Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18136

 1                          Friday, 23 November 2007

 2                          [Open session]

 3                          [The accused entered court]

 4                           --- Upon commencing at 9.03 a.m.

 5            JUDGE AGIUS:  Good morning, Madam Registrar.  Could you call the

 6    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:  Thank you, Madam.  Good morning, everybody.  For the

10    record all the accused are present.  From the Defence teams, I notice the

11    absence of Mr. Ostojic, Ms. Nikolic, Mr. Lazarevic and Mr. Haynes.

12            From the Prosecution, I notice the presence of Mr. McCloskey and

13    Mr. Nicholls.

14            Now, what's the good or bad news?  Is the witness recovered?

15            MR. NICHOLLS:  Good morning, Your Honours.  Good morning to my

16    friends.  I saw the witness last night from around 6.00 to 8.00 p.m. and

17    he seemed to be doing a lot better to me.  And he said that at that time

18    that he thought he probably could be here today.  He is not actually here

19    today.  I've checked.  He's nearby at his hotel but they are --

20    investigators checking with VWS now.  He's on stand-by and I think could

21    bring him unless he doesn't feel well again.  He did have a fever

22    yesterday I believe.  I didn't take his temperature.  While I was talking

23    to him he didn't feel perfect but he was okay.

24            JUDGE AGIUS:  If he's running a temperature, why the hell take him

25    out in this weather?

Page 18137

 1            MR. NICHOLLS:  Well, that may be.  And that's what we are checking

 2    on this morning and I think VWS will make that decision, probably.  There

 3    are some other issues, I can -- that relate to that witness and when he

 4    can start that should be in private session.

 5            JUDGE AGIUS:  All right.  So how long do we have to wait to know

 6    if he is available or not?

 7            MR. NICHOLLS:  He's on his way, Your Honour.  I've just been told

 8    he's on his way.

 9            JUDGE AGIUS:  Yes, Mr. Bourgon?

10            MR. BOURGON:  Good morning, Mr. President.

11            JUDGE AGIUS:  Good morning.

12            MR. BOURGON:  It was in contact with my colleague from the

13    Prosecution last night and around 8, 8.30 we were told that the witness

14    would be available so that we could go and see him and we were also given

15    by internet a copy of the interview, the audio tape, by internet.  It's an

16    hour and a half tape, about.  Audio tape of the interview they conducted

17    with the witness.  I went to see the witness last night around 9.30 and

18    maybe we can go into private session, Mr. President.

19            JUDGE AGIUS:  By all means.  Let's go into private session.

20                          [Private session]

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

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Page 18143

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11  (redacted)

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13  (redacted)

14                          [Open session]

15            MR. NICHOLLS:  We e-mailed the interview to Mr. Bourgon in the raw

16    format that this digital recorder picks it up on which, as far as we could

17    tell, could not be played without special software, could not be played

18    with windows media player, and probably could not be played by most

19    Defence counsel.  Mr. Bourgon said he thought that his assistant might be

20    able to convert it or do something with it, but it's not a very usable

21    format.  That's why we spent a couple hours converting it to a format that

22    can be played on any media player on any computer.  That's a format I

23    wanted to give it to the Defence.  Not a format where they would say we

24    got this thing last night and we can't listen to it.  Once it was

25    converted, it could not be e-mailed, it was too big.  We attempted to

Page 18144

 1    email it but in that format we couldn't.  That's why we then burned it

 2    onto CDs and put it in a locker, so I don't want my friend to think I was

 3    giving preferential treatment to one Defence counsel.  The idea was to get

 4    it to everybody as soon as possible in the most usable format.

 5            JUDGE AGIUS:  And that is time consuming.  All right.  I am

 6    informed that the witness is still on his way.  And it will take

 7    approximately another 10 to 15 minutes for him to get here.  Yes,

 8    Mr. Nicholls?

 9            MR. NICHOLLS:  Your Honour, I would request that I be allowed to

10    speak with the witness.  I'd like about 15 minutes with him when he gets

11    here to explain what's going on and what has been talked about today.  I

12    told him last night that hopefully I would get a chance to talk to him and

13    explain the courtroom procedures where people sit and that kind of thing,

14    which I didn't have a chance to go over with him last night.

15            JUDGE AGIUS:  All right.  I suppose there should be no problems

16    there.  My hunch is that this witness is coming here and he will be tired

17    before he starts, but anyway --

18                          [Trial Chamber confers]

19            JUDGE AGIUS:  Any updates?  Is he halfway now?  Yes, Mr. Nicholls?

20            MR. NICHOLLS:  Your Honour could we go into private session for

21    one minute?

22            JUDGE AGIUS:  Yes.

23                          [Private session]

24  (redacted)

25  (redacted)

Page 18145











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Page 18149

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 6                          [Open session]

 7            JUDGE AGIUS:  So as soon as you have a chance to speak with this

 8    witness, who is still on his way, you make an assessments of whether he's

 9    fit or not to testify today.  We'll hear what you have to say.  We'll hear

10    what he and the Victims and Witnesses Section have to say, and then we

11    will move on from there.  And Mr. Bourgon does no need to worry about what

12    has already been agreed upon between him and the Prosecution as regards

13    interviewing this witness.

14                          [Trial Chamber and registrar confer]

15            JUDGE AGIUS:  So I reckon -- has he arrived or not?

16                          [Trial Chamber and registrar confer]

17            JUDGE AGIUS:  You don't think so.  Let's earmark roughly 10.00 for

18    when we meet again.  Thank you.

19                           --- Break taken at 9.33 a.m.

20                           --- On resuming at 10.04 a.m.

21            JUDGE AGIUS:  Anyone wish -- yes, Mr. Nicholls?

22            MR. NICHOLLS:  Your Honours --

23            JUDGE AGIUS:  One moment, because we are in open session at the

24    moment.  Yes.  Shall -- the moment you need to go into private or closed

25    session, Mr. Nicholls, please alert us.

Page 18150

 1            MR. NICHOLLS:  Your Honours, I just spoke with the witness.  He

 2    told me, I think he may have told the Chamber, that he's ready.  He told

 3    me that he is very tired, that he did not sleep at all well last night,

 4    and that he doesn't feel as though he can go forward today.  And I told

 5    him that the Trial Chamber would likely call him in and talk to him, and

 6    so that is -- that is what he has told me.  He doesn't appear to be

 7    actually have a fever at the moment, but he said that he doesn't feel well

 8    and he doesn't -- he would prefer to testify Monday is what he has told

 9    me.  Could we go into private session for one moment?

10            JUDGE AGIUS:  Yes, certainly.  Let's go into private session.

11                          [Private session]

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18  (redacted)

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Page 18153

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14                          [Open session]

15            JUDGE AGIUS:  So we are decided not to proceed with the testimony

16    of the witness today because he is not feeling well, and he himself has

17    asked for his testimony to be postponed until Monday and we have agreed to

18    that.  The other thing is this:  Mr. McCloskey, yesterday you mentioned if

19    it was not you, it was Mr. Thayer, I can't remember which one of you, that

20    possibly you could bring, fill in the gap this morning, if this witness

21    were not to testify, by bringing over an investigator to testify on a

22    booklet containing photos of persons that were in Potocari and that there

23    were on going discussions at the time between you and the various Defence

24    counsel on that.  What's going to happen?

25            MR. McCLOSKEY:  Mr. President, that was something I had looked

Page 18154

 1    into at the last minute when we saw this gap possibly developing.  We have

 2    identified some mistakes in that exhibit that need to be fixed before we

 3    call that person.

 4            JUDGE AGIUS:  All right.

 5            MR. McCLOSKEY:  Though there is another exhibit, another book,

 6    that will take -- that I could talk about briefly.  It's an exhibit we

 7    will be offering into evidence in one form or another, and it will take

 8    court time.  And we can take up -- it shouldn't take much time today, but

 9    I think we could at least take up today, if you would like to, as opposed

10    to -- and save some time in the future on another exhibit for your

11    consideration.

12            JUDGE AGIUS:  And that would be what?

13            MR. McCLOSKEY:  The -- it's the duty officer notebook which you've

14    heard a lot of.  It's now in e-court marked for identification various

15    parts of the duty officer notebook and the translations.  What we have

16    done, in part, on the request of Mr. Bourgon, but on our own, is we have

17    created an exhibit that has from the 11th of July to the 23rd of July, and

18    it has the B/C/S on the left side and the English translation on the right

19    side, and we have tried to align the English translation as much as we

20    possibly could with the B/C/S original and it's a pretty high quality

21    colour photocopy.  And it's just an exhibit that makes this very important

22    exhibit much easier to deal with.  And we would like to -- at some point

23     -- offer it into evidence and the sooner the better so that you -- so

24    that you have it.

25            Now, it -- this exhibit can come in two forms.  One form is a bit

Page 18155

 1    more controversial than the other form.  The form I have in front of me

 2    right now is something that we've provided the Defence for a long time,

 3    and it has in red marked the dates that we feel, based on the evidence,

 4    the day is talking about, sometimes because it's market in the book or

 5    other times someone has testified or that it can be interpreted from the

 6    information in the book.  We've also marked with red brackets who the

 7    Prosecution believes wrote the notes.  And that is based on the evidence

 8    of Kate Barr, the handwriting expert.  It's also based on people that

 9    admitted or acknowledged that the notes were theirs.  Some have testified,

10    some have not and so an investigator would go through that and if

11    necessary -- and tell you where we have relied on that.

12            This is just done so that when you're reviewing this, you don't

13    have to take the separate pieces of Prosecution evidence and try to figure

14    out who -- who we think wrote these things, and so we put it all in one

15    book.  And it really makes this thing make more sense than the current way

16    it's in e-court now, and I've discussed this a bit with some counsel and

17    there are I think some objections to some of this.

18            JUDGE AGIUS:  May I ask you in doing so, I take it that you would

19    be tendering that not as evidence but as a submission?

20            MR. McCLOSKEY:  It could go either way.  If you think it's more as

21    a submission, that's fine too, but whatever --

22            JUDGE AGIUS:  Because I'm saying this because if there is a

23    controversy on the date, for example, or a controversy on the -- who was

24    the -- on the paternity of an entry in particular, that could be

25    interpreted at least from one approach as if it is testimony on the part

Page 18156

 1    of the Prosecution.  If they are contested, if those parts are contested.

 2            MR. McCLOSKEY:  I'm told that some are.  So in that sense

 3    submission is fine, we just thought it's the kind of thing that goes into

 4    the jury room usually.

 5            JUDGE AGIUS:  Okay.  As a submission, I would look at it from a

 6    different aspect.  As a submission.

 7            With this -- have you finished, Mr. McCloskey, or not, yet, I'm

 8    sorry, because I wouldn't like to cut you.

 9            MR. McCLOSKEY:  Also Mr. Haynes is not here.

10            JUDGE AGIUS:  I noted that.

11            MR. McCLOSKEY:  The complete translation -- there is a 2 volume

12    book, one is basically July August and the other which is fully translated

13    and then there is September-October.  That's still being translated.  But

14    the full translation of the both books is coming and will be also a

15    separate volume as per what we've talked about before.

16            But this is 11 July through 23 July, and most of the witnesses in

17    evidence that have talked about it.  So it's as a submission is more

18    appropriate, certainly not -- we are not suggesting it's evidence in that

19    sense.

20            JUDGE AGIUS:  Okay.  I just wanted to pave the way for less

21    controversy basically.  First caveat, we have been taken by surprise on

22    this because we were obviously not informed beforehand of this, and it may

23    well be that also the Defence teams have been taken by surprise.  Is there

24    anyone of you who is prepared to stand up and comment on Mr. McCloskey's

25    proposition?  Yes, Mr. Bourgon?

Page 18157

 1            MR. BOURGON:  Thank you, Mr. President.  Indeed we are taken by

 2    surprise just this morning because it was Mr. McCloskey told us earlier

 3    this week that he wanted to discuss this exhibit, and then we received an

 4    e-mail saying that they would not discuss the exhibit.  So I don't have it

 5    with me this morning because we were so informed.

 6            Mr. President, we did discuss the issue with my colleague and

 7    whether it is our preliminary position, and I speak for the client I

 8    represent because my colleagues might have further observations, whether

 9    it is as a submission or as evidence, we feel it is inappropriate for this

10    book to come in in that format.  The format that my colleague is talking

11    about has indications and arguments in it, so it's not even a submission.

12    It's not like submitting something.

13            It's arguing that such a place in the book was written by a

14    definitive person and that at some point in the book there is a change of

15    date.  These are in our respective view, respectful view, arguments that

16    must be made at the end of the case in its argument.  I told my colleague

17    if he wants to take this book in its present form and to attach this to

18    his final brief as an argument, fine.  But it's not a submission, and it's

19    not evidence, neither or both.

20            I already told my colleague where he has those red brackets I

21    disagree with him on the conclusions that he has drawn from those red

22    brackets.  If this book should come in today as -- or at any time as a

23    submission, then we would have to answer this.  The work that will be

24    required to answer this submission is doing at this stage what we would do

25    normally at the end of the case, and I think the right time to do this is

Page 18158

 1    at the end of the case.

 2            Mr. President, at the beginning of this case, right in the first

 3    week, before we heard the first witness, I stood up before this Chamber

 4    and I told the Trial Chamber this case is not ready to begin because we

 5    need this logbook.  So I cannot agree more with my colleague that the

 6    translation of the logbook is required.  It is something that we need, we

 7    believe the Trial Chamber needs, that both parties needs.  We are here

 8    more than 18 months later.  We still do not have a full translation of

 9    these logbooks, whether it is the logbook, the notebook, the logbook, the

10    IKM book or another book.  All these books, we are still missing some

11    parts of translation today and just to facilitate now we would like to

12    take a specific segment from 11 to 23 July only and to give this to the

13    Trial Chamber, we believe, Mr. President, and that's our again preliminary

14    submission, that this would be inappropriate.  And we prefer simply for

15    the Trial Chamber to be given the translations that we have been asking

16    for since the beginning so that we have a full translation of the duty

17    officer notebook and a full version in B/C/S that we can compare but no

18    arguments and no submissions included in any of this material.

19            And just the last part is my colleague said two or three times

20    that this apparent exhibit would have been prepared at my request.  I'm

21    sorry, maybe I forgot something, but I never requested that exhibit.  I

22    may have been the first one to receive it.  I recall when I was sitting in

23    his office looking at the original books, when I was given this copy, but

24    I don't think it was prepared at my request in no way.  Thank you,

25    Mr. President.

Page 18159

 1            JUDGE AGIUS:  Yes, thank you, Mr. Bourgon.  Mr. McCloskey?  May I

 2    ask you a question before you proceed?  You said you had this book in two

 3    formats, one less controversial than the other or one more controversial

 4    than the other one.  The one you explained, I take it, is the

 5    controversial one?

 6            MR. McCLOSKEY:  That's what I called the teacher's edition.

 7            JUDGE AGIUS:  Yes.  And what's the other one?  Is it what

 8    Mr. Bourgon --

 9            MR. McCLOSKEY:  It's the same thing without the red marks and just

10    to clarify, the red marks are not -- argument so much as Kate Barr

11    concludes, for example, that on this -- in the book, ERN page so and so,

12    the handwriting from the third line down to the 6th line down is X.  And

13    so then we've just taken that and put that in the book so that -- just to

14    save the effort from doing that.

15            It gets slightly more interesting when we take the statement of a

16    guy, Ljubo Bojanovic, who was a duty officer, if you remember, he's dead

17    but he clearly in an interview with us stated -- pointed out where he

18    identified his handwriting.  So we've put a red mark on that and put Ljubo

19    Bojanovic.  So there is some hearsay in there as well, but it's mostly

20    people that acknowledge their own handwriting or it's based on Kate Barr's

21    report.

22            But we do have one that doesn't have the red marks.  I think it as

23    the ERN numbers in red.  But just to clarify, Mr. Bourgon, if you recall,

24    one of the early translations, the translation didn't match the number of

25    lines.  It was -- didn't mirror image the translation.  And Mr. Bourgon

Page 18160

 1    pointed that out and asked us to see if we could fix that and so we did.

 2    That was part of one of the main reasons why we did that.

 3            But those are the two versions that we have and it appears we

 4    don't really have that big an argument.  Mr. Bourgon says it should be at

 5    the end of the case.  I think do we really need to wait to the end of the

 6    case?  If it was a two week trial no problem, but I think it would be

 7    helpful for the trier of fact to have this at this time.

 8            JUDGE AGIUS:  Yes, thank you, Mr. McCloskey.  Mr. Bourgon?

 9            MR. BOURGON:  Thank you, Mr. President.  I think it makes a very

10    big difference to have an argument at the end or to have it now and to

11    basically use it because as they say, we always like when the Prosecution

12    is trying to teach the Trial Chamber, to teach the Defence, but in the

13    copy that we were given at the end there is kind of a summary and this

14    summary says that this specific bracket for the 12th of July, we say that

15    this is a specific duty officer and these are our reasons.  And then they

16    go through the list of reasons.  One of which is Kate Barr, the expert

17    handwriting, but many others are either statements or interviews, some are

18    in evidence, some are not in evidence.

19            JUDGE AGIUS:  He admitted that.

20            MR. BOURGON:  And that's why we feel it's not appropriate at this

21    time to get this material before the Trial Chamber.  At the end they want

22    to make their argument that this line was written by Drago Nikolic on the

23    15th because for whatever reason, that's fine.  Then the Trial Chamber can

24    look at the arguments at that stage and determine and give it the

25    appropriate weight.

Page 18161

 1            JUDGE AGIUS:  All right.  When is a submission not an argument?

 2    And when does an argument become a submission?

 3            MR. BOURGON:  First of all, the argument and the submission we

 4    have to answer to it, and we are saying, Mr. President, that it is not the

 5    right time to ask the Defence to answer to all of these submissions and

 6    which we feel that there is a difference between the two.  If you get this

 7    book as a submission, then you will have to render a decision on the

 8    submission.  If it's a submission, then we have -- we need to be able to

 9    respond to the submission and it has to be litigated.

10            JUDGE AGIUS:  And wouldn't it be more beneficial to the Defence if

11    you know beforehand what position the Prosecution is taking in relation to

12    each or several parts from this duty officer's notebook?

13            MR. BOURGON:  Absolutely, Mr. President.  We know that.  We have

14    received that book, and we know that this book where those brackets are,

15    we know where the gaps are, we know where the red brackets do not

16    represent in our view --

17            JUDGE AGIUS:  Okay.

18            MR. BOURGON:  -- what the position is.  We think it's not the

19    right time for the Trial Chamber to get this information.

20            JUDGE AGIUS:  Thank you, Mr. Bourgon.  Does anyone else apart from

21    Mr. Meek who will agree with you --

22            MR. MEEK:  Your Honour, thank you, Mr. President, Your Honours.  I

23    understand this is not a normal court, and you're professional judges, but

24    it's obviously a final argument.  And it's no place at this juncture in

25    this trial to have this submitted in any fashion.  It's just obvious it is

Page 18162

 1    argument.

 2            I don't care if Mr. McCloskey says based on Kate Barr, what she

 3    said, well, I guess on the other hand, you may have eight more copies

 4    submitted to you by eight Defence counsel and eight teams here.  This is

 5    argument.  And it's nothing else but final argument, and it should not be

 6    put in front of the Court in any fashion at this time.  Thank you.

 7            JUDGE AGIUS:  Anybody else would like to -- before I give you the

 8    floor again, Mr. McCloskey, let's hear what the various Defence counsel

 9    have to say.  Yes, first Mr. Sarapa first and then Madam Fauveau.

10            MR. SARAPA: [Interpretation] In relation to the material we have

11    been discussing, I want to point out the following:  I went through some

12    of the pages of the material, and I have to stress that some parts of the

13    logbook were misinterpreted fully.  They do not give the original meaning.

14            They give something that is quite the opposite.  And the material

15    in my view ought to be corrected in the sections where the contents were

16    misinterpreted -- mistranslated.

17            JUDGE AGIUS:  That's another aspect which is completely different

18    from what we have been talking about.  Madam Fauveau?  I hope I haven't

19    ruined your weekend.

20            MS. FAUVEAU: [Interpretation] No, not at all.  Not at all, Your

21    Honour.  And I was just about to say that I would like to join in and

22    support the arguments put forward by Mr. Bourgon.

23            JUDGE AGIUS:  Okay.  Yes, thank you, Madam.  Mr. McCloskey?

24            MR. McCLOSKEY:  Just briefly, Mr. President, though I guess we

25    have all day.  I won't do that to you of course.

Page 18163

 1            JUDGE AGIUS:  I'm a very patient man, Mr. McCloskey.

 2            MR. McCLOSKEY:  We know that.  We appreciate that.

 3            THE INTERPRETER:  Could the speakers please slowly, please,

 4    because everybody speaks the same language, thank you.

 5            JUDGE AGIUS:  My apologies.

 6            MR. McCLOSKEY:  We've provided this document weeks and weeks ago

 7    with the request, please go through it, let us know if there is any

 8    translation issues, any mistakes, anything you disagree with about who we

 9    have concluded on, and I'm -- this is the first I've heard that there is

10    any mistakes so we'll see Mr. Sarapa -- on the translation issues.  Other

11    Defence may not want to tell me where they think we are mistaken.  That's

12    their right and so we are fine there.

13            I think the issue of submission obviously I think that's -- we get

14    into philosophy there which I will stay out of.  And though there -- what

15    I'm hearing is an argument that sounds to me like we are back in an

16    adversarial system with a jury where the exhibits are being marked and

17    they go into evidence and they get set aside, and then when the jury goes

18    into the jury room they all go into the jury to look at it if they need to

19    see it.  Of course, that just has no applicability here.

20            I don't think they are suggesting that.  I can't imagine you not

21    being able to look at this evidence, evaluate the evidence, you know,

22    throughout the trial, otherwise the judgement wouldn't be able to come

23    down in -- for years.  So this is just to try to make it simpler.  It's

24    similar to the submission, as I think about it, regarding the intercepts.

25    We took evidence and then we backed it up.  But this is even simpler in

Page 18164

 1    the sense that it's just a -- here is the conclusion, here is the stuff

 2    the conclusion is talking about.  So having said that, I don't need to say

 3    any more.

 4            JUDGE AGIUS:  All right.  I think we've heard enough, no?  Not

 5    yet?  Madam Fauveau?

 6            MS. FAUVEAU: [Interpretation] Your Honour, nonetheless, I need to

 7    make a correction to what my colleague has just said because I remember a

 8    few months ago I sent an e-mail pertaining to translation errors, so I

 9    don't think it's a first time that they are hearing about translation

10    mistakes in this document.

11            JUDGE AGIUS:  Okay.  Thank you, Madam.  Yes, Mr. Nicholls?  Do you

12    want to complicate it further?

13            MR. NICHOLLS:  No.  I didn't know if you were just about to end,

14    but could I have one minute in private session before we finish today?

15            JUDGE AGIUS:  Of course.  Let's go into private session.

16                          [Private session]

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25                          [Open session]

Page 18166

 1            JUDGE AGIUS:  There is nothing else on our agenda now, things

 2    having developed the way they have.  So we stand adjourned until Monday

 3    morning.  Thank you.

 4                           --- Whereupon the hearing adjourned at 10.39 a.m.,

 5                          to be reconvened on Monday, the 26th day of

 6                          November, 2007, at 9.00 a.m.