International Criminal Tribunal for the Former Yugoslavia

Page 2544

1 Friday, 3 May 2002

2 [Open session]

3 [The accused entered court]

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

5 JUDGE SCHOMBURG: Good morning everybody. The case be called,

6 please.

7 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the

8 Prosecutor versus Milomir Stakic.

9 JUDGE SCHOMBURG: Thank you. And the appearances of today.

10 MR. KOUMJIAN: Nicholas Koumjian with Morten Bergsmo and case

11 manager Ruth Karper for the Prosecution. Thank you.

12 MR. LUKIC: Good morning, Your Honours. Branko Lukic and John

13 Ostojic this morning accompanied by the young Mr. Danilo Cirkovic our case

14 manager.

15 JUDGE SCHOMBURG: Thank you very much. Welcome aboard. The

16 Chamber has revisited the problem of what is the best way to protect the

17 witness and the idea was whether or not it is better to proceed in closed

18 session, instead of jumping in and out. We should have thought about this

19 yesterday, but we were not aware about this beforehand. I think it is

20 such a situation it is better to do the entire issue in closed session.

21 MR. BERGSMO: The Prosecution would concur with that.

22 MR. LUKIC: Defence concur, Your Honour

23 JUDGE SCHOMBURG: Then we proceed in closed session.

24 [Closed session]

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14 [The witness withdrew]

15 --- Recess taken at 3.40 p.m.

16 [Open session]

17 --- On resuming at 4.04 p.m.

18 JUDGE SCHOMBURG: We resume in open session and turn immediately

19 to the motion of the Office of the Prosecutor on 92 bis witnesses. And I

20 don't think it's necessary that the OTP once again comments why or why

21 not. We know it from the entire bundle of documents. But before we

22 decide, we indeed want to have the observations from the side of the

23 Defence, taking into account that we should call the witnesses only by

24 number, not by name, because we are in open session.

25 MR. OSTOJIC: Thank you, and good afternoon, Your Honours.

Page 2647

1 Without belabouring the point and addressing obviously what we

2 think is the inherent right for an accused to have the right of faith and

3 to cross-examine the witnesses brought before him, we believe that from

4 the list that was provided to us of the proposed 92 bis witnesses, we

5 would have no objection to the following 65 ter numbered witnesses.

6 However, before I list those out, I would like, just for the record, to

7 make the commentary, we were given an exhaustive amount of material,

8 naturally. Some of the material we have slight objections to because the

9 cross-examination of various witnesses were not provided. I think it may

10 have just been our perhaps our oversight or the oversight, but I am sure

11 they would want to provide the complete transcript of those witnesses

12 particularly where we do not have an objection to them.

13 Specifically I'm referencing Witness 59, but we could address that

14 at a later time. Also, to the extent that any of these documents or

15 witnesses, documents meaning their statements, are brought forth, and I

16 recognise, obviously respectfully, the position of the Court, reading 92

17 bis, Its essentially in my view, prohibited to allow these statements to come

18 in if they go towards the acts or conduct of the accused. Given that, if,

19 for some instance, either the Office of the Prosecution or the Defence

20 allows a statement to go in, and it does address that issue, we would

21 obviously take an exception to that and ask to be heard on that limited

22 basis. We think from our review that should not come up, but, again in an

23 attempt to preserve the rights of the accused, we have to mention that as

24 a provision.

25 JUDGE SCHOMBURG: This should be quite clear from the outset, that

Page 2648

1 every kind of ruling as regards this matter is, of course, and by nature

2 only a provisional one. There may be the one or other witness bringing us

3 to other conclusions and pointing out the need to hear witness, be it ex

4 officio or be it on the request of the one or the other party.

5 MR. OSTOJIC: Thank you, Your Honour. If I may proceed, the

6 following witnesses, we would not have an objection, keeping in mind the

7 comments that we've made. And thank you, judge, for those. They are 65

8 ter number 6.

9 JUDGE SCHOMBURG: Slowly, please.

10 MR. OSTOJIC: Number 15, Number 19, Number 20, Number 25, Number

11 32.

12 JUDGE SCHOMBURG: Wait a minute. 25, you said. And then?

13 MR. OSTOJIC: Number 32.

14 JUDGE SCHOMBURG: Sorry, I can't find --

15 MR. OSTOJIC: Page 2 of the witness list proposed by the OTP.

16 JUDGE SCHOMBURG: You're quite sure it's not 38?

17 MR. KOUMJIAN: I think there's a confusion there that's due to a

18 motion that's pending before the president. So that's all I can say in

19 open session.

20 JUDGE SCHOMBURG: So you want to make reference to the 65 ter

21 Number 38. Is this right?

22 MR. KOUMJIAN: No. Counsel stated the --

23 JUDGE SCHOMBURG: For a moment, we go in private session.

24 [Private session]

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21 [Open session]

22 MR. OSTOJIC: And finally, Number 78 on our list obviously states

23 that it's going to be a 92 bis, but I think that's behind us now because

24 Dr. Donia has already testified.

25 JUDGE SCHOMBURG: Thank you. Then, of course, we have to ask the

Page 2650

1 Office of the Prosecutor, and may we have the additional appearance,

2 please, just for the record.

3 MR. KOUMJIAN: For the record, Nicholas Koumjian, Ann Sutherland,

4 and case manager Ruth Karper.

5 We'll check on the issue of the transcript, but I believe it's

6 page 3219 of the transcript, and the cross-examination was apparently

7 quite short. You may check your copy to see if maybe you missed it.

8 But as for the rest of these, Your Honour, it's our position that

9 in the interests of the brevity of the trial and the efficiency of the

10 trial, most of these witnesses we could go through them one by one are

11 testifying to matters that other witnesses are coming in and testifying to

12 live. I have a particular comment about --

13 JUDGE SCHOMBURG: May we probably take the opportunity, go through

14 the rest of the -- the remaining witnesses. Immediately, I can say that

15 the Judges came to the conclusion that it's indispensable to hear witness

16 Number 1 live. Number 2 is now accepted by all the parties under 92 bis.

17 MR. KOUMJIAN: Just to be clear, Your Honour is referring to

18 Number 6 via 65 ter number?

19 JUDGE SCHOMBURG: It's the 6 of the 65 ter number, yeah, indeed.

20 Then there are no specific contributions on this witness,

21 protected witness 7, the Judges came to the conclusion that this is to be

22 regarded as admitted under 92 bis. As regards Number 15 of the 65 ter

23 list, I take it that it's accepted by the parties and the Judges that this

24 goes under 92 bis. As regards Number 19, the same is true as it was just

25 said with respect to Witness 15.

Page 2651

1 May we for a moment go into private session as regards Witness 20.

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18 [Open session]

19 JUDGE SCHOMBURG: As regards the objected number 38, the question

20 from the side of the Judges is, wouldn't it be possible for the Office of

21 the Prosecutor to withdraw the entire witness and the statements?

22 MR. KOUMJIAN: Your Honour, one of the exercises that we would do

23 at the end of Your Honours' ruling is to decide on each of the witnesses

24 the Court does not accept the 92 bis, whether or not it is worth the time

25 that would be involved and other considerations to bring that witness.

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Page 2654

1 This particular witness -- if I could just have one moment. One of the

2 reasons that we chose to ask to 92 bis this witness is because it's a

3 corroborative witness of Witness 28. So if Your Honours rule that it's

4 necessary for this witness to become live, we may decide that we have

5 enough evidence with Witness 28 not to proceed. Witness 28 was -- has

6 already testified -- excuse me. I'm sorry. It's pending, will testify.

7 JUDGE SCHOMBURG: So then for today, and I say once again, for

8 today, Witness 38 will be accepted under 92 bis, if there is no other

9 ruling in the future.

10 Witness 44, the request from the side of the Judges is, once

11 again, is it really necessary to include this witness and the statement?

12 We're not able to identify specific important points related to the

13 indictment before us.

14 MR. KOUMJIAN: Well, Your Honour, just one thing that stands out

15 for me, looking at the 65 ter summary of this witness is the witness's

16 ethnicity which is -- we don't have many witnesses of that ethnicity in

17 the case. But we -- again, I'd rather reserve that decision, one, to see

18 how it goes with the other witnesses. It's very possible that witnesses

19 will drop out that we're anticipating will be here. We've already had

20 some problems with that. So I don't want to drop these from our list and

21 then have to reapply to add them as witnesses. If the Court feels it is

22 necessary for the witness to come live, we'll evaluate whether it's

23 necessary to include them.

24 JUDGE SCHOMBURG: It's not a question of whether they come live,

25 it's only a question of whether to discuss this question under 92 bis. We

Page 2655

1 didn't see any acceptance by the Defence, if I see it correctly.

2 MR. KOUMJIAN: Perhaps we can get some indication of why the --

3 what the cross-examination could -- the Defence could hope to achieve

4 through that for this particular witness. If the Court rules they have to

5 come for cross-examination, we will make them available for

6 cross-examination or we'll decide to withdraw the witness, depending upon

7 how the -- how we evaluate the total case at that time.

8 MR. OSTOJIC: Your Honour, I'm not sure if my learned friend

9 was -- or perhaps I wasn't following you. It's not just necessarily a

10 question of whereby the cross-examination will go as it relates to the

11 items in the indictment, what we hope to -- or what I thought we were

12 going to hopefully accomplish with this is to for lack of a better term

13 weed out witnesses that are cumulative on nonessential paragraphs or

14 witnesses that perhaps are unnecessary for any element or aspect of the

15 indictment.

16 To advise the Court and the OTP of what our cross-examination

17 would be of this witness may take a little time. It may also put us at

18 slightly a disadvantage that we don't necessarily want to share at this

19 point. I don't think the Rule 92 bis asks for that from the Defence, but

20 certainly if we can point to certain areas where we feel the acts or

21 conduct are called in question as, by way of example, the witness number 1

22 was quite on its face obvious. This witness, in particular, we still

23 can't figure out why the Prosecutor wants to call him. So our cross would

24 be based on what the purpose is behind calling this witness.

25 MR. KOUMJIAN: Perhaps I could help a little bit on that, thanks

Page 2656

1 to the help of my colleague, Ms. Sutherland, who has a better knowledge of

2 this witness. Your Honour, if you look at the -- I don't know if Your

3 Honour and counsel have the 65 ter summary for this witness in front of

4 them, but the summary includes all of the statement -- excuse me, I guess

5 I'm reading from a different summary which is more detailed. But the

6 statement of this witness goes beyond the period of time of this

7 indictment. We would be willing and that's in the 65 ter summary, the

8 third paragraph. We would be willing to take that out because it's beyond

9 the period of the indictment. The reason this witness was selected was

10 because of the ethnicity. Most of our witnesses are Muslims, and we

11 wanted to show that this was a policy that applied to Croats also.

12 MR. OSTOJIC: Thus far, I don't believe in any of the questioning

13 by the Defence did, when the witnesses stated whom were present at the

14 various camps, did we ever cross them on the veracity of them having an

15 understanding that there may have been some or a few or however they may

16 have categorized the ethnicity of the Croatians. I don't know that --

17 we're not going to cross-examine her on whether she is truly of a certain

18 ethnic background. That's for sure.

19 JUDGE SCHOMBURG: Then we try to proceed under Rule 92 bis as

20 regards Witness 44, and we would ask the Office of the Prosecutor or the

21 Defence, if necessary, to come with other contributions, and, of course,

22 as I indicated already in the beginning, the Chamber is always open for

23 new views.

24 Until now, 92 bis.

25 The same is true with 49, accepted by the parties and by the

Page 2657

1 Judges under Rule 92 bis.

2 As regards 51, until now we did not have heard any special

3 objections regarding this witness. And therefore, until further order,

4 this witness statement is also admitted under 92 bis.

5 The same is true for Witness 52. With Witness 53, we once again

6 have a problem whether or not it would be better to withdraw this witness

7 at all. There are statements about events in 1993, beyond the time in the

8 indictment.

9 MR. KOUMJIAN: Yes, but if I could just point out to Your Honour

10 what it talks about, this particular witness, is obviously a very

11 organised effort to hide crimes that occurred. And this occurred -- my

12 understanding is during the time that Dr. Stakic was still in power. This

13 would be evidence of an attempt to hide a crime, and we think it's very,

14 very relevant to the indictment. Large equipment was used, and

15 explosives, and that's why we believe it's relevant.

16 JUDGE SCHOMBURG: So having heard this, this Witness 53 goes,

17 until further order, under 92 bis. And of course, it's for the Defence to

18 demonstrate the special relevance and necessity of cross-examination.

19 The same is true with Witness 54.

20 Witness 59, here, the, Judges evidently in line with the Defence,

21 want to hear this witness live. 59.

22 Witness 85 --

23 MR. KOUMJIAN: Could I just comment on this. We didn't rather

24 anticipate that ruling. This witness we're trying to schedule for June

25 the 26th, if that is convenient for the Court and counsel, because the

Page 2658

1 witness will also be testifying on the ARK case at approximately the same

2 time.

3 JUDGE SCHOMBURG: Then Witness 85, it was accepted by the Judges

4 and also the parties. And therefore, this witness goes under 92 bis.

5 And once again, notwithstanding other objections in the future by

6 the Defence, also Witness 86 goes under 92 bis.

7 I just learned that -- let's go just for a minute to be on the

8 safe side in private session.

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11 [Open session]

12 JUDGE SCHOMBURG: And there is just one document the registry may

13 correct me if I am wrong, to be admitted into evidence, or even two. One

14 was the document provided today by the Defence, D3. Any objections?

15 MR. KOUMJIAN: No, Your Honour.

16 JUDGE SCHOMBURG: But may it be called, please, the draft statute,

17 to be quite correct and on the safe side here.

18 And then finally, the receipt, if anybody could help me about the

19 number --

20 MR. KOUMJIAN: S12, I believe.

21 JUDGE SCHOMBURG: Right. S12. It was still objected. What is

22 your position, please?

23 MR. OSTOJIC: Yes, Your Honour, if you recall we did have an

24 objection to this document. In comparing it to other receipts that were

25 received from detainees at the Trnopolje camp, we noticed that other

Page 2660

1 receipts do not have the added language. If the Court recalls, under the

2 name of Pero Curguz, under his signature namely. It is difficult for us

3 to pass judgement whether that was particularly written by the individual on

4 the right or the individual on the left. The witness certainly didn't

5 testify that it was written by either. He did confirm the signature of

6 those two. But we have by way of an example another receipt, "Potvrda",

7 that I believe was given to us -- and I make this representation on the

8 representation made to me -- by the Office of the Prosecutor. So we have

9 a similar receipt for another detainee which doesn't have that

10 information. It's a very important document from the Defence standpoint.

11 And also, from an evidentiary standpoint. And I'm sure that the Court

12 would want to protect that issue as well. So we must continue to insist

13 on objecting to this document.

14 JUDGE SCHOMBURG: Honestly, I don't understand you. It should be

15 your point that this should be admitted into evidence that you can

16 demonstrate as you want another document opposed to this. But please

17 understand, under our rules, especially the guidelines on authenticity,

18 this document is admitted into evidence under 12B. There were three

19 objections, and...

20 [Trial Chamber and legal officer confer]

21 JUDGE SCHOMBURG: It was on S3 through S6 -- S4 to S6. They were

22 admitted -- offered the 18th of April, but the Defence reserved the right

23 to object to the translation. Any comments from the Defence on this? S4

24 to S6, 18th of April.

25 MR. OSTOJIC: We don't believe that we've seen the translation of

Page 2661

1 those, Your Honour. So we're not prepared to address that issue with the

2 Court at this time.

3 JUDGE SCHOMBURG: We come back to this on Monday in the beginning.

4 MR. KOUMJIAN: I think there's a little confusion, because I think

5 those were marked 4A, 4B, the translations provided.

6 JUDGE SCHOMBURG: May the registry show the documents to the

7 Defence, please.

8 MR. KOUMJIAN: Just a general comment, these are official

9 translations, so I'm not sure that an objection to the translation, that

10 we have to review it, is appropriate.

11 JUDGE SCHOMBURG: We have to decide this nevertheless when it's

12 still open.

13 MR. OSTOJIC: True, our only comment was we did not at that time

14 have the translation. But we do now obviously. We'll look at it. And as

15 long as we have the translation we'll accept the translators' version of

16 it. If something comes up that we think is perhaps obvious, we'll bring

17 it to the Court attention when appropriate.

18 JUDGE SCHOMBURG: Thank you. Just for the record and for the

19 Registry, those documents are admitted into evidence as S4 to S6 A and B

20 relatively.

21 I don't want to go too much into other details today. I think we

22 should come back to the question of the additional witness, and we have

23 still a motion on this. But this can't be addressed today. What is the

24 number of the witness we have to expect on Monday, 14.15?

25 MR. KOUMJIAN: 37 will be the next witness. To be followed

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1 by -- 37 is the next witness.

2 JUDGE SCHOMBURG: To be followed by? Number 40 is no longer

3 relevant? Because this was still on the list.

4 MR. KOUMJIAN: Yes. It's still relevant. There was a necessity

5 to move that witness's arrival back.

6 JUDGE SCHOMBURG: Okay.

7 MR. KOUMJIAN: So it will be 37 next week, 26, and we have

8 scheduled witness Number 9, although I think that's a little optimistic.

9 JUDGE SCHOMBURG: We'll try our best. And I think now the weekend

10 is really well deserved. I thank the parties for cooperation. And see us

11 on Monday, 2.15. Thank you.

12 --- Whereupon the hearing adjourned at

13 4.41 p.m., to be reconvened on

14 Monday, the 6th day of May, 2002,

15 at 2.15 p.m.

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