1 Thursday, 2 May 2002

2 [Open session]

3 [The accused entered court]

4 [The accused Milan Simic not present]

5 --- Upon commencing at 2.24 p.m.

6 JUDGE MUMBA: Please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Case number

8 IT-95-9-T, the Prosecutor versus Blagoje Simic, Milan Simic, Miroslav

9 Tadic, and Simo Zaric.

10 JUDGE MUMBA: Yes, Ms. Baen.

11 MS. BAEN: Your Honour, I'm assuming since you called on me that

12 you want to go straight into the A/B issue. And --

13 JUDGE MUMBA: Yes, yes.

14 MS. BAEN: Before I get into the -- well, to the very simple issue

15 at hand, I would like to inform the Trial Chamber and the Prosecution's

16 office, the OTP, that I was just given information that one of the main

17 witnesses who was involved in the seizure or discovery or whatever it was

18 of this Variant A/B document, Sarajevo, that we heard about in the

19 hearing, that the main witness -- one of those four statements is now in

20 prison awaiting a trial for official misconduct is what I heard. It was

21 in a newspaper article that we can bring to the Court tomorrow -- or we

22 don't have Court tomorrow. But next week. In light of this situation and

23 upon confirming this information for the Prosecution, I would ask them

24 once again to consider agreeing to bringing these four witnesses for

25 cross-examination so we don't have to continue this issue and so the Trial

1 Chamber can have all the information around the suspect document in order

2 to make a fully informed decision on the admissibility of this -- of this

3 document. And so I wanted to make them aware that this person from the

4 secret police is now in prison for official misconduct or something of

5 that sort and ask them again if they would like to consider agreeing to

6 bring those four witnesses in front of the Trial Chamber.

7 JUDGE MUMBA: Which witnesses are these? The ones called by the

8 Prosecution?

9 MS. BAEN: Can you pronounce the name? I can't pronounce the

10 name.

11 JUDGE MUMBA: Are these the witnesses called by the Prosecution.

12 MS. BAEN: The four witnesses that we're talking about having come

13 testify, that's the issue that I'm addressing from the Court. We just

14 found out that one of those four witnesses -- the main witness is in

15 prison. Well, one of the four witnesses from the Bosnian secret police

16 who was involved in finding this copy of the Variant A/B document in

17 Sarajevo.

18 JUDGE MUMBA: Any comments from the Prosecution?

19 MS. REIDY: Well, Your Honour, I have to say I'm not exactly clear

20 which witness Ms. Baen is talking about, but our position remains simply

21 the same. There is no need to call any of these witnesses with regard to

22 the authenticity of this document. The Prosecution has submitted its case

23 on authenticity. If the Defence want to challenge any of the evidence,

24 then they can do that, it's up to them to call their witnesses. And no --

25 our position is the same. These witnesses do not need to be called, and

1 we would not agree to -- to them being called, even though one of them

2 allegedly in this report is facing some sort of court proceedings.

3 MS. BAEN: I was just asking for an agreement, Your Honour. I

4 haven't -- I'll go into the short reasons why we think they should be here

5 to testify before the Trial Chamber. But the name of this individual

6 is -- and forgive my pronunciation Your Honour, I know it's wrong, Sead

7 Alemanovic, for purposes of the record.

8 Would you like for me to continue, Your Honour?

9 JUDGE MUMBA: Yes you can go ahead with the submissions whether or

10 not you should call your witnesses before the Prosecution close their case

11 on the same issue of Variant A and B.

12 MS. BAEN: All right. Well, first of all for purposes of

13 clarification, these aren't our witness that is we're talking about

14 calling. These are the Prosecution witnesses.

15 JUDGE MUMBA: Yes, that is clear.

16 MS. REIDY: No. Objection. They are not our witnesses. I'm

17 sorry, they are witness that the Defence would like to call with

18 respect to an evidentiary issue before this Chamber. They are not

19 Prosecution witnesses. We have --

20 JUDGE MUMBA: Oh, they are not the ones that were called -- oh I

21 see --

22 MS. REIDY: No. They have nothing to do with the Prosecution.

23 They are witness that the Defence has said they believe are necessary

24 for this Chamber to hear before ruling on admissibility. The Prosecution

25 opposes that and was not on the record that they are Prosecution

1 witnesses.

2 JUDGE WILLIAMS: So to be clear, Ms. Reidy, these were persons who

3 were mentioned in the report of the investigator Mr. O'Donnell and were

4 mentioned when he gave his testimony here. And that's how this issue then

5 arose. Is that correct?

6 MS. REIDY: Your Honours, absolutely correct. And I believe those

7 witnesses and two other person -- they are -- those persons and two other

8 persons who signed letters of correspondence with the Office of the

9 Prosecutor from the Republika Srpska authorities and indeed two indictees

10 before the Tribunal who Mr. Pantelic had also put on the list of the

11 witness that is the Defence seek to have heard.

12 JUDGE MUMBA: [Microphone not activated] So the position is that

13 the Defence will make submissions why they think they want -- why they

14 think these witnesses should be called.

15 THE INTERPRETER: Microphone, please.

16 JUDGE MUMBA: Yeah the Defence will make submissions why they

17 think these witnesses should be called?

18 MS. BAEN: First of all --

19 JUDGE MUMBA: After that, the Trial Chamber will make a ruling on

20 that. Thereafter, the matter will proceed, depending on the ruling of the

21 Trial Chamber on which way to go.

22 MS. BAEN: First of all, these witnesses were mentioned -- were

23 not mentioned by name in Mr. O'Donnell's summary. What happened was we

24 were in the middle of the hearing on the Variant A/B document, and

25 Mr. O'Donnell in the middle of the hearing came up with these statements

1 when I started asking him detailed questions about -- well, where did this

2 document come from exactly? He couldn't tell me. All of a sudden these

3 witness statements appear that had been in the custody of the OTP for

4 years is what it said in the transcript, what Mr. O'Donnell testified to.

5 That's one thing --

6 JUDGE MUMBA: Ms. Reidy.

7 MS. REIDY: Objection. I know I -- Ms. Baen make her

8 submissions. But again, this is not what -- again, what happened.

9 Mr. O'Donnell was going to testify about Variant A/Variant B and the

10 circumstances in which the Office of the Prosecutor came to get a number

11 those copies. In line at that time with Your Honour Judge Singh's

12 instructions, a summary of his testimony and the issues to which he would

13 testify were -- was compiled and was given to the Defence. It was also

14 submitted to the Chamber with supporting documentation. It is very clear

15 what Mr. O'Donnell would testify to, that he took -- that he himself

16 obtained one of the original copies, that he took a statement regarding

17 the chain of custody of this document, what the employee stated to him

18 that, he -- on paragraph number 6, that he took a statement of another

19 former member of an Municipality Executive Board. On the 20th of October,

20 1999, et cetera. There are references all through this summary as to the

21 fact that Mr. O'Donnell had taken statements from AID and other personnel

22 in Bosnia and that he would testify to the taking of those statements.

23 That is what Mr. O'Donnell came here and did.

24 At no point until Mr. O'Donnell was midway through his

25 testimony did the Defence ever approach the Prosecution and ask for a copy

1 or access to those chain of custody statements. And I can tell you if

2 they had, that issue would of course have come before the Chamber because

3 we would have asked, as we did, to redact the vast, vast, majority of that

4 statement which has -- of those chain of custody statements which have

5 nothing to do with the specific document because any one chain of custody

6 statement -- I'll call it in shorthand like that -- could cover up to 56

7 documents, for example, which were all seized in one operation.

8 So for Ms. Baen to suggest, again, that we are trying to not

9 disclose documents, that we were trying to hijack and ambush the Defence

10 is an extraordinary misrepresentation of the facts, given that this

11 document has been in dispute since September the 11th, when it was the

12 first time the Defence made any indication to the Prosecution that they

13 would challenge the document, notwithstanding many, many steps prior to

14 this trial commencing. And finally in that, we have had many discussions

15 with the Defence since September, the 11th, and at no stage did that ask

16 to see the chain of custody documents or anything like that. So the

17 reason I have interrupted Ms. Baen is because I really don't think that

18 misrepresentation she is making should go on the record any further.

19 MS. BAEN: I think we're getting a little excited here. I would

20 never accuse any of these three Prosecutors --

21 JUDGE MUMBA: No. Ms. Baen, can you just go ahead with your

22 submissions.

23 MS. BAEN: I'm trying Your Honour. I'm trying Your Honour. First

24 of all, we did request the chain of custody information, and Judge Singh

25 ordered that we get -- when this issue came up on the first day when

1 Dr. Donia was testifying that we be given all the information surrounding

2 the seizure of this document. That was an order from the Bench. Now, we

3 were given this summary from Mr. O'Donnell. It mentioned that he had

4 taken statements but it didn't mention how many and from whom. So what

5 happened was we got a couple of statements ahead of time before the

6 hearing from the Prosecution. I would never accuse these Prosecutors of

7 sitting on evidence. If I thought they'd been sitting on evidence and not

8 disclosing it, I'd be asking for sanctions right now. But I happen to

9 respect and trust these Prosecutors. I think it's just a problem they

10 inherent to the case -- there's a lot of documents. There's been a lot --

11 there's just a lot of paper. So what I'm saying is in the middle of the

12 hearing we find out about several witnesses that we did not know about by

13 name or by information. The whole bottom line is, all we want to -- all

14 we want to know is the circumstances surrounding the seizure of this

15 document.

16 To make matters more urgent about getting the information in front

17 of the Trial Chamber and to the world on this A/B document is in

18 November -- apparently there was a letter -- November/December there is

19 this letter which is now an exhibit in this trial, D24/1 where the alleged

20 authors of this document tell the OTP that this document --

21 THE INTERPRETER: Ms. Baen, please slow down. Please.

22 MS. BAEN: I'm sorry. I apologise.

23 JUDGE MUMBA: Could you speak slowly for the interpreters.

24 MS. BAEN: I apologise.

25 That this A/B document is a forgery. The whole issue before the

1 Trial Chamber right now is admissibility. I think the OTP and the Defence

2 can agree on that issue. The practice of the Tribunal because these are

3 complicated cases, there's a lot of evidence and a lot of paper and a lot

4 of work to do, is to be lenient on admissibility of evidence, that for the

5 most part it should come in if it has any relevance. It has to have

6 some reliability. That's -- I mean, we would be here for decades if we

7 fought every document like this.

8 JUDGE MUMBA: No. Ms. Baen, the point is the Prosecution have

9 stated their position

10 MS. BAEN: And I'm stating my position, Your Honour. Our position

11 is these documents are not admissible unless the Prosecution shows that

12 they're reliable. How more unreliable can a document be when the author

13 of the document says, "We didn't write this. This was a forgery. This

14 may -- this is propaganda." What should happen is the Trial Chamber so

15 that the whole world and everyone watching can hear all the information

16 regarding this document, those witnesses should come here and testify

17 about the seizure of the document. That's all we're asking. What is the

18 problem? What are they afraid of. It's not going to take that much time.

19 JUDGE WILLIAMS: If I could just interrupt. Just as a question of

20 clarity, you keep saying that these witnesses should come. Now, I think

21 this is one of the -- the main points of this afternoon's hearing. The

22 Prosecution is quite clearly saying Mr. O'Donnell was our witness, he

23 mentioned, as Ms. Reidy has just said, paragraph 4, paragraph 6, he

24 testified that he took a statement from somebody at the Agency for

25 Investigation and Documentation of Bosnia-Herzegovina. He also took a

1 statement from a former member of the Municipality Executive Board. So he

2 mentioned these people, but these people and whoever else that you are

3 referring to, you know, were not classified as witnesses for the

4 Prosecution. So I think the point that we have here is if you want these

5 people for the Defence to be brought here, they -- they would be Defence

6 witnesses. At least that's the way I'm seeing things here.

7 MS. BAEN: Normally what -- my understanding and from reading all

8 the case law in this Tribunal, normally when you're talking about seizure

9 of documents, pursuant to a search warrant or not -- especially the

10 biggest search issue case, I guess, in this Tribunal is the Celebici case.

11 You bring the witnesses to testify regarding the seizure of the document.

12 Especially -- I mean, because the whole issue is reliability. And the

13 circumstances under which the document was seized go to the reliability of

14 the document. It matters where it came from, who found it. Normally

15 those witnesses in those witness statements would have been listed as

16 witnesses by the Prosecution. For some reason they weren't. They just

17 listed their investigator -- the investigator testified. We've got his

18 transcript. He has no information -- he gave the Trial Chamber no

19 information regarding the seizure of the document. He didn't know if

20 there was a search warrant. He didn't know exactly -- he didn't know

21 where it was found, he didn't know who it was turned over by. So -- I'm

22 not trying to do their job for them, but I'm just saying quite frankly

23 right now we object to the admissibility of this and I thought as a truth

24 seeking and fact finding body instead of making us jump through hoops

25 and -- look, I'll be real honest with you. I'm afraid this Trial Chamber

1 is going to bring this -- let this document in --

2 THE INTERPRETER: Could the counsel slow down, please.

3 MS. BAEN: I'm afraid this Trial Chamber is going to let this

4 document in.

5 JUDGE MUMBA: Can you slow down?

6 MS. BAEN: I'll try, Your Honour.

7 JUDGE MUMBA: No, no. What the Trial Chamber does is a matter for

8 submission for you. So you just make submissions. If you think the

9 Prosecution evidence is not sufficient, if you want to call your

10 witnesses, just tell the Trial Chamber what you want to do about it.

11 That's all.

12 MS. BAEN: It's not admissible if they haven't proven it's

13 reliable. So we are still maintaining our objection. We are no

14 information regarding the seizure of the document.

15 The remedy also for getting late disclosure of this exculpatory

16 information -- the letter that I talked about, D24/1, we did not get this

17 letter from the Prosecutors until 30 minutes before the conclusion of our

18 hearing on the A/B document. Again, I'm not pointing fingers. I'm not

19 saying they were holding evidence. In fact, I believe that Ms. Reidy just

20 received that document that day from another member from the OTP. I'm not

21 pointing fingers. All I'm saying is in order to be fair with this

22 document, if the Trial Chamber is thinking about admitting this document

23 which we think is not admissible, the fair thing to do is have all the

24 witnesses come testify regarding this document. And when I say -- when

25 I've said before that this is a very important document, the reason why I

1 say it's important is, this is what they're building their whole case

2 around. And if the alleged author, again, says that this is a forgery,

3 the Trial Chamber should want to get to the bottom of this document and

4 find out what the truth is. And now, as far as -- and Judge Williams,

5 bringing this up about them being our witnesses, they should have been on

6 the Prosecution's witness list. So that -- that's -- maybe I'm trying to

7 do their job for them. But I just felt like the Trial Chamber wanted to

8 hear all this information. There's going to be a fight, and all the

9 upcoming fights on this A/B document, and I felt like it would be most

10 appropriate to hear from all these witnesses regarding this -- this

11 document.

12 Furthermore, since there has been no proof of authenticity, the

13 Trial Chamber has the power under Rule 89 -- I think it's (E) to -- on its

14 own request information regarding authenticity if there's suspect

15 information or unreliable information -- or there's a showing of

16 unreliability about a document. So that's basically it, that we're

17 objecting to the admissibility because it is not been shown to be

18 reliable. And we are requesting that these witnesses come testify to be

19 cross-examined, since their statements were given to the Trial Chamber in

20 consideration of the admissibility of this document.

21 [Trial Chamber confers]

22 JUDGE MUMBA: Yes. The Trial Chamber I think will adjourn for 20

23 minutes before making our ruling.

24 --- Break taken at 2.42 p.m.

25 --- On resuming at 3.03 p.m.

1 JUDGE MUMBA: The Trial Chamber finds that there is sufficient

2 evidence to allow the document Variant A and B to be admitted into

3 evidence, as it appears to be relevant to the issues before the Trial

4 Chamber. The weight to be attached to it will be considered as part of

5 the whole evidence at the conclusion of the trial.

6 The Defence may, if they so wish, call evidence during the Defence

7 case and thereafter make submissions on the weight to be attached to the

8 document. At this stage, it is no longer necessary for any more

9 submissions to be made. The Trial Chamber will issue its written decision

10 at a later stage.

11 We understand there are no further proceedings, as there are no

12 more witnesses, unless --

13 MR. DI FAZIO: I do apologise, Your Honours.

14 JUDGE MUMBA: Yes, Mr. Di Fazio.

15 MR. DI FAZIO: I've just got three minor matters I want to attend

16 to.

17 JUDGE MUMBA: It may be -- let me hear Ms. Baen.

18 MS. BAEN: I just want to get back to the Trial Chamber about this

19 issue of Esad Dagovic yesterday. You said you wanted our answer. And the

20 Defence does wish to invoke our right to him them come back for

21 cross-examination for the limited purpose you mentioned.

22 JUDGE MUMBA: Yes, all right. It will be up to the Prosecution to

23 inform the witness and decide when he should be called. But the Trial

24 Chamber would prefer that he be called as soon as possible.

25 MR. DI FAZIO: Yes. I'll speak to those who organise such matters

1 and attempt to bring that about.

2 JUDGE MUMBA: Yes.

3 MR. DI FAZIO: Could I just raise three --

4 JUDGE MUMBA: Yes.

5 MR. DI FAZIO: Three other matters. Firstly, you recall during

6 the evidence of the last witness, I put to him a document that was

7 untranslated. It was a -- it was a list of exchanged persons. I now have

8 the translation, and it should become, I submit, P52 ter -- P52 ter.

9 Currently P52 ter is marked for identification. I'd now seek its full

10 admission, and I can provide the Chamber with the official translation of

11 that document.

12 JUDGE MUMBA: The Defence already have the copies.

13 MR. DI FAZIO: Yes, they've received their copies. There's no

14 question about that.

15 So I'd ask that they be given -- the documents be given their full

16 proper identification -- exhibit --

17 JUDGE MUMBA: They'll be admitted into evidence as exhibits.

18 That's what the Prosecution is seeking.

19 MR. DI FAZIO: Yes.

20 JUDGE MUMBA: Any objection from the Defence?

21 MR. KRGOVIC: We have no objection.

22 JUDGE MUMBA: Thank you. Can we have the formal number for the

23 documents now as exhibits.

24 THE REGISTRAR: It will be P52 ter for the B/C/S version, Your

25 Honours, and P52 for the English translation. Thank you.

1 MR. DI FAZIO: The -- I'm sorry.

2 JUDGE MUMBA: Yes Mr. Di Fazio.

3 MR. DI FAZIO: The other two issues arise out of yesterday's

4 discussion.

5 JUDGE MUMBA: Yes.

6 MR. DI FAZIO: I propose that the witnesses who come here and

7 give evidence pursuant to Rule 92 bis also give evidence orally in respect

8 of the documentation in the case, the documentary exhibits.

9 JUDGE MUMBA: Yes. Yes.

10 MR. DI FAZIO: It would be burdensome -- and I do mean very

11 burdensome for myself and my colleagues and investigators to carry large

12 box files down to Bosnia and so on and get instructions on all of those

13 matters when we could do it so much more simply here.

14 JUDGE MUMBA: Yes. That is understood, yes.

15 MR. DI FAZIO: That's so -- beyond giving oral evidence about the

16 defendants, they'll also give oral evidence, I trust, on the documents.

17 JUDGE MUMBA: On the documents --

18 MR. DI FAZIO: And Prosecution exhibits and on so.

19 JUDGE MUMBA: Yes.

20 MR. DI FAZIO: The third hat matter arises also from yesterday's

21 discussion. One of the witnesses was a gentlemen named Hasan Subasic.

22 He's the 14th listed witness there in part of group 3 of that document

23 that I handed to you yesterday. Yesterday the Chamber indicated that

24 those witnesses ought giving evidence pursuant to Rule 92 bis. He lives

25 in the United States. It's going to be very difficult for us to get

1 to him, proof him, give a statement prepared in the form required for 92

2 bis.

3 JUDGE MUMBA: All right. So for that one --

4 MR. DI FAZIO: We'd like to do him in the normal fashion.

5 JUDGE MUMBA: Yes. That will be allowed, since it will be too

6 costly to pursue Rule 92 bis for him.

7 MR. DI FAZIO: That's all that I wanted to raise, if Your Honours

8 please.

9 JUDGE MUMBA: Any matters from the Defence?

10 MS. BAEN: No, Your Honour.

11 JUDGE MUMBA: The court will adjourn and the proceedings will

12 continue on Monday at 14.15 hours.

13 --- Whereupon the hearing adjourned

14 at 3.09 p.m., to be reconvened on Monday,

15 the 6th day of May, 2002, at 2.15 p.m.

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