Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32609

 1                           Wednesday, 11 March, 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 10.35 a.m.

 5             JUDGE AGIUS:  Good morning, everybody.  Madam Registrar, could

 6     you kindly call the case, please.

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

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

 9             JUDGE AGIUS:  I thank you, ma'am.  All the accused are here.

10     Prosecution is Mr. McCloskey and Mr. Elderkin.

11             Defence teams, I notice the absence of Mr. Nikolic, Mr.

12     Lazarevic, Mr. Bourgon, and Mr. Haynes.

13             Any preliminaries?  No.  Okay.

14                           [The witness entered court]

15             JUDGE AGIUS:  For the record, we are, as you can well see,

16     sitting pursuant to Rule 15 bis.  Judge Stole hopefully will be with us

17     tomorrow.  There are no protective measures here, Mr. Elderkin.

18             MR. ELDERKIN:  Good morning, Mr. President, Your Honours.  No, no

19     protective measures.

20             JUDGE AGIUS:  Good morning to you, sir.

21             THE WITNESS: [Interpretation] Morning.

22             JUDGE AGIUS:  And on behalf of the Trial Chamber and Tribunal, I

23     welcome you.  You have been summoned as a witness by the Prosecution.

24     Before you start your testimony, our rules require that you make a solemn

25     declaration that you will be testifying the truth.  The text is going to

Page 32610

 1     be handed to you now by madam usher.  Please read it aloud, and that will

 2     be your solemn undertaking with us.

 3             THE WITNESS: [Interpretation] I solemnly declare that I will

 4     speak the truth, the whole truth, and nothing but the truth.

 5             JUDGE AGIUS:  I thank you, sir.  Please make yourself

 6     comfortable.  You're going to be asked a series of questions by Mr.

 7     Elderkin for the Prosecution who will then be followed on

 8     cross-examination by others.

 9             Mr. Elderkin.

10             MR. ELDERKIN:  Thank you, Mr. President.  I'm sure you all know

11     that this witness is pursuant to Rule 92 ter, so it should be ...

12                           WITNESS:  NIKODIN JOVICIC

13                           [Witness answered through interpreter]

14                           Examination by Mr. Elderkin:

15        Q.   Good morning, sir.  We met this morning, and you know I'm

16     Rupert Elderkin, and I'll be asking you questions on behalf of the

17     Prosecution.  Did you make a statement to ICTY investigators on the 17th

18     of March last year?

19        A.   Yes.

20        Q.   And have you read the statement in a language that you

21     understand?

22        A.   Yes.

23        Q.   Do you attest that the statement accurately reflects what you

24     said and that your answers would be the same if you were asked the same

25     questions again today?

Page 32611

 1        A.   Yes.

 2             MR. ELDERKIN:  Your Honours, I would offer that statement into

 3     evidence pursuant to Rule 92 ter as P04438.

 4             JUDGE AGIUS:  Thank you.  Any objections?  We hear none, so let's

 5     proceed.  The statement is admitted.

 6             MR. ELDERKIN:  Thank you, Mr. President.  I should also ask the

 7     witness to state his name on the record.  We haven't had that yet.

 8        Q.   So, could you please state your name?

 9        A.   Nikodin Jovicic.

10             MR. ELDERKIN:  And if I may read a brief summary of the statement

11     into the record.

12             The witness Nikodin Jovicic became a deputy commander of the

13     uniformed police in Han Pijesak police station in May 1992.  He was still

14     in this post in July 1995.  At that time, the commander of the uniformed

15     police in Han Pijesak was Milan Perovic.  The chief of the Han Pijesak

16     police station was Goran Kanostrevac, nicknamed Kane.  Before the war,

17     the witness knew a person named Himzo Mujic, a labourer who was born

18     between 1960 and 1965 and came from the village of Rijeka.  This was a

19     Muslim village a few kilometres towards Zepa.

20             Mujic was one of the witness's operational contacts in his work

21     as a policeman.  The witness used to obtain information from Mujic

22     regarding events in the Han Pijesak area.  They lost contact in mid-1992.

23             The witness heard that Himzo Mujic and his brothers went to

24     Srebrenica and that his older brother Abdulah was killed in Srebrenica in

25     1992.  He heard that the remaining brothers were killed after the fall of

Page 32612

 1     Srebrenica.

 2             The witness does not recall whether he had information about

 3     Mujic's whereabouts in July of 1995 or whether he tried to help Mujic,

 4     although he does not exclude that he might have done so.  In any event,

 5     he was not in a position to help Mujic.

 6             The witness read an intercept from July 1995 bearing the

 7     ERN number 0080-1169 through 0080-1174, which is 65 ter 1323A.  In this

 8     document, the name of Himzo Mujic is mentioned in the context that he

 9     would like to talk to Jovicic because he used to work for him.

10             The witness believes that this intercept refers to Mujic wishing

11     to talk to the witness, bearing in mind that Himzo Mujic cooperated with

12     the witness before the war.

13             The witness noticed the name of Neso Rubez in this intercept.  He

14     knew Nenad Rubez from elementary school in Han Pijesak and knew that

15     Rubez had graduated from the law faculty.  In 1995, Rubez was in the army

16     doing office work, and the witness saw him in uniform in Han Pijesak.

17     The witness does not recall any conversation with Rubez regarding Himzo

18     Mujic, nor does he recall any conversation regarding Himzo Mujic with his

19     then Chief Goran Kanostrevac.  The witness heard that there was a

20     military prison in Vlasenica known as Susica, but he does not recall the

21     time-period.  He never went there and had no contacts with prison

22     warders.

23             Your Honours, that's the end of the summary.  I'd ask if I may

24     show the intercept to the witness and ask him one question on that, and

25     that will be the extent of things.

Page 32613

 1             JUDGE AGIUS:  Please go ahead.

 2             MR. ELDERKIN:  Could I have 65 ter 1323A and its English

 3     translation, 1323B, in e-court.  I also have the original of the

 4     intercept in this notebook if I may let the witness see that.

 5        Q.   Sir, is this the intercept you were shown in your interview with

 6     the investigators in 2008?  It starts on the left-hand side.

 7        A.   Yes.

 8             MR. ELDERKIN:  Thank you, sir.  That's all I have to ask.

 9             JUDGE AGIUS:  Thank you, Mr. Elderkin.

10             Mr. Zivanovic.

11             MR. ZIVANOVIC:  Just one question, Your Honour.

12             JUDGE AGIUS:  Yes, please go ahead.

13                           Cross-examination by Mr. Zivanovic:

14        Q.   Good morning, Mr. Jovicic.  I have just one question for you with

15     regard to your evidence so far.  You've noticed in the notebook that you

16     have just been shown the two extension numbers, and I know that a lot of

17     time has lapsed, and my question to you is this:  Do you remember these

18     extensions 343 and 342?  Did you ever call them?  Did you use them?  If

19     you remember.

20        A.   No, I don't remember.

21             MR. ZIVANOVIC: [Interpretation] Thank you.

22             JUDGE AGIUS:  Thank you.

23             Mr. Ostojic.

24             MR. OSTOJIC:  No, Mr. President, thank you.

25             JUDGE AGIUS:  Thank you.

Page 32614

 1             Ms. Nikolic.

 2             MS. NIKOLIC: [Interpretation] No questions, Your Honours.

 3             JUDGE AGIUS:  Mr. Gosnell.

 4             MR. GOSNELL:  No questions, Mr. President.

 5             JUDGE AGIUS:  Thank you.

 6             Ms. Fauveau.

 7             MS. FAUVEAU:  [Interpretation] No questions, Your Honour.

 8             MR. JOSSE:  Same.

 9             JUDGE AGIUS:  Mr. Sarapa.

10             MR. SARAPA: [Interpretation] No questions.

11             JUDGE AGIUS:  That was quick.  Any questions, Judge Kwon?

12             JUDGE KWON:  No.

13             JUDGE AGIUS:  And I don't have any questions either, which means

14     that you have probably established the record, at least in this trial.

15     We're finished with your testimony, sir.  Our staff will assist you in

16     the arrangements necessary for your repatriation.  On behalf of the Trial

17     Chamber, I wish to thank you for having come over, and on behalf of

18     everyone I wish you a safe journey back home.

19                           [The witness withdrew]

20             JUDGE AGIUS:  Apart from -- Mr. Elderkin, you have -- apart from

21     the statement, the 92 ter statement, you don't have any other documents,

22     I take it?

23             MR. ELDERKIN:  The intercept as well.

24             JUDGE AGIUS:  Okay.

25             MR. ELDERKIN:  And that's listed as 1323A, and in fact there are

Page 32615

 1     printed versions as well.  It's A through F on the tender list.

 2             JUDGE AGIUS:  Okay.  Thank you.  Any objections?

 3             MR. ZIVANOVIC:  No objections.

 4             JUDGE AGIUS:  I suppose the other Defence teams are not that much

 5     interested?  Okay.  So the two documents are admitted.  One has already

 6     been.

 7             Anything else?  Ms. Nikolic?

 8             MS. NIKOLIC: [Interpretation] Your Honour, I owe you information

 9     about the two documents that concern -- 3D555 is going to be withdrawn

10     from the list.  This is Krstic.  3D556, by controlling the transcript we

11     have established that not the whole text has been read out.  What has

12     been read out is not relevant [as interpreted], and that's why we adhere

13     by our proposal that the evidence by Hadzihasanovic should be admitted

14     into evidence.

15             JUDGE AGIUS:  All right.  I just want to make sure that we've got

16     the numbers correct.  I remember them from yesterday.  They are correct.

17     So the only remaining one is 3D556.

18             MS. NIKOLIC: [Interpretation] Yes, Your Honour.

19             JUDGE AGIUS:  Do you wish to comment, Mr. McCloskey?

20             MR. McCLOSKEY:  No, Mr. President.  I think our position remains

21     the same.

22             JUDGE AGIUS:  Because my question to you, I need to have it clear

23     in my mind, is the following:  You asked questions to that particular

24     witness based on the Hadzihasanovic statement or document, anyway.  What

25     you are saying is the part read out and which shows up in the transcript

Page 32616

 1     is not really relevant while the rest is; is this what you are

 2     submitting?

 3             MS. NIKOLIC: [Interpretation] No, Your Honour.  I may have not

 4     been clear.  Everything is relevant.  What has been read out is also

 5     relevant.  However, in order to gain a complete capture, it is about the

 6     strength of the 28th Division that Mr. Hadzihasanovic describes, and only

 7     one part in the description of the whole unit is contained in the part

 8     that was read out from the transcript.  However, the whole picture, the

 9     whole description of that unit can be found on the previous page.  That's

10     why we believe that the Trial Chamber would benefit from having both

11     pages in evidence.

12             JUDGE AGIUS:  So the first conclusion is that the transcript as

13     it appears on page 7, line 7, is not correct because what we have here is

14     what has been read out is not relevant.  So that needs to be corrected.

15             The second thing is the following:  Was the part that was not

16     read out put to the witness or not?

17             MS. NIKOLIC: [Interpretation] No, not fully, Your Honours.

18             JUDGE AGIUS:  And on what basis, therefore, are you requesting

19     its admission?  Definitely, we cannot look at it or consider it as the

20     testimony of Hadzihasanovic because he was not a witness yet.  If it was

21     not put to the witness -- I don't know what -- the Prosecution's position

22     I think was clear yesterday, but -- it was clear enough, but my question

23     is this.  Ex admisus you did not put that part which you haven't read out

24     during the testimony to the witness.  On what basis are you seeking the

25     admission of that part; and if admitted, what would it serve as a piece

Page 32617

 1     of evidence?  What's its purpose, in other words?

 2             MS. NIKOLIC: [Interpretation] The whole part concerns one and the

 3     same topic, the armament and the strength of the 28th Division, both

 4     pages.  The part that was read out was provided to the witness in detail,

 5     and the context and the part that was not read is identical to the part

 6     that was read.  They are both relevant parts.  However, to avoid reading

 7     the entire text, we decided on reading just one part that refers to the

 8     entire context, and it is about the strength and the armament of the

 9     28th Division.  I don't know if I've been of assistance to you with this.

10             JUDGE AGIUS:  Thank you.  It's now clearer.  Only problem that I

11     have, again, is if they are the same, if they say the same thing, why do

12     you seek to have them both?  I don't understand that.

13             Mr. McCloskey?

14             MR. McCLOSKEY:  Our objection is principally based on the

15     precedent of something like this coming in.  We'll take another look at

16     is it, as well, to see if it's a fair description of the column and in

17     which case we can agree that it'll come in.  I just, as you know, take

18     precedent of the situation and --

19             JUDGE AGIUS:  I think that's very fair on your part.  So try to

20     do that, and the moment you reach a decision, could you kindly

21     communicate it to the Trial Chamber.

22             Now, I need to consult my colleagues on something.

23                           [Trial Chamber confers]

24             JUDGE AGIUS:  Yes, we were checking actually when the dead-line

25     is for the filing of the Defence responses to the Prosecution's motion

Page 32618

 1     for rebuttal evidence, and we have a confirmation that it falls this

 2     coming Monday.  So please, if you can even file it before, that would be

 3     even better because we are not sitting on Friday, and it would give us

 4     the opportunity to work on it over the weekend as we do most of the time,

 5     much to our own detriment, but I think this is something that we need to

 6     chase up and decide as quickly as possible.  So the earlier you file it,

 7     the better it will be.

 8             Mr. McCloskey.

 9             MR. McCLOSKEY:  Yes, Mr. President.  I had said in an e-mail at

10     some point to everyone that we can be ready to go the following Monday

11     from that due date.  Of course, we need your decision.

12             JUDGE AGIUS:  Well, obviously.  I mean --

13             MR. McCLOSKEY:  We can set up for the following Monday, and, in

14     fact, we'll plan on setting up for the following Monday if you think you

15     can get the decision out that week.  If not, we'll take whatever you say,

16     and we'll, of course, adjust based on your decision.

17             JUDGE AGIUS:  The thing, Mr. McCloskey, as you can well imagine,

18     you and all your colleagues on the other side, we have not started

19     discussing the merits or the substance of your motion, reason being we

20     don't know what the position of the various Defence teams will be, and we

21     want to know -- want to hear the position of the Defence teams before we

22     start our discussions.

23             Our plan is to decide as quickly as possible after having the

24     Defence teams' position.  So I'm pretty sure that you can expect a

25     decision sometime in the course of next week, as early as possible after

Page 32619

 1     the filing of the various responses.  In the meantime, what we have

 2     prepared is the jurisprudence with which we were already quite familiar

 3     in any case, but that doesn't help us much until we've heard the

 4     Defences' position.

 5             Yes, we will also hand down soon - although I would prefer to

 6     deal with it orally - the decision on the various documents that were

 7     discussed yesterday.  We'll try to come back to you either tomorrow,

 8     Thursday, if we can, on at least some of them, or then Monday.  We'll

 9     see.

10             You have got no other witnesses for today?  Mr. McCloskey?

11             MR. McCLOSKEY:  No.  On this topic, as you are aware, there's one

12     outstanding witness that the order is following around somewhere and has

13     yet to meet as far as I know, but we'll keep you updated on that.

14             JUDGE AGIUS:  All right.  And Mr. Sarapa, do you have -- what are

15     your plans?

16             MR. SARAPA: [Interpretation] Not for today, we don't have a

17     witness.  Our expert witness, the linguistic expert will come tomorrow.

18             JUDGE AGIUS:  All right.  That being so, we've got nothing else

19     to do in here today.  We stand adjourned, hoping that Judge Stole will be

20     with us tomorrow; otherwise, we won't be able to sit.  Thank you.

21                           --- Whereupon the hearing adjourned at 11.01 a.m.,

22                           to be reconvened on Thursday, the 12th day of

23                           March, 2009, at 9.00 a.m.