JUDGE AGIUS: We are only interested in a timely disclosure.

12 Mr. Haynes or Mr. Sarapa, what's your position on this so that --

13 MR. HAYNES: I would appreciate a couple of minutes with my client

14 before I --

15 JUDGE AGIUS: Okay. I didn't mean to cut you off, Mr. Bourgon.

16 MR. BOURGON: We also need to consult with our client,

17 Mr. President.

18 JUDGE AGIUS: So please consult with your clients now, and we will

19 proceed with the cross-examination of the witness, if you have any further

20 questions for him, and we will reserve further cross-examination on the

21 other matters as and if it becomes necessary upon a specific request,

22 obviously.

23 Yes, Mr. Ostojic. You want to consult your clients? Okay.

24 I think we'll leave the courtroom for five minutes.

25 --- Recess taken at 1.25 p.m.

1 --- On resuming at 1.31 p.m.

2 JUDGE AGIUS: So can we hear the outcome -- know the outcome of

3 the consultations? Mr. Meek.

4 MR. MEEK: Mr. President, Your Honours, we stand on our prior

5 decision, because we believe that we fall within the order and ruling of

6 this Court if this witness does come back for further cross-examination.

7 And I have to tell you, again, this confidential executive annex, if it

8 ever comes around that this witness ever testifies, you're going to see

9 this as wholly inadequate and ludicrous.

10 But, no, we stand on our principle, and we're not going to further

11 cross-examine today.

12 JUDGE AGIUS: Okay, thank you.

13 Mr. Bourgon?

14 MR. BOURGON: We will not cross-examine the witness,

15 Mr. President, but there will definitely be a need to call him back once

16 we get that material.

17 Thank you, Mr. President.

18 JUDGE AGIUS: That we have made our position clear on as well

19 already.

20 Mr. Sarapa or Mr. Haynes, sorry?

21 MR. HAYNES: Yes. The evidence that this witness has already

22 given impacts rather differently on the three of us who've joined in this

23 submission, and indeed I pause to note that one of the accused has already

24 substantially cross-examined him in any event, and we shall proceed to ask

25 him some questions.

1 JUDGE AGIUS: Okay. So let's bring the witness in, please. Do

2 you think you can finish in 12 minutes? If not, he will be available

3 tomorrow, of course.

4 MR. SARAPA: I think I will be able to do that in 12 minutes.

5 JUDGE AGIUS: Okay. Thank you, Mr. Sarapa.

6 [The witness entered court]

7 JUDGE AGIUS: So my big apologies to you again, sir, but again

8 it's a day when we have many problems, and we had to address them.

9 There is only one lawyer that -- one Defence counsel that wishes

10 to cross-examine you further today, and then if we manage to finish today,

11 you're free to go back home. But there is a likelihood that you will be

12 recalled at some later point in time to be cross-examined on some other

13 matters.

14 So Mr. Sarapa.

15 Cross-examination by Mr. Sarapa: [Interpretation]

16 Q. Good day, Mr. Jovicic. You told us the duty operations officers

17 were exclusively senior officers, because the function was a very serious

18 one and the job was a very serious one. Would it be correct to say that

19 you, who did not do the military service, who were not a professional

20 officer, had no military experience, never served as a duty operations

21 officer?

22 A. I never did. I was only -- I was always the assistant.

23 Q. So you were not on the list of persons eligible to be duty

24 operations officer?

25 A. I was not.

1 Q. In one part of your testimony, you said that the duty operations

2 officer went to report to the commander every morning, it was customary.

3 However, in extraordinary circumstances such as the one in July 1995, when

4 fighting was going on and the commander was absent, did the reporting go

5 on every morning?

6 A. I don't know about that.

7 JUDGE AGIUS: Please pause between question and answer to help the

8 interpreters catch up and translate to us in a complete manner, please.

9 Thank you.

10 MR. SARAPA: [Interpretation]

11 Q. In the night of the 16th of July, when you were the assistant duty

12 operations officer, did you see Vinko Pandurevic at the brigade command?

13 A. I did not.

14 Q. If he had come to the brigade command, do you believe he would

15 stop by the duty operations officer to get himself acquainted with the

16 situation?

17 A. Commander Vinko Pandurevic had a very resonant voice. He would

18 always be heard from downstairs, in the whole building. He would always

19 go into the duty operations officer's room to see what the situation was

20 like, and my office was right opposite. The ops duty officers and I would

21 have heard it, so I don't think he came that night.

22 Q. You didn't see him on the night, you didn't hear him on the night

23 of the 16th?

24 A. I did not.

25 Q. Did you see him on the morning of the 16th or the morning of the

1 17th of July?

2 A. I did not.

3 MR. SARAPA: [Interpretation] Could we see document P377? Just a

4 minute. Sorry, 7D180. There is an English translation. It's a working

5 notebook that the witness has reviewed several times today.

6 Q. Mr. Jovicic, could you please look at the entry for 5.10?

7 A. I can see it.

8 Q. It says:

9 "Milenko Jovanovic should send supplies and food to the forward

10 command post, including refreshments. M. Jovanovic has been informed."

11 That was the night of the 16th when you were the assistant duty

12 operations officer?

13 A. Yes.

14 Q. In fact, this is the small hours --

15 THE INTERPRETER: Closer to the microphone, please.

16 Q. Could you tell me, who is Milenko Jovanovic?

17 A. He was the commander of the headquarters.

18 Q. Do you know who has the privilege in the Zvornik Brigade to

19 request food and drinks to be sent to them at the forward command post?

20 A. You mean from the brigade command?

21 MR. SARAPA: [Interpretation] Yes. The witness's answer has not

22 been recorded, that it was the brigade command.

23 JUDGE AGIUS: Yes. Can I just repeat the question to you,

24 Witness, and please give us your answer again so that it goes into the

25 record. Could you tell me who is Milenko Jovanovic or who was

1 Milenko Jovanovic?

2 THE WITNESS: [Interpretation] Milenko Jovanovic was the commander

3 of the headquarters command.

4 JUDGE AGIUS: Of the headquarters command, that's what I have on

5 the transcript.

6 MR. SARAPA: [Interpretation] That's correct. But after that, I

7 asked the witness to tell us if he knew who, in the brigade, had the

8 privilege of food and drinks being delivered to them at the forward

9 command post. So in order not to repeat for the witness, let him repeat.

10 THE WITNESS: [Interpretation] Mainly the brigade commander.

11 MR. SARAPA: [Interpretation]

12 Q. Following this answer and the entry for 5.10, namely, that

13 Milenko Jovanovic was informed that he was to send food and drinks to the

14 forward command post, could we draw the conclusion that Vinko Pandurevic

15 was at the forward command post at Delici that night?

16 A. We can.

17 Q. Now, on the same page of this notebook, look at the entry for

18 5.40. It reads:

19 "Galic to call the chief at the forward command post."

20 The following entry:

21 "1st Infantry Battalion asks whether the construction machines

22 have been secured. Situation is normal. Trbic should call."

23 You have already told us what kind of construction machines are

24 meant, but I'm interested in this: Did you know why this construction

25 machinery was needed at the time you were writing this?

1 A. I did not.

2 Q. Can you tell us, what was the first time you saw Vinko Pandurevic

3 after he departed with Tactical Group 1 for Srebrenica and Zepa?

4 A. Only when the operation in Baljkovica was finished.

5 Q. You are an electrical engineer by training; you were chief of

6 communications at the Zvornik Brigade. I don't think it will be hard for

7 you to answer the following question: While Vinko Pandurevic was at

8 Srebrenica and Zepa, did he have at his disposal means of communication

9 enabling him to have direct contact with the Zvornik Brigade?

10 A. The means of communication available to that tactical group then

11 did not enable direct communication. It could only be established from

12 the forward command post of the Drina Corps.

13 Q. Thank you. Please tell us, what were the possibilities for

14 Vinko Pandurevic to communicate with the Drina Corps when he was at the

15 forward command post at Delici?

16 A. Well, he could communicate with them through the switchboard which

17 was at the Standard.

18 Q. Was that a secure line, secure from listening devices?

19 A. No, it was not secure because it used the radio relay.

20 Q. Now, let me ask you a question that is not technical. You knew

21 Vinko Pandurevic. You worked together with him. What can you tell us

22 about him, as a human being and as a commander?

23 A. He was an exceptionally strict commander. He knew the job he was

24 doing very, very well, and he was an extremely good person.

25 Q. One more question regarding his personality: What was the

1 prevailing opinion of him among the troops and the citizens of Zvornik?

2 A. The soldiers respected him. The citizens of Zvornik respected

3 him. And after Baljkovica, a story circulated in Zvornik that

4 Vinko Pandurevic allowed the corridor to be opened for the passage of

5 civilians and troops who were crossing the hills going from Srebrenica

6 without the approval of the superior command.

7 Q. My last question regarding you personally: You lived in Gorazde.

8 Can you tell us why you left that town?

9 A. I left because I had to. It was encircled, and the only way out,

10 from the left side of the Drina River, where I lived, was for the entire

11 population on the left bank of the Drina to leave, to move out.

12 JUDGE AGIUS: Are we finished?

13 MR. SARAPA: [Interpretation] I thank the witness. I have no

14 further questions for him.

15 JUDGE AGIUS: I thank you, Mr. Sarapa.

16 Witness, that's the end of your testimony. I take it there is no

17 re-examination.

18 MR. THAYER: None, Mr. President.

19 JUDGE AGIUS: And just a confirmation that there are no questions

20 from the Bench.

21 Witness, you are free to go. As I said, you will probably return.

22 On behalf of the Trial Chamber, I thank you for having come over, and I

23 wish you a safe journey back home.

24 Let's adjourn.

25 [The witness withdrew]

1 JUDGE AGIUS: Mr. Bourgon, please, very, very briefly.

2 MR. BOURGON: It's an issue I can raise tomorrow. It's a

3 translation issue with respect to the last exhibit that was shown to the

4 witness, the difference between to call someone and to report to someone.

5 I can raise it tomorrow, but I want to --

6 JUDGE AGIUS: You can raise it tomorrow also in anticipation of

7 the problems that Mr. Haynes indicated regarding the documents to be

8 tendered. So we stand adjourned until tomorrow morning at 9.00.

9 --- Whereupon the hearing adjourned at 1.48 p.m.,

10 to be reconvened on Wednesday, the 16th day of May,

11 2007, at 9.00 a.m.

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