International Criminal Tribunal for the Former Yugoslavia

Page 3224

1 Tuesday, 21 May 2002

2 [Closed session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.31 p.m.

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5 [Open session].

6 MR. KOUMJIAN: May I just make one comment on the --

7 JUDGE SCHOMBURG: We are in open session.

8 MR. KOUMJIAN: The witness who is protected had some concern about

9 Defence counsel knowing his name. I will explain to the witness that --

10 we do tell the witnesses that the Defence counsel always gets their name.

11 That's one of the requirements. I didn't see anything that caused me any

12 concern from the question that counsel asked.

13 JUDGE SCHOMBURG: To be concrete as regards next week, you said

14 this will be a witness taking us a long time, a long period of time? Just

15 for preparation, the number would be?

16 MR. KOUMJIAN: I believe it's 37. While that's being checked, I

17 would say that this witness I think can comment upon many documents. So

18 I've given a list- I don't know if it has been communicated yet to the

19 Court -- excuse me, Witness 35 is the next witness. I think this is a

20 witness that will take more than two days, and it will take at least two

21 days in direct examination if I put all those documents to the witness.

22 I'll proof the witness over the weekend. I'll be meeting with him to see

23 if he can comment on those.

24 JUDGE SCHOMBURG: Any observations by the Defence right now on the

25 witnesses, first of all?

Page 3287

1 MR. OSTOJIC: On the witnesses, no, Your Honour. We don't have

2 any observations or comments in connection with that, except for Witness

3 35, and they did give us, and perhaps this is something that counsel and I

4 can clarify. We do have the transcript from a prior proceeding that seems

5 to stop in the middle of the cross-examination. It stops on page number

6 D7661. And clearly, that's not the end, but I'm sure we can figure that

7 out without your assistance. That would be my only comment on that.

8 JUDGE SCHOMBURG: Thank you for this observation. And at the same

9 time, we would ask the OTP, when the Defence is provided with former

10 statements, it's also in the interests of the Bench to have access to

11 these former transcripts. I know the Tribunal runs into serious

12 difficulties when we have the fourth, the fifth, the sixth transcript.

13 And quoting from all the transcripts, but I can't see any solution without

14 infringing the principle of fair trial, this brings me to one reminder I

15 have in my book. I think it was Witness D where the Defence asked for

16 additional transcript. Is this problem resolved right now? There was a

17 cross-examination by Mr. Lukic.

18 MR. KOUMJIAN: I think it was Witness -- excuse me, I believe it

19 was Witness A, and the Defence was given that after -- actually it was

20 offered it just before the cross-examination, was given to the Defence

21 after the cross-examination.

22 JUDGE SCHOMBURG: So this problem was resolved?

23 MR. OSTOJIC: Late, but I guess in the spirit of things, it was

24 resolved, Your Honour.

25 JUDGE SCHOMBURG: It's resolved. Good to know. So whenever there

Page 3288

1 will be in future former transcripts, they should be given not only to the

2 parties, but also to the Bench. But I have to emphasise that there is

3 still also, as regards these transcripts, the obligation under Rule 68 to

4 identify that what the OTP will label as "exculpatory" material. I know

5 it's difficult, but we can't change the rules.

6 MR. KOUMJIAN: Well, the way I understand Your Honour, is to say

7 that if we provide a transcript, we have to tell the Defence where we

8 believe the witness can help the Defence? Actually, I think that's a

9 broader interpretation of Rule 68 that I have or the case law supports. I

10 understand if we're not providing it, we have to point it out. But if

11 we're providing a whole transcript, I don't think it requires -- I think

12 Dr. Stakic is very well represented and doesn't need any lawyers to give

13 advice as far as what, in a transcript, can help him.

14 JUDGE SCHOMBURG: To be honest, as Defence counsel, I would also

15 prefer not to have a document, not in the beginning labelled. But of

16 course, it makes sense that you still have the obligation whenever you

17 find out that something could be exculpatory, for example, exhibits

18 mentioned only this transcript, and you have the impression this could be

19 exculpatory material under 68. So I would say, in dubio, give it to the

20 Defence as such material.

21 I hope there is no disagreement between the parties.

22 MR. OSTOJIC: I concur with the Court's opinion on that, and we

23 appreciate it if they can identify it for us and provide it to us on a

24 more timely basis, if at all possible.

25 JUDGE SCHOMBURG: But coming back to Witness 35, I understood you

Page 3289

1 correctly if you are provided with the additional part of the, you say,

2 missing part of the cross-examination, you're prepared to hear this

3 witness next week?

4 MR. OSTOJIC: Yes, but it's next week, so we're anticipating that

5 our friends across the table will provide us the additional transcripts

6 prior to Friday of this week. And we haven't met with them informally to

7 discuss that, but I am confident they will provide that to us.

8 I do have two other matters, Your Honour.

9 JUDGE SCHOMBURG: I don't think this should be a problem.

10 MR. KOUMJIAN: I don't think it's a problem. Actually, as I

11 recall, that witness was not cross-examined, so I'll double check that,

12 because I don't recall reading any cross-examination.

13 MR. OSTOJIC: Respectfully, just for the record, the

14 cross-examination actually starts and then ends in mid-sentence on the

15 last page. So I think there was further examination of the witness after

16 the questioning by Mr. Keegan.

17 JUDGE SCHOMBURG: I'm quite sure that you will both come to an

18 agreement on this, and if not, there will be an opportunity, I think, the

19 last possibility granted to the requesting party was Friday, 11.30. And

20 it can -- I have the confirmation that both parties can live with this

21 date, Friday 11.30?

22 MR. OSTOJIC: Yes, Your Honour.

23 MR. KOUMJIAN: Yes, Your Honour.

24 JUDGE SCHOMBURG: Okay. Then let's do this. And in addition,

25 also for preparation of Friday, I have to inform the parties that the

Page 3290

1 Bench has decided that it's necessary to have another expert witness,

2 graphologist, on the signature, especially on the one document we got in

3 copy by Mr. Murselovic. And I think this should be discussed on Friday,

4 whether or not such an expert witness has to be heard. As things stand

5 now, it's indispensable for the Bench to have such an expert witness. We

6 all know how difficult it is to have an expert witness on the basis of a

7 photocopy, and this takes a lot of time and a really high-qualified

8 expert. Therefore, we announce this already. If until Friday during the

9 meeting there is no other solution, we will formally order this expert

10 witness to be heard. This is one other point on the agenda.

11 MR. KOUMJIAN: My contribution on that is from my 20 years'

12 experience, is that it's very, very difficult- I've almost never seen an

13 identification just from a signature. They usually would require more

14 writing than that. And as Your Honour pointed out, they also would

15 require an original and not a photocopy. So I think it's very unlikely

16 that there be any possibility of a positive identification. And as far as

17 I know, the Defence has not disputed that signature. They have disputed

18 the authenticity of documents with no signature. But I've never heard

19 that they dispute -- I know they don't have to comment on this, the

20 signature.

21 JUDGE SCHOMBURG: Just your last remark is the reason why I

22 mentioned this today, and we can -- you are prepared to answer the

23 question already? Or do you want --

24 MR. OSTOJIC: If the Court would like. My recollection is

25 slightly different than counsel's. We actually did object, if I recall,

Page 3291

1 to the signature of the late Dr. Milan Kovacevic on that. Unlike others

2 that we did object to where there were no signatures, we did specifically

3 object to those signatures because it seemed to us from a layperson again

4 that it was somewhat inconsistent. And I recall specifically counsel

5 offering to the Court that we do have Dr. Kovacevic's original signature

6 because he was incarcerated at the UN Detention Centre in Scheveningen,

7 and we can make a comparison based on that. So I would, at this point, be

8 leaning towards having such an expert on the basis of those documents.

9 JUDGE SCHOMBURG: Until now, the point was only the document

10 provided, as I probably am wrong, with a signature that was said to be one

11 of Dr. Stakic. And this document was the point of our special concern.

12 The document provided by Mr. Murselovic. If you remember the dispute on

13 the copies, both sides and so on. And this document, this was the basis

14 of our decision that we regard it as necessary, at least to try. And I

15 know there are also limits for these expert witnesses, but to a certain

16 extent, it is possible on the basis of additional material. And as it was

17 pointed out with respect to Mr. Kovacevic, there will be in Scheveningen,

18 additional material available for this comparison. But it's up to the

19 Defence to discuss this with your client.

20 MR. OSTOJIC: We'll do that, Your Honour. Thank you.

21 JUDGE SCHOMBURG: Thank you.

22 Objections from you?

23 MR. KOUMJIAN: Nothing further. Thank you, Your Honour.

24 JUDGE SCHOMBURG: You had two others.

25 MR. OSTOJIC: Thank you, Your Honour. Just very briefly, if the

Page 3292

1 Court can, at this time, accept the Defence exhibit, the statement that

2 the witness today identified with his signature pages dated September 2nd

3 through 4 of the year 2000, we would like to have the Court accept that as

4 an exhibit. If the Registrar could help us with the next exhibit number,

5 we would appreciate it.

6 JUDGE SCHOMBURG: First of all, let's hear the statement of the

7 OTP. I understand that it's not the content but it's the question when

8 the signature was provided under these -- how many pages? These 17 pages.

9 Right?

10 MR. OSTOJIC: Correct, Your Honour.

11 JUDGE SCHOMBURG: Okay. Objections from the OTP?

12 MR. WAIDYARATNE: It should be 18.

13 JUDGE SCHOMBURG: On page 18, I can't see --

14 MR. WAIDYARATNE: Not the signature of the witness, but the

15 interpreter. It should be 18.

16 MR. OSTOJIC: There is 18.

17 JUDGE SCHOMBURG: If I understand correctly, you're contesting

18 that the signature was done on the 4th of September, 2000.

19 MR. OSTOJIC: We're not making that contest at this time at all,

20 Judge. What we'd like to do is just enter the exhibit in its entirety

21 after having had the witness identify that it's his signature that appears

22 and he verifies the accuracy of the statement as we discussed during the

23 cross-examination.

24 So we're not arguing as to whether he signed it on the 4th of

25 September, or at any time subsequent to that.

Page 3293

1 JUDGE SCHOMBURG: Just for better understanding, my point is that

2 when we admitted into evidence one of the previous statements, it was the

3 clear exception, due to the specific circumstances of the signature of

4 these two exhibits at that time. And I think we shouldn't really start --

5 of course we are open -- but we shouldn't start to admit former exhibits

6 into evidence. We have the contents in our transcripts. There was an

7 examination on this. There was a cross-examination. There were questions

8 by the Judges, and I think this should be in principle enough. If not,

9 you want to say you doubt whether or not the signature was done in the

10 year 2000, September 2 to 4? This should be really the exception.

11 MR. OSTOJIC: No, Judge, we are not contesting that the signature

12 was or was not done on the date that is reflected on the last pages of the

13 statement. Quite frankly our position is slightly different. We believe

14 that this statement, having been presumably read by the Court, I say it

15 respectfully because it's not necessarily evidence, having read it to

16 compare it with the testimony, and to draw out any potential

17 inconsistencies with the statement may be of assistance in the Defence

18 meeting what we believe is an appropriate Defence and also pointing that

19 the Prosecutor may not have met his burden of proof, if there were certain

20 inconsistencies that go to the threshold issue the counts of the fourth

21 amended indictment. So it is for that purpose that we are seeking this

22 statement as I recall other statements is having been brought in, since

23 the Court has read it and we have asked questions on it, there are other

24 inconsistencies that may have been brought out that we think is necessary

25 for both the briefs at the end of the Prosecutor's case as well as the end

Page 3294

1 of our case that we would like to point out on this witness.

2 JUDGE SCHOMBURG: Observations by the OTP?

3 MR. WAIDYARATNE: Your Honour, the OTP position is, as the

4 questions were put by, I was surprised, because there were no

5 contradictions marked. If it was used for the purpose of marking

6 contradictions, I would have not had any objection. But I object at this

7 stage because there is no purpose. Because the questions have been put to

8 the witness, and he answered the questions, and no contradictions have

9 been marked. So if it's taken in total, I do not see any purpose of the

10 witness coming and giving evidence if you are going to admit this

11 statement. So I see no purpose at this stage if the Defence is not

12 challenging the signature of the witness, and also if there is no other

13 contradictions or inconsistencies marked, there is no basis for the

14 Defence to admit this statement.

15 JUDGE SCHOMBURG: As this seems to become a matter of principle,

16 also for future exhibits, I think it's only fair that the Judges

17 deliberate on this and decide on your request tomorrow.

18 MR. OSTOJIC: Thank you.

19 JUDGE SCHOMBURG: And your second point was?

20 MR. OSTOJIC: Second point is a minor point, and I say this most

21 respectfully to the Tribunal, my co-counsel and lead here, just to the

22 record is clear, and I'm making this purely for the record, Your Honour,

23 we understand your ruling on the issue with respect to the prior

24 "convictions," if I may, without drawing too much into it. But my

25 colleague merely made a point on clarifying the record. We understand

Page 3295

1 your ruling, and we moved from that point immediately. However, the

2 witness seemingly gave an answer, uninvited by us, on an issue, and all we

3 were trying to do at that time was correct the record which didn't seem to

4 reflect the accuracy of the testimony being given by the witness. So I

5 just want the record to be clear, Your Honour, that we were not at any

6 point trying to attempt to expand or go beyond what this Court has ruled

7 on that issue. But as we have in the past, and from time to time

8 unfortunately, we might in the future, we merely just wanted to know if

9 the record was made -- the statement was made by the witness and if the

10 interpreters heard it or not. And the Court can strike it obviously. You

11 can do whatever you wish to do with it. But I just want our position to

12 be clear on that, judge.

13 JUDGE SCHOMBURG: As it was discussed already earlier, of course

14 you can test the credibility of a witness. No doubt. But this shouldn't

15 reach a stage where you really could speak about intimidation of a

16 witness. I know that the lines are drawn in a different way in common-law

17 system and in civil-law system. But what we have to do here is to avoid

18 of a clash of these systems, and therefore please understand that we try

19 to find on a case-by-case basis whether it's really worse to be discussed

20 under the headline "credibility" or not. And this was our point here. And

21 we will proceed to have this threshold also in the future.

22 MR. OSTOJIC: Thank you, Your Honour. If I may, just a last

23 subpart on this second issue, and I do have no more after that, I would

24 like to discuss this issue on prior convictions and the credibility, if I

25 may, with the Court on the Friday, 11.30 meeting, if that would be

Page 3296

1 appropriate, just so the Court knows.

2 JUDGE SCHOMBURG: It's already on the agenda.

3 MR. OSTOJIC: Thank you, Your Honour.

4 MR. KOUMJIAN: Your Honour, if I could add one point regarding the

5 admission of statements, since Your Honours are going to deliberate

6 regarding that for tomorrow, in my opinion, the offer of the Defence to

7 have these statements admitted for the purpose of seeing whether there

8 were any contradictions with their testimony violates Rule 90 [H] Of the

9 rules of procedure which require that in cross-examination, counsel should

10 put to the witness the nature of the case of the party for whom that

11 counsel appears, which is in contradiction of the evidence given by the

12 witness. That's Rule 90 [H], (ii). The purpose of that rule, and its

13 most fundamental aspect, is unfair to a witness to have them testify, have

14 them leave, go back to their country or wherever they are from, and then

15 argue this statement is contradictory what they testified to without

16 giving the witness an opportunity to respond to that.

17 JUDGE SCHOMBURG: Indeed. This was the underlying reason for our

18 decisions in the past, that we restricted ourselves to only questions when

19 the -- to put it this way, the authenticity of a document was at stake, a

20 signature or whatever. But please, I appreciate to hear your comments.

21 MR. OSTOJIC: Very briefly, I couldn't disagree more with the OTP

22 on this position. If the Court is going to hear the testimony, then the

23 Court should not -- respectfully, the rules don't state that the Court and

24 the Judges will accept an abundance of documents and review them prior to

25 the testimony of the witnesses. Essentially the spirit of the rule was

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Page 3298

1 that the Chamber, the Judges, were to take the testimony in. And if we

2 decide to give the statement to the witness to show an inconsistency, we

3 would naturally mark it, identify it, share it with the opposing counsel,

4 the witness, and the Chamber.

5 However, unlike -- nowhere in the rules does it state, the Trial

6 Chamber, not just in this case but in other cases in the past, and

7 certainly will in the future, for efficiency and judicial economy and

8 other unrelated items, have these statements already and are looking at

9 these statements essentially as evidence. So when the judgement or the

10 decisions that are based on evidence, will this panel then ignore all the

11 statements that it has read in the past? Could it ignore all those

12 statements? Those are the critical issues that we have. If this Chamber

13 and the Judges reviewed that, is it evidence? And if it is, all we want

14 to do is mark it as evidence. We have a right under the rules to argue

15 what we perceive as being inconsistent. They can rebut that. The Court

16 could certainly reject our views on that. So I just want to be careful

17 that the record is clear, because the Court itself, if I may say

18 respectfully, I have observed, have read some of the statements. And I

19 don't say it positively or negatively and you have asked questions based

20 on those statements. So I'm just a little concerned that we're putting

21 things to the Court, and maybe this is an issue we can discuss further on

22 Friday. But I totally disagree with counsel's reading of that rule. It's

23 inconsistent with what we're talking about here. There's no basis for

24 that. I think that it's appropriate once the witness identifies a

25 document, says that it's his signature, and we ask that it be introduced.

Page 3299

1 That's the threshold, fundamental authenticity foundation questions that

2 we are required to meet. None more.

3 JUDGE SCHOMBURG: Two questions on this: Would you regard the

4 same as true when it comes to former transcripts? And what about the

5 principle of directness? Isn't it true that a judgement can only be based

6 on that what has been discussed in the courtroom?

7 MR. OSTOJIC: There's no question the judgement should be based on

8 only that which is discussed in the courtroom. However, what the Court

9 and, at times, the Judges have done is drawn from items that are not in

10 evidence in order to ask questions. The OTP has the burden of proof in

11 this case. And if they failed to ask a question as to what, for example,

12 respectfully, was the disposition or personality or characteristic of

13 Dr. Stakic, a witness may have identified that characteristic in a

14 statement, but it has never been heard in a court. The only other way we

15 can glean as to what that characteristic may be is from an item that is

16 not technically evidence but yet this Court has reviewed and has decided

17 to ask questions upon, therefore making it evidence.

18 So I'm just suggesting, if I may respectfully, again, that if

19 we're going to allow it -- and I don't have an objection to the Court

20 having these statements in advance or the transcripts. If we're going to

21 continue with that process, that the Defence, when they see that a

22 statement is in our interest, what we perceive to be some inconsistencies,

23 whether anyone agrees with that is a totally different issue, but that

24 those documents be admitted intuito as evidence.

25 JUDGE SCHOMBURG: Thank you for these additional observations.

Page 3300

1 Any answer from your side?

2 MR. KOUMJIAN: No. I think I pointed out Rule 90(H), and counsel

3 didn't contradict that. I stand by the proposed use of the statement to

4 contradict the witness by Rule 90(H).

5 JUDGE SCHOMBURG: Okay. We have to decide on this tomorrow.

6 Anything else to be decided today?

7 MR. OSTOJIC: No, Your Honour.

8 JUDGE SCHOMBURG: Then --

9 MR. KOUMJIAN: Nothing else, Mr. President.

10 JUDGE SCHOMBURG: Then we have to conclude for today. And meet

11 again tomorrow, 2.15. Thank you.

12 --- Whereupon the hearing adjourned at

13 6.47 p.m., to be reconvened on

14 Wednesday, the 22nd day of May, 2002,

15 at 2.15 p.m.

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