Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13132

1 Tuesday, 30 January 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

6 case.

7 THE REGISTRAR: [Interpretation] Good morning, Mr. President. Case

8 IT-04-74-T, the Prosecutor versus Prlic et al.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

10 Today is Tuesday, the 30th of January, 2007. I greet the

11 Prosecution, the Defence counsel, the accused, and all the people in and

12 around the courtroom.

13 I am going to give the floor to Mr. Registrar because he's going

14 to give us some IC numbers.

15 THE REGISTRAR: Thank you, Mr. President.

16 3D has submitted a reply to the OTP's response to 3D's documents

17 tendered through witness Jeremy Bowen; that will be given number IC 264.

18 The OTP has submitted a response to 3D's objections regarding the

19 admission of the videos through Witness Rajkov; that will be given Exhibit

20 number IC 265. The OTP has also submitted a list of documents to be

21 tendered through Witness CY; that will be given Exhibit number IC 266. 4D

22 has submitted a list of documents to be tendered through Witness CY; that

23 will be given Exhibit number IC 267. The OTP has submitted a list of

24 documents to be tendered through Witness CZ; that will be given Exhibit

25 number IC 268. And 3D has submitted a list of documents to be tendered

Page 13133

1 through Witness CZ; that shall given Exhibit number IC 269.

2 Thank you, Your Honours.

3 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. We're

4 going to move to private session.

5 [Private session]

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24 [Closed session]

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9 [Open session]

10 THE REGISTRAR: We are in open session.

11 JUDGE ANTONETTI: [Interpretation] In open session, Mr. Mundis,

12 what is our schedule for tomorrow? We have three persons scheduled. I

13 think I understood that at least one of them is the subject of an

14 application for protective measures.

15 MR. MUNDIS: That is correct, Mr. President. The second witness

16 who is scheduled to appear tomorrow, we have made an application for

17 protective measures on behalf of that witness. My colleague Mr. Bos will

18 be meeting with the witness later this afternoon, so we have no further

19 information other than that which was conveyed to the Trial Chamber

20 several days ago based on a telephone conversation that was had with the

21 witness. So we have no further information.

22 The three witnesses scheduled to appear tomorrow, we'll be meeting

23 with them later this afternoon, so as far as we know at this point, the

24 three will be ready to testify tomorrow. And as I indicated yesterday,

25 they will all be 92 ter witnesses, although of course in light of the

Page 13216

1 Trial Chamber's specific directions concerning some of the questions

2 needing to be put to the witnesses, there may be some additional questions

3 to the extent that the statements don't adequately address the questions

4 which the Trial Chamber has asked us to ensure are answered.

5 JUDGE ANTONETTI: [Interpretation] Before the expert arrives, thus

6 we are to hear nine victim witnesses tomorrow, Thursday and Monday. So my

7 next question is, will your expert be aware of transcripts of the evidence

8 of these witnesses? Because if there are protective measures applied, he

9 will not be aware of certain things that are outside the transcript, for

10 instance, if we work in closed session.

11 MR. MUNDIS: Thank you, Mr. President. One slight -- perhaps it

12 was a translation error. We will hear eight of the victim witnesses. We

13 have two scheduled for Monday. So we'll hear eight of the 11 victim

14 witnesses prior to the expert, and then three after the expert has

15 completed his testimony.

16 Moving on to the specific question, it is not our intention to

17 produce or supply the expert with transcripts. Rather, because of the

18 nature of these incidents and the fact that we were intending to use and

19 rely upon the 92 bis or 92 ter procedure with them, it's our position that

20 the expert had adequate information available to him in the form of the

21 written statements provided by the witnesses in addition to -- or,

22 actually to the information that we provided him, not to the written

23 statements, but the information that was provided to him. Again, as we've

24 explained in a letter that I submitted a couple of weeks ago, the expert

25 is actually being called for a relatively limited purpose, and we've

Page 13217

1 outlined in the past exactly what it is that we expect this expert to be

2 in a position to testify about.

3 So the short answer to Your Honour's question is that we are not

4 in a position, or we are not intending to be in a position, of providing

5 him with transcripts of the witnesses' testimony.

6 JUDGE ANTONETTI: [Interpretation] Very well. So that everything

7 is quite clear, the written statements of those eight witnesses have

8 already been provided to the expert. Is that what you're telling me?

9 MR. MUNDIS: No, I misspoke. I tried to correct myself.

10 Obviously I wasn't successful in doing that. What we provided that expert

11 with was very basic information, and again for the purpose -- including

12 the information contained in the schedules. And he was also provided with

13 certain documents. We've provided copies of all of that material,

14 including the letter that was provided to the expert, to the Trial

15 Chamber, and I believe we did that about 10 days ago or perhaps a little

16 bit more.

17 Again, let me be very clear as to what this expert will be

18 testifying about in terms of his testimony when he comes and is

19 directed -- or the direct examination of the Prosecution. We'll be asking

20 him questions about sniping in general. We'll be asking the expert about

21 training that snipers may undergo. We'll be talking to him about sniping

22 in very general terms. We will then discuss with him ranges, sniping

23 ranges, what are the effective ranges of certain types of sniping weapons,

24 what are the effective ranges of visibility, that is, what the human eye

25 or a trained sniper can see at certain distances, shapes, et cetera. It's

Page 13218

1 all contained in his report.

2 The gist of -- the bottom line of the expert's conclusions with

3 respect to the 12 scheduled incidents is quite simple, and in fact it is

4 the -- the issue really is, is it possible from location X to identify a

5 person and to shoot them from that distance? That's about as far, to a

6 certain degree, as that expert testimony will go. The expert is not

7 briefed or was not briefed with respect to particularities of

8 confrontation lines or what unit was at what location on confrontation

9 lines. He doesn't have that information or he wasn't provided that

10 information.

11 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, it happens that I

12 know quite a bit about these matters. I have already had to deal with

13 such matters in my past professional experience. That's why I'm asking

14 you very precise questions, to avoid wasting time when the expert arrives.

15 In his expert report, the expert speaks of 12 incidents. Do they

16 include the eight cases, the cases of witnesses who are going to appear

17 before the expert? Because if the expert comes and tells us that if

18 such -- that with such a rifle, such a range, this and that can be done,

19 that's not what we want. I don't want to spend three days with the expert

20 without achieving much. We want to be productive.

21 So a simple question: Do the 12 incidents covered by the expert

22 report include the eight cases of witnesses who are going to appear before

23 him? That was the purpose of that manoeuvre, the purpose of rescheduling

24 these witnesses to appear before the expert, so that we can ask the

25 expert, "In case number 4, you tell us this. The witness told us that or,

Page 13219

1 rather, the victim told us this," et cetera.

2 MR. MUNDIS: Yes, Mr. President. The eight witnesses who are

3 appearing prior to the expert are among the 12 that are scheduled and

4 which are discussed in his expert report. Absolutely.

5 JUDGE ANTONETTI: [Interpretation] Very well. That already is good

6 news.

7 Now, a technical question that I find is curious. You told us

8 about a 360-degree procedure. Can you explain what that is?

9 MR. MUNDIS: Absolutely. And I believe, if I'm not mistaken - my

10 colleague Mr. Bos will correct me, obviously, if I'm wrong - I believe

11 you've seen at least one of these with respect to a witness who testified

12 earlier. Mr. Pejanovic, when he testified, you actually observed one of

13 these relating to sniping incident number 2 when he testified, and again,

14 given that we have a few minutes left, I can explain how these were done.

15 With each of the sniping victims or witnesses, depending on

16 whether it was the actual person who was shot or someone who eyewitnessed

17 the event, we returned -- an investigator and photographer of the Tribunal

18 went with the victim or witness to the actual location where the person

19 who was the victim was shot. A videotape was taken, and you'll see those

20 videotapes next -- well, starting tomorrow with the witnesses.

21 A very short interview took place. The witness was asked where

22 they were standing, what -- et cetera, what position they were in at the

23 time of the shooting. This was all videotaped, and you'll see that.

24 Immediately upon completion of that exercise, a can of yellow

25 spray paint was used and an X was placed at the location where the victim

Page 13220

1 was at the time of the shooting. The Tribunal's photographer then placed

2 a tripod on top of that location where the X was and began taking a series

3 of digital photographs in each direction, rotating the camera on the head

4 of the tripod and taking a series of photographs.

5 Those photographs are then -- which were digital, those digital

6 photographs are then spliced together so that what we have is a panoramic

7 360-degree view from the exact location where the victim was at the time

8 of the shooting.

9 We will then ask the victim or witness to observe that, to look at

10 that photograph, and if, based on what they heard at the time of the

11 shooting, they can pinpoint or identify the location where they heard the

12 gunshot come from, we'll ask them to stop the photo, and perhaps if

13 they've done that also in proofing, we will capture that during the

14 proofing and bring in a hard copy of that photo so that they could mark it

15 in Court.

16 I will tell Your Honours, because this is a Sanction -- a

17 programme that's run out of the Sanction, it is not possible in the

18 courtroom to run it via e-court, which means the witness will not be able

19 to mark those 360-degree photographs in court unless we have a still

20 capture that we take the afternoon before, the morning before we proof the

21 within. We will try to do that, and if possible, we will then have a

22 still photograph which the witness can mark based upon the 360-degree

23 photographs.

24 My colleague Mr. Bos has handed me a note that I should also put

25 on the record that apparently the Defence teams were invited to

Page 13221

1 participate when these videos and 360-degree photographs were taken, and

2 my understanding is that counsel for Mr. Pusic actually did, in fact,

3 attend at least some -- one of the incidents. He attended with respect to

4 the video and photograph with respect to one of the scheduled incidents.

5 I'm happy to answer any further questions or elaborate upon this

6 procedure, but again, basically we'll be tendering the 92 ter statement,

7 showing the video, showing the 360, dealing with any medical or other

8 types of documents with the witnesses and ensuring that the specific

9 questions that the Trial Chamber wanted answered are answered to the best

10 of the witness's or victim's ability here in court.

11 That's how we anticipate proceeding. We believe it will take

12 approximately 20 minutes for each of the victims or witnesses in order to

13 go through those numerous steps with them.

14 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

15 Sir, lastly, and this is a concern to me, my colleagues as well,

16 that is the position, the location, of the victim inside the town of

17 Mostar. I believe there is a tourist book on Mostar that we used on

18 several occasions and there is a map made by Mr. Praljak where he drew the

19 positions of the military, but your document and Mr. Praljak's document

20 are not very precise. Are you going to avail yourself of the opportunity

21 of having this witness, this expert witness, and put before him a very

22 precise map or plan of the town, or are you going to continue using the

23 map we have been using until now, which is not very precise?

24 MR. MUNDIS: Again, Mr. President, Your Honour --

25 JUDGE ANTONETTI: [Interpretation] And the reason I'm asking you

Page 13222

1 this question is that the Defence has already made a point through several

2 witnesses that there were military positions inside Mostar, and it's

3 possible that some of the fire targeted military targets, and

4 unfortunately between the military target and the shooter there happened

5 to be a victim.

6 For us it is important to have indisputable elements in order to

7 make our conclusions, and these include maps that would enable us to

8 follow the testimony of the witness who is going to tell us at that time,

9 on that day, "I was in this street." And we'll be able to see that on the

10 map, and then all of us will be able to see if there is a General Staff or

11 a Main Staff headquarters close to that location or not.

12 Mr. Mundis.

13 MR. MUNDIS: Mr. President and Your Honours, I've tried to be as

14 clear as I can on this point, but this -- I will tell you with respect to

15 the expert witness that he was not briefed on this issue and he will not

16 be in a position to testify about the locations of military units in and

17 around Mostar. That was not what this expert was asked to do.

18 With respect to the actual victims and witnesses, they will be

19 questioned about the presence of -- or their statements contain

20 information about the presence of military units in some instances. We

21 can ask them questions about whether there was active combat going on at

22 the time they themselves were shot. We also have as part of the video

23 package an aerial overview map, which you're familiar with, that has the

24 specific incidents listed, and my case manager has that available now. We

25 can put that up on the screen, if Your Honours would be interested in

Page 13223

1 seeing it.

2 THE ACCUSED PRALJAK: [Interpretation] Your Honour.

3 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Praljak.

4 THE ACCUSED PRALJAK: [Interpretation] With Your Honour's

5 permission, I'd like to say a few words about the maps.

6 I'd like to ask Mr. Mundis whether there will be a map where the

7 distances are shown precisely between the victim's position and the place

8 for which the witness or expert thinks that the sniper fire came from,

9 because I'm afraid that the maps you've brought in so far were not precise

10 enough and were worthless in that respect. If you can't come by a map,

11 then we will try and find one. So that's my first question, whether the

12 assumed position of the sniper and the position of the victim, whether

13 they include the distances and can be seen.

14 Today there are laser devices to measure distance. So I'm asking

15 you whether your expert that was in Mostar had this laser device which

16 enabled him to calculate the distance from the sniping position to the

17 victim's position; and then if we knew the calibre of the shell, the range

18 and all the other elements that we need to know in order to be able to

19 establish anything.

20 MR. MUNDIS: That information is contained in the expert report.

21 That is precisely the type of information that the expert has produced and

22 has included in his report. He used a laser range finder. He went to the

23 locations where the victims were. He was provided with information about

24 suspected or known locations of snipers. He measured those distances. He

25 examined medical documents and photographs, to the extent those were

Page 13224

1 provided to him, and made certain professional judgements based on the

2 wound types, et cetera, of the type of weapon that was used. And those

3 the bases -- it's all set forth in his report upon which he reached the

4 conclusions that he reached.

5 But again, it is not our intention to be showing this expert

6 military maps. It is not our intention to be asking him detailed

7 questions about locations of certain HVO units or known -- with respect to

8 the confrontation lines. That is not part of what this expert was asked

9 to do.

10 Again, if it would be of assistance, I am aware of the time and I

11 am aware that there's another trial scheduled to start in this courtroom,

12 but if you would like to see the map, I'm happy to put that up.

13 JUDGE ANTONETTI: [Interpretation] Mr. Petkovic.

14 THE ACCUSED PETKOVIC: [Interpretation] Your Honours, then I can

15 ask a question, whether the expert starts out from the premise that it was

16 completely quiet in Mostar that day, that nobody was shooting except for

17 that sniper, and visibility was excellent, that the sun came out

18 properly. That's an ideal situation.

19 So I'm asking you whether we're going to receive a report from the

20 BH army about that day, what was happening that day in Mostar, whether

21 there was fighting or not, what the weather conditions were like.

22 Everybody says it was a clear day, so this should be proved. What angle

23 was the sun shining on Mostar that day? What was the relationship between

24 the target and these other facts? All those questions need to be answered

25 in an expert report. The easiest thing is to bring in an expert who will

Page 13225

1 say it was nice. "I measured a distance of 700 metres. This rifle can.

2 This rifle can't." I would like to -- it can't be guesswork. He can't

3 guess at the rifles we had, and that is something that the Prosecutor must

4 see to. According to the expert, it would appear that our rifle cannot do

5 that but we purchased one in the West that can, or whatever.

6 JUDGE ANTONETTI: [Interpretation] Well, the weather conditions are

7 an important factor. We can always ask the witness the question, but I

8 assume that if the expert did his work properly, he would have to have

9 consulted the weather reports of the period to see, for example, a random

10 example, the 9th of May, 1993, whether it was raining, whether it was

11 sunny, whether it was cloudy, or whatever. So one can only hope that the

12 expert did his work properly and looked into all those factors, or don't

13 you know?

14 Mr. Mundis.

15 MR. MUNDIS: Mr. President, Your Honours, again the information

16 concerning the weather conditions and visibility is contained in the

17 witnesses' written 92 bis -- the written statements which we will be

18 dealing with under 92 ter. To the extent that information is not

19 included, we will certainly be asking the witnesses questions concerning

20 the weather on the day in question, concerning visibility on the day in

21 question. It was not something that the expert witness was particularly

22 briefed on as well. There are certain assumptions that are based on in

23 that report, and again what we are basically, when it's boiled down,

24 trying to show through this expert is that it is possible from point A to

25 target an individual at point B and to shoot them.

Page 13226

1 JUDGE ANTONETTI: [Interpretation] We must stop there. Our time is

2 up for the day. So between now and tomorrow, the Defence will have ample

3 time to give thought to those problems, including weather conditions.

4 We'll resume work tomorrow morning at 9.00.

5 --- Whereupon the hearing adjourned at 1.46 p.m.,

6 to be reconvened on Wednesday, the 31st day of

7 January, 2007, at 9.00 a.m.