Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1766

1 Thursday, 18 April 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.02 a.m.

5 JUDGE SCHOMBURG: Good morning, everybody. We should continue

6 with the hearing of expert witness Dr. Donia.

7 MR. CAYLEY: Thank you, Mr. President.

8 [The witness entered court]

9 JUDGE SCHOMBURG: Good morning, Dr. Donia.

10 THE WITNESS: Good morning.

11 MR. CAYLEY: May I proceed, Mr. President? Thank you.

12 WITNESS: ROBERT DONIA [Resumed]

13 Examined by Mr. Cayley: [Continued]

14 Q. Dr. Donia, we only have 30 minutes, so we are going to have to

15 rattle through this. The first thing I'd like you to do is if you could

16 turn to Prosecutor's Exhibit 41, which is the last exhibit in the bundle

17 of documents.

18 A. Yes.

19 MR. CAYLEY: Your Honours, do you have that document in front of

20 you?

21 Q. What is that document, Dr. Donia?

22 A. This is the decision of the assembly of the Serbian people of

23 Prijedor municipality to join the Autonomous Region of the Bosnian

24 Krajina.

25 Q. And just to be absolutely specific, this decision is for the

Page 1767

1 Serbian territories in the Prijedor municipality to join?

2 A. Yes. Undefined but nevertheless Serbian territories of the

3 Prijedor municipality joined by this decision to the ARK.

4 Q. Do we know whether the non-Serb delegates to the Municipal

5 Assembly in Prijedor participated in making this decision?

6 A. Well, they were not members of the Serbian assembly, so it would

7 be inconceivable that they would have participated.

8 Q. So this was a unilateral decision of the Serbian assembly to join

9 the Autonomous Region of Krajina?

10 A. Yes.

11 Q. If we could now go back, please, to Prosecutor's Exhibit 12, which

12 are the Prijedor SDS minutes, and if you could go, please, to the meeting

13 of the 31st of January of 1992, which takes place 14 days after the

14 proclamation or the decision on Serbian territories joining the Autonomous

15 Region of Bosanska Krajina. Could you highlight the important elements of

16 this meeting, please, Dr. Donia.

17 A. Yes. This document is entitled, "Minutes of the SDS municipal

18 board meeting 31 January 1992." It was presided over by party president

19 Simo Miskovic. It is the first of two meetings in which the reports are

20 given about Bosnian Serb meetings outside of Prijedor. In this case, a

21 report by President Miskovic, halfway down the page, one sees this entry:

22 Miskovic gave a briefing on the session of the Bosnian Krajina -- Bosanska

23 Krajina assembly, and then lists several items: Delegation in Belgrade

24 visiting Milosevic three options on the fate of the Serbian people were

25 stated, and skipping to the Statute of Krajina was adopted at the last

Page 1768

1 session of the Bosanska Krajina assembly.

2 At the bottom of this page, under Srdic, "the most important thing

3 to be done in Prijedor is to add Prijedor to Bosnian Krajina."

4 This suggests that the decision of the Serbian assembly to join

5 the Bosnian Krajina was not sufficient in the minds of the party -- one of

6 the party leaders, anyway, that the entire Prijedor municipality needed to

7 come under the jurisdiction of the Bosnian Krajina.

8 On the following page, Mr. Timarac, third line down:

9 "For us, the month of February is crucial if the referendum is

10 held, the transformation is to begin immediately."

11 The referendum here is the scheduled referendum of 29 March -- 29

12 February and 1 March regarding the independence of Bosnia and Herzegovina,

13 which by this time was scheduled, and the transformation, as will

14 subsequently be seen in these documents, comes to refer to a

15 transformation of who holds the power in Prijedor municipality.

16 Q. If you have nothing further to add on that set of minutes,

17 Dr. Donia, if we could now go to the meeting of the 17th of February of

18 1992, which Your Honours will find on page 457, the ERN number is at the

19 bottom of the page.

20 A. This is a meeting of the SDS Prijedor municipal board of 17

21 February 1992. The agenda item, sole agenda item, is the briefing on the

22 meeting of the Main Board and Serbian Assembly. And in the next line one

23 sees Simo Miskovic, the president of the SDS board, gave a briefing on the

24 meeting held in Sarajevo. Mr. Karadzic, president of the SDS BH was the

25 main speaker. It was an act of secession of the BH on the part of the

Page 1769

1 SDA. He's referring here to the impending referendum on independence.

2 "In that respect, we are forced to create national communities on ethnic

3 territories."

4 Down two paragraphs:

5 "In the Republic, there will be a maximum strengthening of

6 authority in the regions economically and politically, and the activities

7 in the region of Bosnian Krajina are geared towards that. After the

8 situation in the country calmed down and the preconditions are there, the

9 will of the people will bring about the unification of all Serb

10 territories and communities."

11 So this positions the Bosnian Krajina as a transitional organ of

12 government which would ultimately be dissolved, as in fact it was in

13 September of 1992.

14 Continuing with this summary of the report of Dr. Karadzic's

15 remarks, down three sentences:

16 "Serbs shall not participate in any way in the referendum

17 conducted by the SDA. In view of that, it is necessary to activate the

18 second stage of the position stated by the SDS BH Main Board."

19 This refers to the second stage of the instructions of 19 December

20 1991.

21 "It is absolutely necessary to cover the territory and the

22 population, Serbs, by activists and representatives. Each should secure

23 his own area."

24 Q. Dr. Donia, a couple of questions. You stated that the stated

25 position was that the government of the Bosnian Krajina would be a

Page 1770

1 transitional organ of government. Transitional to what? What eventually

2 was envisaged would happen?

3 A. A unified Serbian state.

4 Q. Now, when they are stating, a few lines down, that Serbs shall not

5 in any way participate in the referendum conducted by the SDA, to which

6 referendum are they referring?

7 A. This refers to the referendum on independence of Bosnia and

8 Herzegovina, which was suggested by the Badinter commission of the

9 European community and ordered by the Presidency of Bosnia and Herzegovina

10 in January of 1992.

11 Q. So in essence, Serbs are being instructed not to participate in a

12 democratic referendum, whether they like it or not; is that the position?

13 A. They are being instructed not to participate, yes.

14 Q. Please go on.

15 A. In the continuation of this summary on page 458, five lines down

16 there is a discussion of the demographic forecast attributed to Dr.

17 Karadzic. "Around 150.000 Serbs would be outside our reach, which can be

18 handled if we have in mind 1.5 million Serbs. There would be 10 per cent

19 Muslims here. It is necessary for us to establish control in our

20 territories."

21 Then the bottom of the page, Mr. Srdic:

22 "An important argument for our transformation is the plebiscite we

23 conducted."

24 This refers to the Serbian plebiscite of 9, 10 November 1991:

25 "The creation of states brings about mass emigration and

Page 1771

1 resettlement, and the exchange of territories, which is imminent. This

2 long-term process is still better than war."

3 Q. So at this stage they are envisaging that the creation of their

4 state will involve massive population resettlement; is that right?

5 A. Yes.

6 Q. Please go ahead.

7 A. My next observations from this document are from page 460, and

8 they pertain to a meeting that was held the same day of the Prijedor

9 Municipal Assembly, which at this point was still engaged in the deadlock

10 over appointments to governmental positions. And on this page, Miskovic,

11 one-third of the way down the page, makes the statement:

12 "Regarding this SDA proposal for a division to have an extended

13 coordinating body and analyse what has been proposed."

14 Now, that refers to a rather complex proposal presented by the

15 Prijedor SDA at this Prijedor assembly meeting, which entailed dividing

16 portfolios in five different municipalities around Prijedor and Prijedor

17 itself. And then two lines down, two speakers down, Pilipovic:

18 "Our position presented before the assembly today is that the

19 participation of Serbs in the government is disproportional. He explained

20 in detail why the assembly was not working well."

21 Now, this -- these two references to this SDA proposal indicate

22 that the SDS is going to respond to this proposal, create a coordinating

23 body, and then engage in discussions with SDA representatives, and that in

24 fact did subsequently take place.

25 Q. If we could move to the next exhibit, which is Prosecutor's

Page 1772

1 Exhibit 48.

2 MR. CAYLEY: Your Honour, this is a -- what's called a rough

3 English translation. It's not an official translation, but we have put it

4 in for official translation, and as soon as we get it back, we will submit

5 it to the Court. But it will, I think, assist Your Honours for the moment

6 to see what this document says in English.

7 Q. Dr. Donia, do you know who was appointed to coordinate with the

8 SDA from amongst SDS officials?

9 A. In the meeting of 27 December 1991, the two persons charged with

10 creating the committee for inter-party relations were Mr. Miskovic and

11 Dr. Stakic.

12 Q. Thank you. Now, this document are minutes of a meeting which took

13 place on the 13th of April of 1992; is that right?

14 A. Yes.

15 Q. Can you highlight for the Judges, please, the important parts, the

16 important elements of this meeting.

17 A. This document is entitled, "Prijedor SDS municipal board

18 coordination body," and the names here are then followed by the minutes of

19 a meeting held on 13 April 1992, in a style that is similar to those from

20 1991 in the book for 1991. The subject is preparation for the meeting

21 with the SDA executive board in relation to the solution of the Prijedor

22 problem. Mr. Babic states:

23 "Employ tactics while speaking at the meeting. Be cool-headed,

24 even disinterested in the division of the municipality. The position of

25 our negotiators is defined by the Serbian Bosnia-Herzegovina," BH.

Page 1773

1 Then Mr. Pilipovic states:

2 "Insist on completing the unification of the territory of the

3 Krajina state. Do everything in order for the entire municipality of

4 Prijedor to join Bosnian Krajina. Possibly give local self-government to

5 ethnic units, former municipalities."

6 So here, in determining the negotiating position at the meeting

7 with the SDA, the party leaders are suggesting this complete inclusion of

8 Prijedor into the Bosnian Krajina as their ultimate objective, or one of

9 the ultimate objectives of this negotiation.

10 Down one speaker, Drljaca:

11 "The president should run the show, and only the first option

12 should be advocated."

13 Kos at the bottom of this page says, "the existence of three

14 options provided that the Serbian municipality of Prijedor establishes its

15 administration organs."

16 I note there's no break here in the original B/C/S, but there is

17 in the English translation to the next page, where Mr. Savanovic says:

18 "Aim at implementing Krajina laws in Prijedor municipality as

19 well."

20 And Mr. Miskovic says:

21 "Take the meeting as a way of testing the grounds. Go for option

22 number 1. The whole of Prijedor to join the Autonomous Region of Bosnian

23 Krajina. Meanwhile, urgently establish administrative organs of the

24 Serbian municipality of Prijedor."

25 Then onto the next page of the translation. This is the decisions

Page 1774

1 or conclusions of this meeting. Just highlight three of them. Number 2:

2 "Miskovic and two delegates in charge of solving proposals by

3 SUP, that is, police, secretariat of the interior, the public audit

4 service, the bank, the court."

5 Three of these four items, that is, the police, the public audit

6 service and the court, were, of course, those appointments which

7 Dr. Stakic had accused the SDA of usurping a few months earlier. Simo

8 Drljaca and Radovan Krejic to be appointed coordinators. Point 3, "in

9 charge of all preparations are a Serbian assembly, Stakic, Savanovic and

10 Baltic." Number 5, "information committee to issue a statement providing

11 information on the occurrence." This occurrence was in fact the

12 appointment of a government for the Serbian municipality of Prijedor,

13 which was issued on the 17th of April and reported on the 18th of April

14 1992 in the Banja Luka newspaper Glas.

15 Q. Who was put in charge of providing that information, issuing that

16 statement?

17 A. The issuance of the statement was charged to Dr. Stakic.

18 Q. If we could now move to the next document, which is the meeting of

19 the 23rd of April, which is Exhibit 47.

20 MR. CAYLEY: Does the Court have ... I think you have Exhibit 47

21 already. If it could be provided to the witness and the Judges.

22 Your Honour, on that last exhibit which I referred to as 48, I

23 made a mistake. It is in fact Prosecutor's Exhibit 49.

24 Q. Dr. Donia, this is a meeting of the 23rd of April of 1992, is it

25 not?

Page 1775

1 A. Yes.

2 Q. Could you highlight for the Judges the important elements of this

3 meeting.

4 A. This Serbian Democratic Party of BH SDS municipal board

5 Prijedor --

6 MR. CAYLEY: Could you wait one moment. Your Honour, do you not

7 have this document?

8 JUDGE SCHOMBURG: No.

9 MR. CAYLEY: I'm sorry.

10 THE INTERPRETER: Would you put the document on the ELMO, please.

11 MR. CAYLEY: Could a copy of it be placed on the ELMO for the

12 interpreters.

13 Q. Dr. Donia, you could have my copy if --

14 A. I have it.

15 Q. You have a copy. Good. If you could read slowly, because the

16 interpreters don't have these last two documents, I think?

17 A. One-third of the way down the page is the agenda. Point 1:

18 "Exchange of views and an analysis of problems on the ground.

19 President S. Miskovic reported on the situation in the municipality and

20 talks with the SDA, which had been held in Sanski Most."

21 These then were the negotiations that had been discussed on the

22 13th of April and were now completed and result in this report by Mr.

23 Miskovic. The -- skipping down two paragraphs:

24 "After the discussion, the board adopted the following decisions.

25 Point 2. All units and staff in management posts shall be responsible and

Page 1776

1 subordinate to the Crisis Staff in this area. 3: To reinforce the Crisis

2 Staff according to specialty. 5: To immediately start working on the

3 takeover, the coordination with the JNA notwithstanding."

4 Point 6: "Put the point across that if Zeljaja (JNA) does not

5 declare that the JNA is indeed going to protect the Serbs, the SDS will

6 call upon all Serbian soldiers to leave the JNA and take all their

7 weapons."

8 So this meeting represents the decision of the SDS municipal board

9 to move forward with a takeover with or without the support of the JNA.

10 Q. And if, finally --

11 THE INTERPRETER: Microphone, please.

12 MR. CAYLEY:

13 Q. Finally, if we could at the minutes of the 9th of May of 1992,

14 which is Prosecutor's Exhibit SK46.

15 Dr. Donia, this is a precis of minutes of the SDS municipal board

16 meeting held on 9 May 1992; is that correct?

17 A. Yes.

18 Q. Could you highlight for the Judges the important elements of this

19 meeting, please.

20 A. The reports in this meeting indicate that a takeover has taken

21 place and that the expected progress and problems are being addressed.

22 The first report is from Slobodan Kuruzovic. After point 2 of his

23 presentation, he states:

24 "Go on with the talks, observing all the proprieties, but always

25 keep in mind the final goal. The idea is to achieve everything peacefully

Page 1777

1 and without destruction."

2 And then Milan Kovacevic --

3 Q. What is he referring to there, Dr. Donia, do you think?

4 A. Well, I think his statement indicates that this takeover would

5 ideally go on with no resistance from any local opposition. And insofar

6 as possible, facilitated by negotiations.

7 Milan Kovacevic then enumerates several points:

8 "Replacement of staff has been carried out with all SDA leaders

9 removed from the functions in the Municipal Assembly. The functioning of

10 government at the level of Krajina can now be felt. Instructions and

11 decisions are being forwarded from the top. Larger companies and

12 institutions have separated themselves from Sarajevo."

13 Skipping down 2:

14 "All measures, decisions, and conclusions must be verified by the

15 assembly."

16 And then to the next page, page 303 of this document, in the upper

17 right-hand corner is the ERN number. Two-thirds of the way down the page

18 Milomir Stakic:

19 "Here in the municipality of Prijedor, the Constitution of the

20 Serbian Republic of BH has been implemented since 30 April 1992, along

21 with those laws which are -- conform with the constitution."

22 Down to the next paragraph:

23 "The next two or three months, until the funds which are now being

24 established actually have available money, will be the most critical

25 period. Peace must be maintained at all costs, and the economy must be

Page 1778

1 revived."

2 And then final item of business, or two final items of business:

3 "A committee has been established to welcome the troops coming

4 back from the front lines."

5 This refers to the return of the Fifth Kozara Brigade from

6 Croatia. "It is chaired by Savanovic and has five members. Full

7 mobilisation is compulsory and all Serbs must respond to the call-up."

8 So this meeting indicates that a takeover has been put in place.

9 It has resulted in the beginning of financial flows to meet urgent needs

10 that the government of the Krajina is now beginning to administer -- have

11 an administrative impact on the region and that SDS leaders have been

12 removed from their positions in the Municipal Assembly.

13 Q. Dr. Donia, you state, "It had an administrative impact on the

14 region and SDS leaders have been removed from their positions in the

15 municipal assembly."

16 A. SDA. Excuse me. I erred and should have said, "SDA leaders were

17 removed."

18 Q. So in a sense, in effect, basically the Muslim leadership had been

19 removed from the Municipal Assembly?

20 A. That's Mr. Kovacevic's statement, yes.

21 MR. CAYLEY: Mr. President, I've now completed my

22 examination-in-chief. I've run two minutes over, but nevertheless, we are

23 now at a conclusion.

24 JUDGE SCHOMBURG: Thank you very much, Dr. Donia. My

25 understanding is that on Monday, 22 April, there will be a

Page 1779

1 cross-examination by the Defence.

2 MR. LUKIC: Your Honours, I think that we agreed with the

3 Prosecution that the cross of Dr. Donia would be on Wednesday, if I

4 understood it correctly.

5 MR. CAYLEY: I have to say, I wasn't a party to these

6 negotiations, but we're content with Wednesday.

7 JUDGE SCHOMBURG: Could you cross-check? What about the other

8 witnesses that we don't run into a problem there, because until now, my

9 understanding was that cross-examination should be the 22nd.

10 MR. KOUMJIAN: I have to admit that I was thinking -- both the

11 22nd and Wednesday ring a bell, so I probably have heard both. I'm a

12 little confused. As long as it fits with Dr. Donia's schedule, I think it

13 actually would be better for us to have it on Wednesday, because I think

14 the next witness, who is protected, I hope he can finish on Monday. I

15 don't think we're going to finish with him this week. So I'd rather him

16 finish on Monday.

17 JUDGE SCHOMBURG: Would that be convenient with you, Dr. Donia?

18 THE WITNESS: Yes, it will, Mr. President.

19 JUDGE SCHOMBURG: So then let's do it on Wednesday, 24. And I

20 would appreciate if we would have the possibility then also in short go

21 through the documents not yet translated, especially the excerpts from

22 newspapers, in order to find out which document is really relevant for the

23 case which has to be translated or not. I would ask the parties to be

24 prepared to give their own assessment, then on Wednesday, after the cross,

25 or possibly the re-examination of Dr. Donia.

Page 1780

1 MR. CAYLEY: Yes. Your Honour, your legal officer informed me

2 that you were going to raise this. The reason that they are all

3 incorporated within the bundle is because each of the exhibits represents

4 a footnote in the report, and we felt, for completeness, so that the

5 Defence is aware of all of the documents that Dr. Donia has referred to,

6 that they all be included in the file. I realise it does impact on

7 translation. All of these newspaper reports have to be translated. But

8 as I stand now, I think our position would be that they should all be

9 admitted into evidence, otherwise it's going to lead to a situation where

10 the report, which is evidence, is not complete, because it won't have all

11 of the documents which are footnoted in that report as exhibits. If we

12 can think of a better solution than that, I will try for the sake of the

13 translation department.

14 JUDGE SCHOMBURG: Thank you for this understanding, because we

15 always take into account -- we have limited resources, especially human

16 resources, and therefore we all have to show to a certain extent

17 self-restraint only to translate the real necessary documents and probably

18 we can help out for example by translating the one or other sentence here

19 in the courtroom and then we have it completed. So therefore, please be

20 prepared to do this exercise next Wednesday as well.

21 MR. CAYLEY: Or another possible solution, Your Honour, might be

22 to simply translate the relevant excerpt rather than the entire article,

23 if it's like five lines within the article.

24 JUDGE SCHOMBURG: But this should be indicated.

25 MR. CAYLEY: Yes.

Page 1781

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Page 1782

1 JUDGE SCHOMBURG: And as I said before, a possible solution could

2 be that it would be translated. Fortunately, we have on the Bench a Judge

3 understanding and reading this language, and I hope also the Defence

4 counsel can point out possibly when there is another line which should be

5 translated from their point of view, then we could proceed this way and we

6 have not to wait for the translations.

7 MR. CAYLEY: What I will do, then, Your Honour, is I will get

8 together with Dr. Donia, go through the newspaper articles, identify the

9 parts that need translation, highlight them, then meet with Defence

10 counsel, offer to them the parts that we propose should be translated. If

11 they want any additions to that, we can agree that at the time.

12 JUDGE SCHOMBURG: Is this fine with the Defence?

13 MR. OSTOJIC: Your Honour, with all due respect, no. I hesitate

14 to say that. I don't mind the procedure, but I don't necessarily want the

15 Office of the Prosecutor to meet with Dr. Donia and go over and further

16 prepare him. He is called as a witness. He's under oath. It's my

17 understanding the Rules state that he continues to be under oath until

18 Your Honour excuses him. So I'm a little uncomfortable with that aspect

19 of it. We reserved our right for cross-examination to try to highlight

20 what we believe, and respectfully to Dr. Donia, some inconsistencies in

21 how he interprets certain articles, so we hope to bring that out in our

22 cross. If they can assist us by giving us the documents and their

23 translation, then we'll compare it with what we think the actual the

24 actual translation is.

25 JUDGE SCHOMBURG: Couldn't it be a possible solution that you meet

Page 1783

1 together, both parties, with Dr. Donia and then both of you highlight the

2 parts you want really to have translated?

3 MR. OSTOJIC: That seems acceptable to me.

4 MR. CAYLEY: So if essentially we all three parties - the

5 witness, the Defence --

6 JUDGE SCHOMBURG: Right.

7 MR. CAYLEY: Yes, we can arrange that, Your Honour.

8 JUDGE SCHOMBURG: Thank you for your cooperation, and then

9 hopefully we'll meet again next Wednesday, Dr. Donia. Thank you for

10 today.

11 THE WITNESS: Thank you, Mr. President.

12 MR. CAYLEY: Your Honour, just one matter Defence counsel has

13 raised. I'm going to need to have contact with Dr. Donia in order to

14 organise this, in order to organise this meeting, and if you can just

15 state -- I know you said yesterday you come from a civil law system, where

16 this is not a problem. I think my learned friend comes from probably the

17 most extreme form of the common law system where this is a problem and

18 certainly in my system in England it's not a problem for counsel to have

19 contact with expert witnesses. But as I say, I will need to speak with

20 the witness in order to organise this meeting that is proposed should take

21 place.

22 [The witness withdrew]

23 JUDGE SCHOMBURG: As I said yesterday, I have no problem with

24 this, and I would appreciate if also the Defence takes the opportunity,

25 for example, in preparing the cross-examination to contact the expert

Page 1784

1 witness. From our point of view, there's no problem.

2 MR. OSTOJIC: I'm not sure if I should respond. We don't mind if

3 the Office of the Prosecutor schedules and does preliminary administrative

4 things with the expert witnesses. What we did earlier object to is the

5 Prosecutor's characterisation of how they want to meet, go over documents

6 and in my view spend more time than necessary but for scheduling and

7 administrative, we don't have an objection.

8 JUDGE SCHOMBURG: This is my understanding and I believe this is

9 really the solution that when it comes to the question of the relevance of

10 documents, what has to be translated, please contact and have a meeting

11 together, both parties, with Dr. Donia.

12 MR. CAYLEY: I will organise that, Your Honour. Thank you.

13 JUDGE SCHOMBURG: Thank you. The Office of the Prosecutor is

14 prepared now to discuss issues of the deposition witnesses?

15 MR. KOUMJIAN: Yes. Yes, Your Honour.

16 JUDGE SCHOMBURG: Then let's proceed. As it was said already the

17 last days, we should stick with that, what has been said in the past. You

18 made your request, and the request is, of course, based on a former

19 meeting earlier this year of the parties under Rule 65 ter (i), and it was

20 our understanding that in both cases, Dr. Stakic and Momir Talic separate

21 decisions should be taken depending on the relevance to each case. The

22 Judges in this case have already decided that it is necessary to hear for

23 in this case viva voce, or better, live, Witness 1, 2, 6, 8, and 9.

24 Witness 8 on the list is already summoned to appear as a live witness in

25 the courtroom, and what we have to discuss are the remaining witnesses,

Page 1785

1 and here I would like to hear some comments from the side of the Office of

2 the Prosecutor first.

3 MR. KOUMJIAN: First, I think everyone understands our position,

4 but if I could just restate it to be clear. We filed the motion for

5 deposition before both Chambers. In order to avoid the witnesses

6 testifying twice in both cases, we were not proposing that these witnesses

7 be 92 bis or submitted on a transcript. We always anticipated that they

8 would testify live, with cross-examination. The only issue would be

9 whether it was before a judicial officer, which we pointed out could be a

10 Judge also, or whether it would be before the entire Chambers. And I

11 understand Your Honour's rulings on these witnesses.

12 First to clarify that if either Chamber would deny that motion, we

13 would not be interested, of course, in proceeding by way of deposition,

14 because the point was to have the witness testify only once before on both

15 cases. And so assuming that the Courts are not going to grant the

16 deposition on both cases, although we did not file a motion for 92 bis,

17 taking advantage of, appreciating Your Honour's indications, we would

18 indicate that Witness 5 and 10 we do believe would be appropriate for 92

19 bis, to have their testimony presented by way of 92 bis and we would offer

20 to do so. The other witnesses we feel should testify. We are maintaining

21 our motion regarding the videolink witnesses, that they either be taken by

22 way of deposition or by videolink, testify before the entire Trial

23 Chamber.

24 When I say Witnesses 5 and 10, I'm referring to the number on our

25 deposition motion. Actually, the Rule 65 numbers are 27 and 44.

Page 1786

1 JUDGE SCHOMBURG: Number 4 remains unclear, and there it was not

2 possible to come to an assessment in the Trial Chamber because until now

3 the references mentioned in the document, the so-called ICTY statements,

4 were not included in this motion and they are not included in the exhibits

5 disclosed until now.

6 MR. KOUMJIAN: Well, we are hoping to call that witness live, and

7 in fact to schedule that witness to replace the one who is unable to come

8 -- coming up, so we're trying to arrange for that witness to be here, if

9 not next week, then the week after.

10 JUDGE SCHOMBURG: May I hear the opinion of the Defence as regards

11 Witness 5 and 10, and videolink as regards Witnesses 3 and 7, where there

12 is a clear intention of -- I can already say now - of the Trial Chamber to

13 hear both witnesses separately by videolink, or, if you regard it

14 necessary, to try to hear these witnesses live. But please give your

15 comments on the five remaining witnesses.

16 MR. LUKIC: Your Honours, I would first address the issue with the

17 witnesses who would testify by the means of the videolink. I think that

18 it's pointless and it's not too hard for the witnesses to go to the SFOR

19 base in Banja Luka. It's probably a few kilometres from their home. So I

20 don't think it's necessary to hold actually two trials to have those

21 witnesses to travel two or three kilometres. So we absolutely require

22 those witnesses to testify by the videolink in front of both Chambers.

23 JUDGE SCHOMBURG: Can this be agreed by the OTP?

24 MR. KOUMJIAN: Yes, and we appreciate especially the indication in

25 front of both Chambers, if that can be arranged.

Page 1787

1 JUDGE SCHOMBURG: But separately, it was your understanding;

2 right?

3 MR. KOUMJIAN: Well, do two separate examinations. Perhaps we can

4 talk about this later, but yes --

5 JUDGE SCHOMBURG: I think we have to come to a conclusion in order

6 to know the number of witnesses, how they shall be presented, and so on,

7 and this should be done, as indicated beforehand, today, and therefore, I

8 had discussed this point with technicians, security, and the witness

9 section of the Tribunal, and I heard this would not cause special problems

10 with regard also to these two witnesses, and therefore really it should be

11 done separately, two separate videolink hearings of both witnesses. Is

12 that agreed?

13 MR. KOUMJIAN: It's agreed.

14 JUDGE SCHOMBURG: Then we learn already Witness 4 would appear

15 live in courtroom. Then what about Witness 5? The suggestion was to hear

16 this witness under Rule 92 bis, and this indeed was a provisional opinion

17 of the Trial Chamber as well, because it's more or less a repetition of

18 what can be said and probably will be said by other witnesses. Would you

19 agree?

20 MR. LUKIC: If Your Honours think that it's acceptable, we agree,

21 only we'll see if we can get the chance to cross-examine those witnesses,

22 if necessary.

23 JUDGE SCHOMBURG: Yes and no. I think really the parties should

24 look into the merits and what will be expected by these witnesses

25 beforehand, because we can't afford first to proceed in a way expecting to

Page 1788

1 hear a witness under Rule 92 bis and then later on the question of

2 cross-examination, because there can't be any kind of surprise in the

3 future. You know beforehand what are the statements given until now, and

4 on this basis it can be decided. Of course, we have to make use of Rule

5 92 bis more than beforehand, first of all to avoid repetitions. So would

6 you agree Witness 5 to be introduced under Rule 92 bis?

7 MR. LUKIC: I'm sorry, but I don't agree, Your Honour. I would

8 like to cross-examine those witnesses.

9 JUDGE SCHOMBURG: Can you give special reasons why you need this

10 witness for cross-examination?

11 MR. LUKIC: Unfortunately, Your Honour, I don't have those

12 statements with me right now, so I cannot point out specifically why, but

13 I think that we will be able to answer this question tomorrow morning.

14 Probably we'll need not more than five minutes.

15 JUDGE SCHOMBURG: This should be the exception. If future, I

16 would really expect when I announce that we want to discuss points the

17 next day, then it should be the next day. Today I want to make an

18 exception, but in future we should all be prepared to discuss the issues

19 on the basis of the already disclosed material.

20 MR. LUKIC: Thank you, Your Honour.

21 JUDGE SCHOMBURG: And what about Witness 10? It was also the

22 suggestion, both by the Trial Chamber, of course provisionally, and the

23 Office of the Prosecutor, under 92 bis.

24 MR. LUKIC: I think that we have the same position, Your Honour,

25 regarding this witness as well.

Page 1789

1 JUDGE SCHOMBURG: Then we will return to Witness 5 and 10 tomorrow

2 with your final position.

3 MR. LUKIC: Thank you, Your Honour, and I apologise once again for

4 not being ready for today.

5 JUDGE SCHOMBURG: Thank you.

6 From the side of the Office of the Prosecutor?

7 MR. KOUMJIAN: Yes. Your Honour, I would ask the Court, if I

8 could, to please address -- ask Your Honours to hear a little more

9 regarding the reasons for the videolink of Witness 3. Your Honour

10 indicated we would have not one but two separate times. I would ask that

11 the Trial Chamber and in both cases to consider the possibility of

12 arranging it so that the witness only comes one time, and it seems to me

13 like it would be very technically feasible for one direct examination and

14 then to have the cross-examinations can be separate. This is a gentleman

15 with a severe heart problems and the reason we're asking for the videolink

16 is to avoid him having to testify two times. Neither side, neither

17 Defence would be prejudiced. Both Trial Chambers would have the

18 opportunity to ask questions of the witness. We would have two completely

19 separate cross-examinations. We would just like to arrange it so that he

20 testifies on one day, one direct examination, and then undergoes two

21 separate cross-examinations.

22 JUDGE SCHOMBURG: Of course, having read the health certificates,

23 I understand your point, but on the other hand, it's a probably important

24 witness, and we are more than hesitant to confuse both cases. There is a

25 different approach. We discuss individual criminal responsibility, and

Page 1790

1 therefore we would ask the Office of the Prosecutor to realise the best

2 possible solution. Probably it may be that you ask this witness only to

3 come once to this videolink station and then at the same day a hearing in

4 both cases. This is a question of the arrangement of the presentation of

5 the Prosecutor's case, and I'll leave it to you, but both Chambers agreed

6 already that there should -- it's mandatory to have a separate hearing.

7 So therefore, please be prepared to do so. And once again, to avoid any

8 kind of confusion, this is also true as regards Witness 6. No doubt that

9 Witness 6, at least in the case against Dr. Stakic, has to be heard

10 separately and live in courtroom.

11 So to finalise, it should not be forgotten that you please prepare

12 us with and give us the necessary ICTY statements not yet included in the

13 documents as regards Witness 4.

14 Is that correct?

15 MR. KOUMJIAN: It's understood.

16 JUDGE SCHOMBURG: Thank you. Then we can -- we'll only come back

17 in the beginning of the hearing of tomorrow to Witnesses 5 and 10, and

18 then there will be the final ruling.

19 May we now turn to the witness of today, and it still remains as

20 it is, protected witness number, not as it was indicated, 28, but 39;

21 right?

22 MR. KOUMJIAN: Yes.

23 JUDGE SCHOMBURG: And the protection?

24 MR. KOUMJIAN: It's closed session, Your Honour.

25 JUDGE SCHOMBURG: Closed session.

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8 --- Whereupon the hearing adjourned at 1.50 p.m.,

9 to be reconvened on Friday, the 19th day of

10 April, 2002, at 9.00 a.m.

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