Tribunal Criminal Tribunal for the Former Yugoslavia

Page 290

1 Tuesday, 4 November 2003

2 [Sentencing Proceedings]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE SCHOMBURG: A very good morning to everybody. Please be

7 seated. And I have to inform you that for serious illness, Judge Mumba is

8 unable to sit today; therefore, we have to discuss whether or not to apply

9 Rule 15 bis, in principle providing for the possibility to continue after

10 the last change of the Rules for a period of not more than five working

11 days. But before we discuss this question, may I ask the registrar,

12 please call the case.

13 THE REGISTRAR: Good morning, Your Honours. This is case number

14 IT-94-2-S, the Prosecutor versus Dragan Nikolic.

15 JUDGE SCHOMBURG: Thank you. And the appearances, please, for

16 the Prosecution.

17 MR. YAPA: Good morning, Your Honours. For the Prosecution today,

18 appearances the same as before; I'm Upawansa Yapa, appearing with

19 Ms. Patricia Sellers and Mr. William Smith, and Diane Boles continues as

20 case manager.

21 JUDGE SCHOMBURG: Thank you.

22 And for the Defence, please.

23 MR. MORRISON: Good morning. Howard Morrison and

24 Tanja Radosavljevic for the accused, Dragan Nikolic.

25 JUDGE SCHOMBURG: Thank you. And may I ask Mr. Nikolic, can you

Page 291

1 follow the proceedings in a language you understand?

2 THE ACCUSED: [Interpretation] Yes, I can, Your Honour.


4 Are there any submissions by the parties whether or not to

5 continue under Rule 15 bis?

6 The Prosecution?

7 MR. YAPA: Thank you, Your Honour. So far as the Prosecution is

8 concerned, we have no objections to the proceedings

9 continuing -- continuing today in the absence of Judge Mumba. Actually,

10 it is my learned friend's day, so it will be more for him to say as to

11 what his stand is. I thank Your Honour.

12 JUDGE SCHOMBURG: May we hear the Defence.

13 MR. MORRISON: Well, Your Honours, we're all sorry, of course, to

14 hear of the Judge's incapacity and hope that she recovers as quickly as

15 possible. But I am very disquieted about the possibility of continuing in

16 her absence at this extremely critical moment, as far as the defendant is

17 concerned. This isn't a question simply, of course, of reading what are

18 non-contentious documents. It's a question of seeing, in the flesh, the

19 only Defence witnesses, and the defendant himself, at really the pivotal

20 point in the Defence case, as far as he is concerned. The only analogy is

21 I can really make is with my own system: It's like losing four out of the

22 eight -- 12 jurors at a critical moment in the Defence case.

23 If it would suffice for jurors simply to see a video and read a

24 transcript, then there would be almost no point in having live hearings in

25 any case, especially when the witnesses come from afar. One would simply

Page 292

1 video them at home and bring them to court, if that was thought to be

2 a -- as fair a proceeding as could be devised. It's plainly not thought

3 to be as fair a proceeding as could be devised, which is why we've set up

4 this hearing and brought the witnesses in person. And I hope Your Honours

5 take the view that the Defence in this case has not been obdurate or

6 uncooperative, and I don't want to be obdurate or uncooperative, but

7 likewise, I am very disquieted about the possibility of continuing in the

8 absence of Judge Mumba today.

9 [Trial Chamber confers]

10 JUDGE SCHOMBURG: Just two minutes, please.

11 You have seen that we have discussed your points, and no doubt

12 there are some merits in your suggestion; however, as the underlying

13 principle in this court, why we have changed in the last plenary Rule 15

14 bis in several parts, allowing to continue even without the consent of the

15 accused when a Judge has to be replaced and, on the other hand, to

16 add -- to prolong the period from three days to five working days; the

17 underlying reasons was -- and this was a clear result of the discussion in

18 the plenary. The rationale for this is that opposed to other domestic

19 cases, we don't have only the transcripts, we have in addition the video.

20 And please be assured that the Judges exercise their work very

21 conscientiously. For example, for a certain reason we asked that a video

22 of yesterday's hearing be provided for us that we can check what actually

23 happened. It gives a better impression, and we can recall better what is

24 happening in court.

25 This is, by the way, an extremely good example how difficult it

Page 293

1 is to rely on witnesses when out of three Judges the one or the other

2 believes to have seen this and the other believes to have seen that. Then

3 we have the video and can check it. It's more reliable.

4 So therefore, it is the rule rather than the exception to

5 continue. We are prepared, in light of the importance of a maybe

6 testimony or statement of your client - we don't know yet - to postpone it

7 and try, if you so want, to hear the statement or the testimony the last

8 possible day this week in order that also Judge Mumba, in case she is well

9 again, can follow this testimony or statement.

10 Can we -- one alternative would have been to continue with the

11 testimony of -- the expert testimony of Dr. Grosselfinger, but I just got

12 the message that in principle she would not be prepared. We can come back

13 to this issue after the break, after a discussion.

14 So we have finally decided to continue under Rule 15 bis with the

15 caveat that it's for you to decide whether to call your client if you so

16 wish for a statement or for a formal testimony. But the presentation and

17 the -- should be given today, and the other witnesses of the Defence

18 should be heard today in the light of that what I have said before on the

19 technical equipment and development that allows Judge Mumba to follow the

20 hearings in a reliable way. So therefore, we will proceed under Rule 15

21 bis today.

22 May I then ask, as I did yesterday --

23 [Trial Chamber confers]

24 JUDGE SCHOMBURG: What is planned for -- what is the agenda of

25 today, in the light of this development?

Page 294

1 MR. MORRISON: Well, Your Honour, as far as the Defence is

2 concerned, the only difference in the planned agenda, which is as follows:

3 I am going to make the briefest of openings for the Defence because it's a

4 case which requires a brief and succinct opening for the Defence. It is

5 not one that requires a convoluted opening. The matters in mitigation are

6 going to be presented outside, as it were, the ambit of my speech but

7 with -- included, of course I'm going to make reference to them. I'm

8 going to save the most part of what I say for the final speech,

9 which -- and there is no merit in repetition; it would otherwise become

10 repetition.

11 So today, in the light of the Trial Chamber's ruling, I shall

12 first be making a very short opening. I shall then be calling

13 Mr. Jovo Delic, who is the brother-in-law of the defendant. I anticipate

14 that his evidence will take something in the order of 30 minutes. I do

15 not anticipate, although I'm often proved wrong, that it will generate

16 much in the way of cross-examination from my learned friend, but it may

17 generate some questions from Your Honours.

18 Likewise, I then turn to call Ms. Ljiljana Rikanovic, who's a

19 cousin of the defendant. She can only speak as to post-1996, because --

20 JUDGE SCHOMBURG: May I just -- okay. Now it's continuing.

21 MR. MORRISON: And likewise, I wouldn't have thought that her

22 testimony was going to take much in excess of 30 minutes, certainly as far

23 as the Defence is concerned.

24 It was the intention discussed and thought about and confirmed

25 only this morning indeed that the defendant himself would then not make a

Page 295

1 statement but give testimony on the issue of remorse and apology or the

2 joint issues of remorse and apology, but in the light of the -- what's

3 happened today, I will first need to speak to him again; and secondly, it

4 may well be the case that having done so, that it is thought better to

5 wait until the last day of the hearing, when hopefully Judge Mumba will be

6 recovered from her illness.

7 That really is the -- the layout.

8 JUDGE SCHOMBURG: Thank you for this. As we already indicated,

9 we would understand if you would postpone, however, I would like -- I can

10 see that Dr. Grosselfinger is following, as it was indicated in the

11 scheduling order of the proceedings, in the public gallery. We would

12 kindly ask her to review and revisit her thoughts whether or not after a

13 reasonable break she can -- she can be prepared to answer questions that

14 may arise from her expertise. We have the expertise already in writing

15 before us, and we have all studied it, so it would be limited to

16 additional questions, and it would be only a short intervention. For this

17 reason, I would ask Dr. Grosselfinger - I hope she can follow us - to

18 revisit this question and be prepared to answer this question immediately

19 during -- after the first break we will have, say, in three-quarters from

20 now.

21 I can't promise that Judge Mumba - and it's really

22 unforeseeable - that she will be ready for trial during this week. The

23 Defence should take this into account. She seems to be seriously ill.

24 And in the light of this, we have to be extremely flexible, and I and the

25 entire Bench, we of course understand your considerations, but please also

Page 296

1 understand that we have to be as expeditious as possible.

2 Thank you for this understanding, and may I ask you to start your

3 opening remarks. Thank you.

4 MR. MORRISON: I'm grateful. On a simply procedural matter, it

5 may be useful - I don't know - in the light of the illness of Judge Mumba

6 and in the light of the possible changes to the considered and scheduled

7 layout of the case - I don't know; I'm simply thinking aloud - that it

8 might be better if we had a short Rule 65 ter meeting today at the

9 conclusion of whatever evidence we hear today so that we can plan the rest

10 of the week consensually. I'd simply throw that suggestion in for all

11 parties to consider. I'm grateful.

12 JUDGE SCHOMBURG: I can see no objections from the Prosecution,

13 and as we have also to discuss a serious legal issue we were aware of only

14 yesterday, it's indeed appropriate to have immediately after the

15 hearing - let's see how long it will take us - a 65 ter (I) meeting in my

16 office.

17 MR. MORRISON: I interject only to say I already have such a

18 meeting in another matter of that scheduled at -- at the moment at 2.30,

19 but I think that's probably a movable feast. But that can be determined.

20 JUDGE SCHOMBURG: So thank you for this suggestion. We will

21 follow this. And please start.

22 MR. MORRISON: I have said that I'm going to be brief, and I am.

23 The Defence case is in one sense simple. It always is when an

24 accused person has pleaded guilty to the indictment that he faces. As we

25 all know, some people sometimes plead partially guilty to an indictment;

Page 297

1 they negotiate the pleas; they extract from the Prosecution in fact a deal

2 in the sense of do not pursue me on Counts 1 to 5 and I will plead guilty

3 to Counts 6 to 10 or something of that nature. The reality in this case

4 is that, although the indictment has been substantially reduced in size,

5 it's not really been substantially reduced in content, which only goes to

6 show how a little careful thought can reduce an unwieldy document into one

7 that is relatively simple. And for that reason I say the guilty plea is

8 simple. It's straightforward in the sense that the accused has admitted

9 his guilt and he's admitted very serious offences, and there's no

10 gainsaying that. He knows that better than anyone else.

11 But in another sense, it's complex. And now I look at the accused

12 himself. And even what we've heard so far raises mysteries. It's going

13 to be, I anticipate, the unchallenged evidence that prior to 1992 the

14 defendant was an ordinary - and I don't mean that in a disparaging

15 sense - an ordinary, hard-working man from a relatively small town, who

16 knew the community and town well and the community knew him. And the

17 evidence I anticipate will show that he is a person who is a -- engaged in

18 sports, like most young men did, had girlfriends, as most young men do,

19 had a reasonably steady work record, which not every young man does,

20 unhappily, but he did; had no criminal record whatsoever; and until the

21 horrors that embroiled the Balkans, he was probably going to live an

22 unremarkable life; perhaps get married, perhaps have children, more likely

23 than not simply settle down in Vlasenica and raise a family. If one was a

24 betting man, one would put money on that being the scenario which would

25 have unfolded and developed. But we know that didn't happen, and that's

Page 298

1 where the complexity lies.

2 It's not suggested by the Prosecution properly and rightly that

3 this defendant was in any way a prime mover in what happened in the

4 Balkans. He wasn't a high-ranking political figure; indeed, he was not a

5 political figure at all. He wasn't a high-ranking military officer.

6 Indeed, he never advanced beyond -- in the 1992 conflict that,

7 effectively, of a private soldier. And yet, of course, he accepts and

8 understands not only through his plea to the indictment but through his

9 own cognisance now of what happened all those years ago, 11 years ago,

10 that such conflicts are made up in the first part usually of politics; in

11 the second part, and intertwined with politics so you cannot distinguish

12 one from the other, nationalism; and in the third part, human emotion,

13 which operates on a wide social basis but more particularly on an

14 individual basis. And the only sense that I can advocate for his

15 behaviour during the three months that we are concerned with at Susica

16 camp is that this was a man who could not cope with the demands that were

17 made upon him and placed upon him by others, that the dark side of his

18 character, which hitherto had not even begun to show itself, emerged, and

19 he did things which in normal circumstances - and the circumstances in

20 1992 were far from normal - in normal circumstances which would never have

21 arisen. And as I said, he would have just been - I hope he understands

22 that I say this with respect - an ordinary man. His story - if I may use

23 the literary analogy - would have been the rattle of a simple man.

24 And that's where it becomes complex; how does somebody who is

25 otherwise an ordinary, law-abiding, socially acceptable, likable person do

Page 299

1 these things and then stop doing them and then years later face up to

2 them? And that's part of the -- the mystery of this case.

3 So it starts off in one way as being simple. It then gets rather

4 more complicated. And perhaps - now, this is where the report of

5 Dr. Grosselfinger comes in - it's only really easy to understand or easier

6 to understand the complexities of the second part if you are used to doing

7 so and you have an academic and professional background which assists you

8 in doing so. We can all understand the common-sense argument of men being

9 given guns in uniforms doing bad things. History is littered with those

10 examples.

11 But there is then a third element to that. You take the

12 simplicity, you take the complexity, and then you take the third, which is

13 the last chapter, and that's hope. And hope derives in this case in three

14 particular ways: First because the defendant has pleaded guilty;

15 secondly, because he is going to be demonstrated and has in a sense

16 already been demonstrated as very remorseful; and thirdly, what he is

17 going to do in the future encapsulates the purpose of this Tribunal, which

18 is reconciliation and hope for the future, because without people

19 accepting what they've done and pleading guilty to it, there really is

20 very little hope for the future. Any bad person who commits offences and

21 refuses to admit them underlines his badness. He remains obdurate. There

22 is no real hope for society if any criminal came to the courts, fought

23 their trial to the bitter end, were convicted, imprisoned, never pleaded

24 guilty and never showed remorse. The criminal justice system then would

25 simply be down to locking people up and not to solving the problems of

Page 300

1 society. And any criminal system, in particular the ad hoc tribunals in

2 the international sense, have a mandate to go further than that and can

3 only go further than that when people see what they have done is wrong,

4 plead guilty to it, are punished for it, and then proceed further in their

5 lives to make it better.

6 Now, that's the structure of the Defence case. To illustrate

7 those points, there will be -- there's some written evidence, not only of

8 course from the Defence but from the -- in a way from the Prosecution as

9 well. There is the expert evidence we've yet to come to. But now I call

10 the two witnesses that the Defence is intending to call today to further

11 illustrate parts of what I have -- and I call, please, Mr. Jovo Delic.

12 JUDGE SCHOMBURG: I understand the Defence doesn't want to have

13 any protective measures for one of the witnesses. Thank you.

14 [The witness entered court]

15 JUDGE SCHOMBURG: Good morning, Mr. Delic. Thank you for coming

16 to The Hague as a witness. May I ask you, please, to give your solemn

17 declaration.

18 THE WITNESS: [Interpretation] Yes, Your Honour. I solemnly

19 declare that I will speak the truth, the whole truth, and nothing but the

20 truth.


22 [Witness answered through interpreter]

23 JUDGE SCHOMBURG: Thank you. Please sit down.

24 The floor is for the Defence.

25 Questioned by Mr. Morrison:

Page 301

1 Q. Can you give the Court, please, your full name and your address

2 where you now live -- or just the town and place where you live.

3 A. My name is Jovo Delic. I was born in Vlasenica on the 19th of

4 March, 1954.

5 Q. And could you tell us, please, what your relationship is with the

6 defendant, Dragan Nikolic.

7 A. Yes, I can. Dragan Nikolic is my brother -- no, in fact, I am

8 his brother-in-law. I've known him for at least 25 years.

9 Q. And we know he is now 47 years of age, so it follows you knew him

10 from when he was in his early to mid-20s; is that correct?

11 A. Yes.

12 Q. How did you come to meet him for the first time?

13 A. Well, I came to know Dragan Nikolic and his family because our

14 families were friends. Our fathers worked together for the same company,

15 so we knew each other from as long as I can remember.

16 Q. And did you socialise with him?

17 A. Yes. I spent time with him because I worked on a cultural hall

18 where Dragan Nikolic often came to see theatre plays, and there was also a

19 youth club there where young people gathered, never distinguishing among

20 ethnicities. Everybody socialised.

21 Q. I think you're slightly older than your brother-in-law; is that

22 correct?

23 A. I am four years older than Dragan.

24 Q. But not so much older that you wouldn't have social interests in

25 common.

Page 302

1 A. Yes. We socialised in Vlasenica because we were not too far

2 apart in age. Vlasenica is a small town, and young people aged around 20

3 socialised all together.

4 Q. You mentioned at the -- a moment ago in your evidence that you

5 never distinguished between ethnicities. We know from the statistics that

6 before the 1992 conflicts there were, in fact, more Muslims than

7 non-Muslims in Vlasenica. Did you realise that at the time, before the

8 conflict?

9 A. Yes, you're right. The composition of the population in

10 Vlasenica was as follows: 60 per cent of Muslims and 30 per cent of

11 Serbs. In those times, we never paid attention to each other's ethnicity.

12 We were simply friends. We didn't distinguish between ethnicities.

13 Q. And from your observations, did Dragan Nikolic socialise with

14 Muslims as well as people from a Serbian background?

15 A. Right. I can say that he, as well as I and all the rest of us,

16 had more friends among Muslims than among Serbs. Some of his best friends

17 were Muslims, who worked together with him and spent time with him

18 socially. I also know that Dragan was a member of the scouts club, the

19 mountaineering club, and they went together on trips to other towns in

20 Yugoslavia.

21 Q. So those clubs were mixed. There was no distinction between one

22 ethnicity and another, as far as the club was concerned.

23 A. Exactly. Nobody ever mentioned or thought about ethnicities.

24 The question never arised at the time.

25 Q. Thinking back now, now that you've reached a mature age, thinking

Page 303

1 back now to Dragan as he was in his 20s and 30s, how would you describe

2 him as a man? Give a brief description of him as a man, as a person.

3 A. Well, well, he was very sociable, very communicative. He was

4 never involved in any incidents. He never had a record at the MUP of

5 Vlasenica, and that is verifiable. He was never given to getting involved

6 in trouble. He was never a troublemaker, and he's known as a quiet,

7 decent person by both Serbs and Muslims and Croats. His conduct was quite

8 normal. He never caused any trouble. He was never involved in any

9 incidents on ethnic grounds or otherwise.

10 Q. And what of his -- as far as you were aware, what of his

11 emotional life? Most young men or many young men have girlfriends and mix

12 with people of the opposite sex. From your own observations, did you see

13 him engaging in that sort of social activity?

14 A. Yes. Dragan Nikolic did not live in the same street as I did.

15 And when he would go out in the evening to the cinema, for instance, he

16 would always be in the company of girls from his neighbourhood, and he had

17 a girlfriend, as all the other young men did, at that time. However, he

18 had a number of family tragedies; the first one was the loss of his

19 father, who died when he was still very young.

20 Q. I don't think it's in dispute that Dragan Nikolic was 23 years of

21 age when his father very suddenly and unexpectedly died. Is that your

22 recollection?

23 A. Yes. I remember that his father died very young, and his mother

24 was left alone with three children who needed to be raised and put through

25 school. He was the eldest child. And despite all these difficulties and

Page 304

1 hardships, he managed to finish school and enrol in university. However,

2 he had to abandon his studies because he could not afford them, and out of

3 those three children he was the first one to get a job to be able to

4 support the others. Later on he thought, when his sister and his brother

5 were graduating from high school and his brother enrolled in university,

6 his brother couldn't go through with his studies either because there was

7 no money for it, and one of the three children had to find a job to

8 support the others. Dragan was, however, more anxious to find a job for

9 his sister because that seemed easier; whereas, he would do odd jobs,

10 until he found permanent employment. And that's what happened. He

11 eventually found a job, and I think that he went back to the university

12 parallel with his job, and I think he read one-year course.

13 Q. Now, the -- again, it's -- I don't think it's in contention that

14 the defendant worked in a -- an aluminium construction factory in

15 Vlasenica called Alpro; is that correct?

16 A. Yes.

17 Q. And he held a regular and responsible job in that organisation.

18 A. Yes. He found employment in the aluminium coating factory in

19 Vlasenica, where he was the senior warehouse worker, which is a job that

20 carries with it great responsibility, because the warehouse holds very

21 expensive material, and he performed it very well. You can check that

22 with the management at the factory. You can send somebody to make

23 inquiries about his record. At the Alpro factory, the workforce was

24 half/half, I think; half of the employees were Serbs, half were Muslims.

25 But nobody paid attention to that at that time. Everybody socialised

Page 305

1 normally with everyone else. We really did not distinguish between

2 ethnicities.

3 Q. Now, you've mentioned briefly his immediate family. His father

4 died, leaving the mother with, I think, two boys - Dragan and Milan - and

5 his sister, who you came to marry; is that correct?

6 A. Yes. Yes.

7 Q. As a result of the marriage with the sister, you've had three

8 children, all female children, a set of twins and an older girl; is that

9 correct?

10 A. Yes. Yes, and I forgot to say earlier of course I'm married, I

11 have three children. Two of them are twins and the eldest is two years

12 older than the twins.

13 Q. And --

14 A. And I can only add that Dragan Nikolic has never seen my girls.

15 He wouldn't be able to recognise them in the street if he saw them now.

16 Q. That brings me on to the -- my next question. We know, and it's

17 not contested, that Dragan Nikolic left Vlasenica in 1996 and went to

18 Serbia; you were aware of that?

19 A. Yes, I was. Dragan left for Serbia in 1996, carrying a small

20 plastic bag. His health condition was very bad at the time. He went to

21 live with his uncle in Serbia mostly to get proper treatment, which was

22 unavailable in Vlasenica at the time after the war, and he was at a loss

23 what to do after the war because no one from the official authorities

24 called to tell him, to inform him that he was indicted.

25 Q. When did you first become aware that there was an indictment from

Page 306

1 this Tribunal in respect of Dragan Nikolic?

2 A. I found out from media reports sometime in end 1994 or early 1995.

3 We learnt from the press and the media that Dragan Nikolic had been

4 indicted and charges were levelled against him related to that locality,

5 to that place where he used to work. And we in the family found it hard

6 to believe.

7 Q. You found that out, as you say, at the end of 1994, beginning of

8 1995. But Dragan Nikolic left Vlasenica in 1996. Is that correct?

9 A. Yes. Dragan left in 1996, and about what I just said, until then

10 he moved around as usual. He was not hiding. But nobody offered any

11 advice. Nobody told him what he was supposed to do. The authorities

12 never approached him.

13 Q. To your recollection, was he still living in the family house at

14 that stage in Vlasenica, where he'd always lived?

15 A. Yes. He lived as usual at his home, as before. He would go out

16 to town as before.

17 Q. Now, you've mentioned his brother, called Milan. I think again

18 this is not contested that Milan's body was found upon the grave of this

19 father sometime after Dragan Nikolic had left Vlasenica; is that correct?

20 A. Yes. Another tragedy happened in his family. His brother Milan,

21 I mean, they were very attached to one another. They helped each other.

22 But when Milan heard about these charges and when the media campaign

23 started, when the newspapers started writing all sorts of things and

24 television broadcast all sorts of things, he couldn't take it any longer.

25 He committed suicide on their father's grave.

Page 307

1 Q. Can you recall now what year that was?

2 A. I think it was in 1998. I'm not quite -- 1997, 1998, something

3 like that. I know that it was the month of February. It was wintertime,

4 and we found him up there. He had gone all rigid, lying dead on his

5 father's grave.

6 Q. Now, once the defendant had left Vlasenica and gone to live in

7 Serbia, what sort of contact did you personally have with him?

8 A. Well, when Dragan went to Serbia, while his late brother was still

9 alive, he mostly contacted him over the telephone, things like that. I

10 knew that he had gone to Serbia, but I knew that he had gone for

11 treatment. He called me at times. He called me once from the hospital

12 because he was in a very serious situation then. He had gone numb and he

13 went to a spa for treatment, so his late brother, Milan, is the one who

14 had the biggest number of contacts with him. He's the one who took care

15 of him. And his sister had contacts with him too, but we could not help

16 him financially because my situation is very difficult. The general

17 situation in Bosnia-Herzegovina has been difficult ever since the war.

18 Q. How did you first become aware that the defendant was in The

19 Hague, having been arrested?

20 A. We found out from Dragan Nikolic himself. We found out that he

21 had been abducted from Serbia and he telephoned us and told us that he was

22 in prison, in the prison of The Hague Tribunal, and this caused a feeling

23 of tragedy in the family, especially on the part of his mother and sister.

24 The first time he called, I think he didn't even know where he was at all.

25 Psychologically he was totally dead, if that's how it's usually put, that

Page 308

1 kind of feeling. We didn't know what to do at the time. We didn't have

2 any money to retain a lawyer, a defence lawyer. We didn't know what to do

3 then. However, thanks to people from the judiciary, from the Tribunal,

4 they retained a lawyer. As you know, Howard Morrison,

5 Mr. Howard Morrison, later on he greatly helped the psychological recovery

6 of Dragan by way of his visits here in prison.

7 Q. Now, your contacts - and I think I can lead you on this; I'll be

8 stopped if there's any objection - your contacts with Dragan Nikolic,

9 since he's been in The Hague, have been by phone, letter, and indeed

10 personal visits; is that correct?

11 A. Yes. The only contact we had was when Dragan would phone from

12 The Hague, and then we would chat for about a minute or two. The next

13 contact was the following: My little girls and his sister and his mother

14 all wrote letters, because we are not in a position to visit Dragan here

15 in The Hague. Financially, this is impossible for us. It is impossible

16 for us to come and visit.

17 Q. But you have, in fact, been able to make a visit -- two visits to

18 him, I think -- in The Hague over the years that he's been there; is that

19 correct?

20 A. Yes. I would like to take this opportunity to thank the

21 International Red Cross from Geneva that made one of these visits

22 possible. As for the other visit, we had to save up for about a year in

23 order to make it possible to come and visit.

24 Q. Now, what changes have you noticed, if any, through your contact

25 with Dragan Nikolic since the time he's been in detention,

Page 309

1 between -- before he pleaded guilty and after he pleaded guilty? Are you

2 in a position to assist with that?

3 A. Well, at the first moment, when he was indicted, Dragan was in a

4 very difficult situation psychologically. Later on, as we he worked with

5 the gentleman lawyer, Dragan became more and more stable psychologically,

6 which can be concluded on the basis of his telephone calls, whenever he

7 called. The more times the lawyer, Mr. Howard, visited him, he was more

8 stable and stable psychologically.

9 As for later - I think that was part of your question too - when

10 he confessed, when he admitted what he admitted. You could feel that he

11 was relieved of his burden and that he had therefore become a different

12 kind of person himself. That is what I observed while we spoke over the

13 telephone. Psychologically he seems to be far more disburdened now.

14 Q. Now, inevitably he faces a prison sentence, a custodial sentence.

15 I'd simply like to ask you a common-sense question. During the course of

16 that imprisonment and thereafter, will he still have the support, as much

17 as you can give it, of yourself and your family?

18 A. Yes. We shall support Dragan while he is in prison, while he

19 serves his sentence. We will also support him when he returns to

20 Vlasenica, God willing, because the times are different now. I think

21 there will be no problem in terms of his return. The people, the ordinary

22 people, have understood what this unfortunate war of 1992 was all about.

23 So Dragan will not have any problems, as far as the other side is

24 concerned; I mean the Bosniak side.

25 When I left in order to come here, many of his friends, Bosniaks,

Page 310

1 sent their regards. And as for support, we are going to write letters to

2 him at least while he's serving his sentence. Financially, I'm not sure

3 how much support we'll be able to provide, but we'll try to collect

4 something.

5 Q. Thank you very much. Could you just wait there, please, in case

6 there are other questions for you. Thank you.

7 JUDGE SCHOMBURG: Thank you, Mr. Morrison.

8 May I ask the Prosecution.

9 MR. YAPA: Your Honours, if you'll bear we me for two minutes

10 while I consult.

11 [Prosecution counsel confer]

12 MR. YAPA: [Microphone not activated]

13 THE INTERPRETER: Microphone, please.

14 MR. YAPA: If Your Honours please, Ms. Sellers will ask a few

15 questions, one or two questions.

16 Questioned by Ms. Sellers:

17 Q. Good morning, Mr. Delic. Thank you for coming here and assisting

18 us with the sentencing hearing. As Mr. Yapa has just said, I have a few

19 questions.

20 A. Thank you.

21 Q. Now, you are the brother-in-law of Mr. Nikolic, and that means you

22 are married to Mr. Nikolic's baby sister; is that correct?

23 A. Yes. Yes.

24 Q. In addition to having a family relationship with Mr. Nikolic, I

25 understand that you are also an investigator on Mr. Nikolic's Defence

Page 311

1 case.

2 A. Yes.

3 Q. As part of your responsibilities as an investigator, you have been

4 trying to find evidence to show that Mr. Nikolic might have been innocent

5 of the charges of which he was accused; is that correct?

6 A. Yes.

7 Q. Mr. Delic, was that a paid position, the investigator for

8 Mr. Nikolic's case?

9 A. Investigator's pay is regulated, I think, by your own rules and

10 regulations, so yes.

11 Q. Yes, you were paid to be the investigator; that's correct,

12 Mr. Delic?

13 A. Yes. But even if I had not been paid, I would have done it free

14 of charge.

15 Q. And that's because you do care dearly for Mr. Nikolic as his

16 brother-in-law; correct?

17 A. No. First and foremost, I want the truth to be known, and I want

18 a man's name to be cleared, a man who is probably charged with having done

19 things that he had not done. Quite simply, to prove the truth and also to

20 prevent any such thing from ever happening again, things like those that

21 happened in 1992.

22 Q. All right. And you understand, Mr. Delic, that Mr. Nikolic right

23 now has admitted to the things to which he was charged were things that he

24 did do?

25 A. Yes.

Page 312

1 Q. Mr. Delic, you understand that Mr. Nikolic went to Serbia after

2 the events at Susica camp. Were you aware that while in Serbia he lived

3 under false identities?

4 A. I don't know about that. As I said to you a few minutes ago, he

5 went to Serbia because nobody had contacted him officially, that is,

6 municipal or state authorities or international authorities, nobody

7 brought him a piece of paper while he was still in Vlasenica. Nobody took

8 a piece of paper to his home stating that he had to report to The Hague

9 Tribunal. So the man simply went to Serbia for medical treatment, as far

10 as I know.

11 Q. Mr. Delic, you mentioned that you brought greetings from

12 Mr. Nikolic's Bosniak friends. I would just like to ask you: As of now,

13 what is the percentage of Bosniaks that live in Vlasenica?

14 A. Yes. In Vlasenica, the return has been evolving as a normal

15 procedure. There are about 100 families there, but all the houses

16 belonging to Bosniaks in Vlasenica are free, so they are returning as a

17 matter of course. But the only problem is that there are no jobs, so they

18 have nothing to live on. But if they could get jobs, they would come

19 back; there is no trouble, no incidents, no problem. So the main problem

20 is employment.

21 Q. And the Bosniak friends of Mr. Nikolic that sent their greetings,

22 were they Bosniaks who were in the camp at Susica when he was a commander?

23 A. I beg your pardon. I don't know how you treat him, but he was no

24 commander. He was just an ordinary guard. The people who sent their

25 greetings, I don't know exactly -- perhaps I can give you their names and

Page 313

1 surnames in closed session and then you can call these people and ask them

2 and check this out. Once I give you the names, I think it will be easy to

3 check all of this out.

4 MS. SELLERS: Your Honour, we have no further questions. Thank

5 you.

6 Questioned by the Court:

7 JUDGE SCHOMBURG: Mr. Delic, you stated what we hear nearly in all

8 the cases, that prior to the conflict and prior to the war people lived

9 together irrespective of their ethnicity, and this was also true for

10 Mr. Nikolic and there were no special problems. You mentioned the time

11 period prior to 1990 and then following 1994. May I ask you, have you

12 been in contact with Mr. Nikolic in 1992?

13 A. In 1992, I did not have any contact with Dragan because I was - I

14 can tell you this quite freely, and you know that yourselves - I was a

15 soldier of the army of Republika Srpska and I went to the front line. I

16 was an ordinary soldier, so I was not in town. We perhaps saw each other

17 once in a month or two in town when I was off, when I was not in the zones

18 of combat operations.

19 Q. Did you ever on one of these occasions visit Mr. Nikolic in the

20 Susica detention camp?

21 A. No, never. Because there was no need for me to go down there.

22 JUDGE SCHOMBURG: And just one final question. On page 22 of

23 today's transcript, you stated that you worked as an investigator to find

24 the truth on what really happened during the relevant period of time and

25 that you were paid for this work as an investigator. May I ask, who paid

Page 314

1 you for these investigations?

2 A. Well, probably The Hague Tribunal. I don't know. I don't know

3 exactly what the rules are that you have, in respect of people who do

4 these investigations.

5 JUDGE SCHOMBURG: Who ordered you to do these investigations?

6 A. Well, I was told to do this by Mr. Howard, the lawyer, that I

7 could work and that I could be on this team, because practically

8 Mr. Howard was working on his own. In the beginning, no one was out there

9 with him in the area.

10 JUDGE SCHOMBURG: When you received the money, from whom did you

11 get the money?

12 A. Well, the money went according to the normal procedure. I got the

13 money like the other investigators get their money.

14 JUDGE SCHOMBURG: Could you please be more clear on this question.

15 A. Yes. There is a timetable that is given, and then one has to put

16 in a certain number of hours, and then to provide adequate documents for

17 this, so all of this has to be given to the lawyer, Mr. Howard in this

18 case. And then, since he was the one that was coming here, then he did

19 everything else that was necessary, in terms of administration.

20 JUDGE SCHOMBURG: So you saw yourself more or less in the role of

21 part of the team of the Defence; correct?

22 A. Well, that would be about it.

23 JUDGE SCHOMBURG: Thank you. I have no further questions.

24 Judge Agius? No questions.

25 No questions --

Page 315

1 THE WITNESS: [Interpretation] May I? May I?


3 THE WITNESS: [Interpretation] May I just express my thanks to you,

4 Your Honours, for having asked me to come. On behalf of the Nikolic

5 family, on behalf of his mother and his sister, I would like to say that

6 they all offer their apologies in Dragan's case and they would not want

7 this ever to happen again, so they extend their apologies to all people

8 and to all their families, all of those who were victims on the Bosniak

9 side.

10 JUDGE SCHOMBURG: Thank you for this, Mr. Delic.

11 May I ask, are there any additional questions from the parties?

12 This seems not to be the case.

13 MR. MORRISON: Your Honour, no, thank you.

14 JUDGE SCHOMBURG: I thank you.

15 Then we all have to thank you, Mr. Delic, for coming to The Hague

16 and give us some insight in the personality of Mr. Nikolic and his growing

17 up in Vlasenica and the tragic events that happened in those years. And

18 we all hope that in the future once again the ethnicities will be able to

19 live peacefully together. And if you can bring this message back to your

20 home country, that this Tribunal does whatever possible to come as soon as

21 possible to a reconciliation, knowing, however, how difficult this

22 procedure will be after all that what has happened.

23 Thank you very much for coming, and have a safe trip home.

24 The trial stays adjourned until ten minutes to 11:00. Maybe it

25 will take a little bit longer because we have to settle some

Page 316

1 administrative matters in the meantime, but then we will let you know.

2 But please be prepared that we will continue ten minutes to 11:00. Thank

3 you.

4 --- Recess taken at 10.21 a.m.

5 --- On resuming at 10.57 a.m.

6 JUDGE SCHOMBURG: Please be seated.

7 Mr. Morrison, before you continue, may I just give some

8 information. During the break, Dr. Grosselfinger was kind enough to

9 declare her readiness in principle to give her expertise today, however,

10 with the caveat that she was only prepared for testifying on Thursday. So

11 in case there would be a question from one of the parties, she's not

12 prepared to answer without having the additional documents at hand. She

13 would ask for continuation on Thursday. I think this is a compromise we

14 all can live with, and therefore we can start at least with hearing her

15 expert testimony today.

16 May we then proceed.

17 MR. MORRISON: Your Honour, yes. I'm sure I speak for my learned

18 friend as well that we welcome the opportunity to save time by calling

19 Dr. Grosselfinger. And indeed, it won't actually -- from what's been

20 said, it won't actually take any more time because it simply adjourns the

21 question of-- of her answering questions to another day. Overall, I don't

22 see it's going to take any more time from our schedule.

23 One thing I do want to deal with though, because it was raised

24 during the course of cross-examination of Mr. Delic and I'm not happy to

25 let it pass unexplained. When the Defence team wanted to have an

Page 317

1 investigator based in Vlasenica, the people who were available in

2 Vlasenica who were suitable fell into an extremely small category. It had

3 to be somebody who was trusted by the family, trusted by the defendant,

4 and knew Vlasenica and knew the surrounding district, and more importantly

5 knew and was trusted by the local community from all ethnic backgrounds.

6 Having met Mr. Delic on a visit to Vlasenica, I formed the view

7 that he was an ideal candidate. When I came back to The Hague, I raised

8 this with Mr. Christian Rohde, who was then the head of OLAD, the Office

9 of Legal Aid and Defence, disclosed to Mr. Rohde the relationship between

10 Mr. Delic and the accused, and gave a request that he be assigned to the

11 Defence team as an investigator for limited purposes. That was considered

12 by the Registry. Permission was granted for Mr. Delic to be so engaged,

13 he was so engaged. He did the work that was required of him. He produced

14 the paperwork. I looked at it. I was satisfied that he had done what he

15 had said he had done; indeed, it seemed to me that he had done more than

16 he had said he had done in terms of work and hours spent. I authorised

17 it. I sent it to OLAD, and it was duly authorised and then sent to the

18 accountants, who also duly authorised it. It was all proper, above board,

19 and he was paid the standard rate for an investigator. And I would

20 welcome if anyone has any queries to that to see me later about it.

21 JUDGE SCHOMBURG: Thank you for this explanation, but I think we

22 shouldn't waste time with side aspects of the case, and it sounds

23 reasonable what you just explained, and therefore it's not for this case

24 to go into any further details of this question. Thank you for this.

25 Do you want to call now --

Page 318

1 MR. MORRISON: I do, please.

2 JUDGE SCHOMBURG: -- your second witness?

3 MR. MORRISON: Ms. Ljiljana Rikanovic.

4 [The witness entered court]

5 JUDGE SCHOMBURG: Good morning, Ms. Rikanovic. Can you hear me in

6 a language you understand?

7 THE WITNESS: [Interpretation] Yes, I can.

8 JUDGE SCHOMBURG: Thank you first for coming to The Hague. And

9 may we please hear your solemn declaration.

10 THE WITNESS: [Interpretation] I solemnly declare that I will speak

11 the truth, the whole truth, and nothing but the truth.


13 [Witness answered through interpreter]

14 JUDGE SCHOMBURG: Thank you. Please be seated. And as you are

15 called as a Defence witness, Mr. Morrison, please.

16 MR. MORRISON: Thank you.

17 Questioned by Mr. Morrison:

18 Q. Can you give the Trial Chamber, please, your full name and your

19 brief personal circumstance, where you live and what you are currently

20 doing.

21 A. My name is Ljiljana Rikanovic. I live in Batajnica. I'm

22 unemployed. I live with my family, my sister, my mother, father.

23 Q. Thank you. And what is your relationship with the defendant,

24 Dragan Nikolic?

25 A. I'm a relative.

Page 319

1 Q. Relatives fall into many categories. How do you come to be

2 related to him?

3 A. My father and his mother are half siblings, so he's not so closely

4 related to me.

5 Q. I may be wrong about this, but it seems that that makes you some

6 species of cousin to him, perhaps a second cousin. But in any event, he's

7 a family member in the extended sense of the family.

8 A. That's correct.

9 Q. Now, I hope it's not thought impolite, but how old are you?

10 A. I'm 31.

11 Q. And, of course, we are here in the case dealing with matters that

12 happened some 11 years ago, when you would have been about 20. That's not

13 a question as much as an observation.

14 When did you first become aware of the existence of

15 Dragan Nikolic? Can you recall how old you were?

16 A. I was a small child. I don't know, maybe two or three years old.

17 I can't remember.

18 Q. And what's your earliest recollection of actually meeting him? In

19 what circumstances was that?

20 A. We didn't see each other often. In fact, we saw each other very

21 rarely, on family occasions. He lived in Vlasenica, we lived in Belgrade.

22 And those were brief visits, family visits.

23 Q. So is it the case that you really only got to know him as a

24 personality after he'd left Vlasenica, which we know was in 1996, and gone

25 to Serbia?

Page 320

1 A. Yes. Yes. That is when I really met him, when I got to know him

2 really, and I'm glad I did.

3 Q. Now, that's about eight years ago, so you would have been in your

4 early 20s then.

5 You talked of a sister. You mentioned a sister. How old is she?

6 A. Twenty-seven. She's four years younger.

7 Q. And does she also live with you and your parents at home?

8 A. Yes. Yes, she does.

9 Q. And so when Dragan Nikolic came to Serbia, she would have, as it

10 were, come across him at the same time that you did; is that correct?

11 A. Correct. Absolutely correct.

12 Q. And as well as being able to tell us about your own relationship

13 and observations of Dragan Nikolic, therefore is it true that you can tell

14 us -- only from your observations, of course -- how he appeared to you to

15 relate to your sister?

16 A. The same as to me. He treated us all equally, my sister, me, my

17 father, my mother, everyone who came to visit.

18 Q. Now, you say he treated you equally. In what way did he treat

19 you?

20 A. Very decently. He's a wonderful man. I did not know him before,

21 and I only got to know him then.

22 Q. Now, I understand that when he first came -- do you want to use

23 the tissues there?

24 A. May I?

25 Q. When he first came to Serbia in 1996, I understand that initially

Page 321

1 he lived with you in your father's house; is that correct?

2 A. Yes, he lived with us. Yes.

3 Q. And --

4 A. We lived in a small, old house, all of us together.

5 Q. Five people in all?

6 A. Right. Before that, our grandmother used to live with us. And

7 after that, she left for Bosnia and we stayed. But we shared the yard

8 with our tenant -- in fact, tenants. They are a family of refugees who at

9 that time had a very young baby. But we all lived as one family. But

10 speaking of our house alone, we were there alone, our family.

11 Q. And how long did the defendant live with you and your family in

12 those circumstances, from 1996 onwards?

13 A. I don't know exactly. I think it may have been two and a half

14 years. I'm not sure. At the time when he left, we were somewhere on the

15 coast, and I can't say exactly, but I think it was two and a half years.

16 Q. All right. Do I interpret this correctly that he left your home

17 in Serbia when you were personally away from Serbia and, therefore, were

18 not aware of exactly when he left?

19 A. Yes. Yes, that's the reason.

20 Q. So for that period of time, be it two or two and a half years,

21 were you seeing the defendant on a daily basis?

22 A. On a daily basis.

23 Q. And just give us a -- take a typical day, if you can. What would

24 you do? What would he do? How would you interact with each other?

25 A. Living with him was wonderful. We were friends. We had long

Page 322












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 323

1 conversations about all sorts of things. We liked to walk and we took

2 walks together. He would often ask me to give him books to read, and I

3 would borrow them from my girlfriends and give them to him. He helped us

4 because we were building a new house at the time, and he was helping us

5 all the time, all the time that he lived with us. Anything that needed to

6 be done, he did anything that he could have done for us. He did -- he

7 never said no, to me, to my sister, or to my mother. He never refused

8 anything.

9 Q. And what sort of contact were you able to have with him after he

10 left your family home but before he came to The Hague? Were you able to

11 stay in contact with him in that period?

12 A. We never wanted to stop our contact with him, nor did he want to

13 stop being in touch with us. And when he left, we missed him a lot.

14 Q. Were you able to -- sorry. Were you able to contact him or have

15 contact with him through any -- in any way, through any medium, after he'd

16 left the family home but before he came to The Hague?

17 A. Yes. Yes. We would sometimes call him on the phone. We even

18 visited him once there, my father, my mother, my sister, and I to see how

19 he was doing, because we missed him so much. I remember the period of the

20 bombing, when they were bombing this neighbourhood where he lived and we

21 called him up and asked him to come over. We felt better having him

22 close. We had gotten quite used to him.

23 Q. How did you first become aware that he had been arrested and

24 brought to The Hague?

25 A. He called us on the phone.

Page 324

1 Q. So you knew nothing about his arrest until he contacted you from

2 The Hague by telephone. I take it that's affirmative.

3 Now, since he's been in The Hague, what sort of --

4 A. Yes, yes, that's right.

5 Q. Since he's been in the United Nations Detention Centre in The

6 Hague, what sort of contact have you been able to have with him? First of

7 all, other than personal visits, what sort of contact have you had?

8 A. I'm sorry, could you repeat that question.

9 Q. Leaving aside personal visits, i.e. visits to The Hague, what

10 sort of contact have you had with him and how have you had contact with

11 him whilst he's been in the Detention Centre?

12 A. Right. Right. I understood now. We have daily contact by

13 telephone. He calls, and he writes, and we write to him. And sometimes

14 if a day passes without him calling, because he doesn't have a telephone

15 card, we get worried. We start wondering if he's all right, if

16 everything's fine with him. And that means a lot to us, and his letters

17 mean a lot to us. We try hard to give him our support, and we miss him.

18 Q. Now, you know he has pleaded guilty to the indictment containing

19 serious charges, don't you?

20 A. Yes.

21 Q. Bearing in mind your relationship with him as a - and I'm not

22 being impolite when I say this - a relatively young female, have you any

23 concept as to how he came to act as he did, bearing in mind the man that

24 you know?

25 A. No.

Page 325

1 Q. The -- have you noticed, because you seem to have, from your

2 evidence, very regular contact with him -- have you noticed any difference

3 in his general attitude and demeanour between the times before he pleaded

4 guilty and the times after he pleaded guilty?

5 A. I think that he felt great relief when it was all over, and we

6 are happy for him. All we care about is that he be well. The only thing

7 is I didn't quite understand whether you asked me about any difference

8 between the moment when he arrived here and now. Rather, have I noticed

9 any change since then?

10 Q. Well, that -- if that's a matter you can assist us with, please

11 do. Have you noticed such a change? And if so, what was it?

12 A. We were afraid there might be a change after the initial state of

13 shock. We feared that it would not be the man we know, in view of the

14 circumstances, his circumstances. However, the first time we came here to

15 visit, my sister and I, we were happy to see that he remained the same,

16 normal man, the man that we know.

17 Q. And I think in the time that he's been at the Detention Centre,

18 you've been able to visit him on two occasions; is that correct?

19 A. Yes. Yes.

20 Q. It seems, from your evidence, that you have been a person who has

21 been very supportive of him in your personal contacts with him. I may be

22 asking a very obvious question, but is it your intention to continue with

23 that level of support for the future?

24 A. Yes. Yes. Yes. And I will be happy if I'm able to help him,

25 and I'm speaking not only for myself but for my entire family, because

Page 326

1 after all, he lived with us for rather a long time.

2 Q. Thank you for your assistance. If you'd wait there, there may be

3 some more questions. Thank you.

4 JUDGE SCHOMBURG: Thank you, Mr. Morrison.

5 May I ask the Prosecution, are there any questions?

6 [Prosecution counsel confer]

7 MR. YAPA: If Your Honours please, would you give us a few

8 moments just to consider whether questions should be asked.

9 [Prosecution counsel confer]

10 [Trial Chamber confers]

11 MR. YAPA: May I?

12 JUDGE SCHOMBURG: Mr. Yapa, please.

13 MR. YAPA: Thank you, Your Honour.

14 Questioned by Mr. Yapa:

15 Q. Witness, I'm sorry I have to ask a few questions from you. You

16 are distressed at the moment. But it is in respect of the evidence you

17 have given in chief.

18 THE INTERPRETER: Could Mr. Yapa please speak into the

19 microphone. Thank you.

20 MR. YAPA:

21 Q. Witness, I'm sorry that you are in a distressed position at the

22 moment, but I have to ask you a few questions in respect of the evidence

23 that you have given in chief. Do you understand?

24 A. I understand.

25 Q. Yes. Now, you have -- on your testimony, it appears that you had

Page 327

1 a very, very close relationship with the -- with Mr. Dragan Nikolic.

2 A. Yes.

3 Q. Now, here came -- he came to your residence in Belgrade from

4 Vlasenica.

5 A. Correct.

6 Q. Did you know why he came?

7 A. Yes.

8 Q. Yes. Why did he come?

9 A. Because we invited him.

10 Q. You invited him when he was in Vlasenica?

11 A. Yes.

12 Q. Why was the invitation extended, please?

13 A. We had fears regarding his safety. We wanted to give him support.

14 Q. What did the -- why do you speak of safety? If you please, can

15 you explain. Why did you fear for his safety?

16 A. We were afraid that something might happen to him.

17 Q. I'm sorry. I'm sorry, I have to repeat the question. It's not

18 clear. When you say "something might happen to him," because of what?

19 A. I think that he did not feel safe there. He was in poor health.

20 His health was equally poor when he came to stay with us. He had been

21 wounded during the war. And as a matter of fact, he injured his spine

22 while he was staying with us. He could not move for a few days. He could

23 not get up at all. He could not even go to the toilet. My father helped

24 him.

25 Q. Witness, I'm not sure whether I understand you correctly, but let

Page 328

1 me get to another point. Did you know before he came that he had some

2 responsibility in a camp called the Susica camp?

3 A. I only heard about that from the family.

4 Q. Is it to say, then, that in your frequent conversations with him,

5 that he never discussed with you about the Susica camp?

6 A. No. No. No. Definitely not.

7 Q. Thank you. Now, did you know that there was an indictment against

8 him at the time that he was residing with you?

9 A. Yes. While he was residing with us in Batajnica you mean?

10 Q. In --

11 A. Yes.

12 Q. In Belgrade; yes?

13 A. Yes, I understand. Yes.

14 Q. So you knew that there was an indictment against him. Your

15 answer, please, witness. You knew that he -- there was an indictment

16 against him?

17 A. Yes, I heard that.

18 Q. Thank you. How did you address him when he was with you? How did

19 all your family members address him?

20 A. I don't understand what you mean.

21 Q. What name did you call him by, a relationship or what name did you

22 call him by?

23 A. Dobrica. That was our nickname for him.

24 THE INTERPRETER: Interpreters note: It is a personal name, but it

25 also means a very good person.

Page 329


2 Q. Now, in your -- in the course of the conversations, the close

3 conversations that you had with him, did you also know that he had a false

4 identity?

5 A. Did I know that he had a false identity?

6 Q. Yes, that was my question. Yes.

7 A. I don't understand this question. I only knew him as Dobrica,

8 nothing else.

9 Q. Okay. Thank you. Now, you also said that when he was there, that

10 he was extremely helpful to your family.

11 A. Correct. Correct.

12 Q. And the family members, you yourself and the others, were attached

13 to him.

14 A. Quite attached. Quite attached. We were attached to him, and he

15 was attached to us.

16 MR. YAPA: That will be all, Your Honours. Thank you.

17 Questioned by the Court:

18 JUDGE SCHOMBURG: Only one question: Do you know the name Vidovic,

19 Deputy Chair Vidovic?

20 A. Dobrica Vidovic?


22 A. Yes.

23 JUDGE SCHOMBURG: Who would be this person?

24 A. Dobrica. Dobrica.

25 JUDGE SCHOMBURG: This would be -- I heard from the interpretation

Page 330

1 booth that it could be used as a kind of nickname and it means at the same

2 time a good person. So it would be a given name.

3 What was the name of Dobrica, the full name he used at that time?

4 A. We still call him Dobrica until the present day.

5 JUDGE SCHOMBURG: Okay. I have no further questions.

6 Judge Agius? This is not the case.

7 Any further questions?

8 Then we have to thank you for coming to The Hague, giving us your

9 testimony. And we wish you a safe trip back home to your country. You

10 are excused.

11 May I ask the usher, please, to guide the witness out of the

12 courtroom.

13 THE WITNESS: [Interpretation] Thank you.

14 [The witness withdrew]

15 JUDGE SCHOMBURG: May I ask now, Mr. Morrison, what is your

16 intention how to proceed.

17 MR. MORRISON: I'm going to, with Your Honours' indulgence, adopt

18 the course, the alternative course that was canvassed this morning of not

19 calling Mr. Nikolic at this moment but calling him, as it were, prior to

20 have closing proceedings of the Defence case. He will give testimony, and

21 he will therefore, of course, even at that stage - and he understands

22 this - be liable to be asked any questions that are thought appropriate.

23 That being the -- the case, there is nothing further that the

24 Defence wish to put before the Trial Chamber today. All other matters are

25 going to be reserved until the final and closing speech.

Page 331

1 JUDGE SCHOMBURG: But we have to clarify some issues. Attached to

2 your sentencing brief, we find Annex B and Annex C. Is it your intention

3 to tender one of those documents?

4 MR. MORRISON: Your Honour, it is. I was going to deal with those

5 matters in a global sense at the conclusion of the case. That was my

6 intention. If Your Honour has another way that you wish it to be done, I

7 would be pleased to cooperate.

8 JUDGE SCHOMBURG: I think it's necessary before hearing the final

9 arguments of both parties to know what is in evidence and what is not.

10 Therefore, we have to decide today on this question.

11 MR. MORRISON: So be it.

12 The statements at Annex B consist of the following: The first is

13 Milica Nikolic; she is the defendant's mother.

14 JUDGE SCHOMBURG: [Microphone not activated]

15 THE INTERPRETER: Microphone for the Presiding Judge, please.


17 May I ask the Prosecution: Related to this statement of Milica

18 Nikolic, are there any objections? Is there a need of cross-examination?

19 MR. YAPA: Your Honour, so far as the contents of that statement

20 goes, it appears that it is more in relation to the character of

21 Mr. Dragan Nikolic. So that extent, we would not be having any questions.

22 JUDGE SCHOMBURG: Thank you. Then this document is admitted into

23 evidence as Exhibit 4. Correct me if I'm wrong.

24 THE REGISTRAR: Your Honours, this will be Exhibit D1.

25 JUDGE SCHOMBURG: We can also call it D1. There is no problem.

Page 332

1 D1.

2 Please continue. What about the next statement, Fikret Zukic.

3 MR. MORRISON: Well, Your Honour, that's the evidence of

4 Fikret Zukic, nicknamed Like. Again, that's a short, self-evident

5 statement, and the Defence wish to simply tender it for the purposes of

6 its contents.

7 JUDGE SCHOMBURG: The Prosecution?

8 MR. YAPA: May it please Your Honours, in respect of this

9 statement, we have a serious concern. Your Honours will be pleased to see

10 in the penultimate paragraph there is a statement to the effect that he

11 did not cause any incidents. Now, that goes beyond speaking of his

12 character, and it is contrary to the plea tendered by the accused, by

13 Mr. Nikolic. He did not cause any incidents.

14 MR. MORRISON: Your Honour, the purpose of this statement is not

15 to suggest that he didn't cause any incidents at Susica. That would be

16 nonsense. He's pleaded guilty to the indictment. The plain reading of

17 the statement is this: "I knew Dragan Nikolic" - past tense - "as a

18 person not inclined to violence. He did not cause any incidents, he

19 always associated with persons of all nationalities and religious

20 beliefs." It can plainly only relate to his behaviour before Susica. And

21 that's the purpose to which it is tendered. It's not suggested that it

22 otherwise applies.

23 JUDGE SCHOMBURG: Having heard the parties on this, and having

24 briefly conferred, this statement is admitted into evidence as document D2

25 for the reasons that admission into evidence does not mean any kind of

Page 333

1 assessment of the content of the statement. The weight attached to such a

2 document will be decided by the Bench.

3 [Trial Chamber confers]

4 JUDGE SCHOMBURG: Let's now turn to the next document, a statement

5 of Majstorovic Milenko.

6 MR. MORRISON: Again, that is the statement of someone who knew

7 Dragan Nikolic and speaks of his acquaintanceship before the war and

8 speaks of his acquaintanceship and companionship before the war and his

9 work at the -- it says "Azpro." I think that must be a typographical

10 error. It must be Alpro.

11 There are then some personal observations, which obviously have

12 very limited evidential weight from Mr. Milenko. And for the most

13 part -- well, really the whole of the purpose of the statement is to

14 underline his character before the conflict and simply to, in the

15 penultimate paragraph on page 1, to point out that for Dragan Nikolic's

16 brother it was very hard to understand the accusations. Again, that's not

17 a matter, I don't think, of any dispute.

18 JUDGE SCHOMBURG: Before I hear the Prosecution on this, I wanted

19 to re-emphasise that document D2 was admitted into evidence, taking into

20 account that it does not go to prove a matter of the acts and conduct of

21 the accused.

22 So may I hear the Prosecution on the next statement.

23 MR. YAPA: I thank Your Honour. This is before Your Honours as a

24 statement of the mother of Mr. Dragan Nikolic. We have no intention of

25 cross-examining this witness. We do not want the witness before. And we

Page 334

1 don't have any objections to the admission of this statement.

2 JUDGE SCHOMBURG: Then this statement is admitted as D3 into

3 evidence.

4 We now turn to Annex C.

5 MR. MORRISON: Your Honour, the purpose of this annex was simply

6 to show that there was in fact an incident in Vlasenica in March of 1995

7 as a result of which Dragan Nikolic was injured and suffered the injuries

8 set out in the Court findings. I don't imagine that the fact of the

9 incident is contentious, bearing in mind it's a matter which is easily

10 verifiable through the court records. The only object is -- of putting

11 that in was if it is going to be of moment to the Court, the reasoning why

12 he might have left Vlasenica. That was one factor. As I understand it,

13 the reasoning behind the defendant's leaving of Vlasenica in 1996 is not a

14 matter which weighs with the Tribunal. I will be corrected if I am wrong.

15 JUDGE SCHOMBURG: So in conclusion, you don't want to tender these

16 documents.

17 MR. MORRISON: If I am correct in my understanding, no, I don't

18 need to tender the documents.

19 JUDGE SCHOMBURG: Anything else you want to tender, to add to your

20 case related to the sentencing, assisting the Trial Chamber in determining

21 the appropriate sentence?

22 MR. MORRISON: [Microphone not activated]

23 JUDGE SCHOMBURG: With the caveat, of course, that you already

24 indicated that it's your intention to call your client as a witness at a

25 later point in time.

Page 335

1 And I can't see no objections by the Prosecution to doing so.

2 MR. MORRISON: For completeness, I'll deal also with the

3 certificate, which is right at the end of Annex C, which is simply a

4 certificate which is -- I think it's a matter which is agreed as between

5 the Prosecutor and the Defence, but prior to his plea in this case there

6 was no criminal record relating to Dragan Nikolic. That simply

7 underscores that.

8 I see nods across the room.

9 JUDGE SCHOMBURG: I think it's an agreed fact.

10 MR. MORRISON: It is an agreed fact.

11 JUDGE SCHOMBURG: Can we take it, Mr. Yapa?

12 Just for the record, it's not reflected on the record, Mr. Yapa's

13 answer.

14 MR. YAPA: We do agree that there is no prior report of any

15 criminal activities. Thank you.

16 MR. MORRISON: So subject to the caveat that Your Honour has

17 already identified -- that is the calling of Dragan Nikolic to amplify

18 matters of concern to this Trial Chamber, which I do not wish to deal with

19 before he gives his testimony -- what will remain is a closing address by

20 the Defence, which will not raise any new issues but simply, I hope,

21 underscore and amplify the issues which are already before the Trial

22 Chamber.

23 JUDGE SCHOMBURG: It should be re-emphasised that apart from the

24 formal testimony, no doubt the accused, Mr. Dragan Nikolic, enjoys the

25 right to have the final word without any questioning by the parties,

Page 336

1 whatever he wants to tell the Judges, he is entitled to do so at the very

2 end of the case.

3 As I said earlier, with the caveats expressed, Dr. Grosselfinger

4 is prepared to start and to give her -- as a summary of the report we all

5 have read already before at quarter past 12.00.

6 The trial therefore stands adjourned until 15 minutes past 12.00.

7 MR. MORRISON: Your Honour, may I just clarify something - I am

8 sorry - before you rise?


10 MR. MORRISON: Is -- I emphasise, this is purely for personal

11 convenience, because of another meeting that I'm going to this afternoon.

12 Is it the Trial Chamber's intention to rise today at 1.00 or 1.30?

13 JUDGE SCHOMBURG: We have to stop at 1.00 because Judge Agius has

14 to continue with his case, so it was only an exception yesterday.

15 However, the intention is to have this 65 ter (I) meeting as soon as

16 possible. And may I know, did you already check whether it's -- would be

17 feasible for you to have this hearing, say, at 2.00?

18 MR. MORRISON: For a Rule 65 ter meeting in this case at 2.00?


20 MR. MORRISON: Yes, I think that would be perfectly feasible.

21 JUDGE SCHOMBURG: Would it be convenient for the Prosecution as

22 well?

23 MR. YAPA: No inconvenience.

24 JUDGE SCHOMBURG: Then may I also ask the registrar to be prepared

25 to participate in this meeting in order to take minutes.

Page 337

1 So once again, the trial stays adjourned until quarter past 12.00.

2 --- Recess taken at 11.52 a.m.

3 --- On resuming at 12.17 p.m.

4 JUDGE SCHOMBURG: Please be seated.

5 Before we start, we just this moment received, if I see it

6 correctly, an addendum to the report of the Max Planck Institute. And as

7 it's a matter of time, we will hear the expert already tomorrow. The

8 first copies before they are officially filed, may we please -- one copy

9 per party, may we distribute it right now. May I ask the usher to give

10 one copy to both parties.

11 I learnt that we later on would get a full updated version. It's

12 now on to exchange some pages where there is new research done, going in

13 far more details of the sentencing practice.

14 I think we can continue now. May I ask the usher to escort

15 Madam Dr. Grosselfinger into the courtroom.

16 [The witness entered court]

17 JUDGE SCHOMBURG: Madam Grosselfinger, may I first ask you to

18 give the solemn declaration.

19 THE WITNESS: I solemnly swear -- I solemnly declare that I will

20 speak the truth, the whole truth, and nothing but the truth.


22 Questioned by the Court:

23 JUDGE SCHOMBURG: Thank you very much. And in addition, I

24 have -- please be seated. The Bench has to thank you for volunteering

25 today. We all know that your testimony was scheduled only for Thursday,

Page 338

1 but you were flexible and kind enough to be prepared to give us a short

2 summary of your expertise today, of course with the caveat: Should there

3 be any question, you would need to go back to your fundamental documents,

4 then we would call you again on Thursday. But we appreciate that you are

5 working really on this ad hoc basis in this ad hoc Tribunal. Thank you

6 for the flexibility, and the floor is yours.

7 A. Thank you, Your Honours. I would like to draw to your attention

8 first that the report which that you have provided me a copy of my

9 submission is not complete in that neither the appendices, the indices at

10 the end, nor the amended table of contents and the subsequent submission

11 of Annex number 6 is not present, that is, Annex number 6 is considered

12 relevant documents which I consulted in the process of the preparation of

13 this report. It's approximately a page and a half single spaced and it

14 consists of largely relevant UN documents. And I must say that I -- well,

15 they were at the tail end. I consider them not the least important, but

16 perhaps amongst the most important because they framed the line of my

17 study, my inquiry, and therefore I would certainly want you to be having

18 them in your possession when you're making your deliberations, and perhaps

19 those who are going to be questioning me would also want to have them

20 because I don't consider them less important, I consider them actually

21 amongst the most important things included in the -- in the report.

22 JUDGE SCHOMBURG: Absolutely. And there should be not the

23 slightest doubt that the parties and the three Judges read -- have already

24 read in great detail, your report, including all appendices. It is only

25 due to the fact that it was more or less ad hoc that I provided you with

Page 339

1 this, and may I ask the usher to give also the annex to the expert.

2 Thank you.

3 A. Good. Okay. I feel much better.

4 JUDGE SCHOMBURG: We appreciate it. So, please.

5 A. Yes, I'm not sure exactly how you'd like me to proceed, if you'd

6 like me to go through the relevant parts of the report, or how is it

7 you'd like to carry on.

8 JUDGE SCHOMBURG: Taking into account that we all have read your

9 report, it would be the best if you would highlight those parts you think

10 are of utmost important, and in short, to summarise your report.

11 A. Well, I think I should perhaps start with the manner in which I

12 came to know this case more fully. After having read the relevant

13 documents of the pleading and the transcript of the pleading hearing, I

14 proceeded to go to the Detention Unit to speak with the accused for

15 approximately 9 hours inside of the Detention Unit, on a period of two

16 different days within the same week. I was assisted by interpreters in

17 this endeavour, and received cooperation from the institutional staff to

18 the maximum, as well as to the accused.

19 At the outset, my discussions with the accused started in a

20 personal way in order to put him in a capacity to cooperate and to

21 understand what was expected of him in this endeavour. We spoke initially

22 about his personal life, which is reflected in the latter portion of the

23 report. We began with the history of his family, the people who reared

24 him and influenced him in his early years, in considerable detail.

25 Then we talked about his own personal, his individual experience,

Page 340

1 his schooling, where he went to school, how he adjusted inside of his

2 community. Then we moved into adulthood, which was really the bulk of our

3 time, and focussed on his relationships in the community, his conflicts,

4 if any, within the community. My concern was to see if there was in his

5 previous experience by his own definition a combative difficult

6 personality, if he was in constant conflict or if he was politically

7 involved, what were his values, what was moving him.

8 To be candid, I did not find anything particularly fruitful

9 there. The other thing I did query him about somewhat and subsequently,

10 very much more sternly was about the consumption of alcohol and the role

11 that alcohol played in his life, other health factors as well; his

12 religious affiliation and the depth of his religious affiliation; his

13 intensity of community involvement and what did that actually mean, and

14 basically uncovered that he was going to work most of the day and enjoying

15 himself the rest of the evening without really engaging in deep community

16 affairs.

17 One of the things that came out which was important was the impact

18 of the loss of his father early in his life and the burden that it placed

19 upon him, the pressure that he felt, his worry about his ability to

20 contribute financially to his family, and his stepping aside or making

21 space for his sister to take his -- what financial opportunities or work

22 opportunities were available to him.

23 Then we moved to the more difficult areas, which were discussing

24 the instant offences. And our framework was the fact that he had already

25 pled guilty to these offences, and one would not, therefore, expect him to

Page 341

1 dispute his culpability. I was looking to see further if he had previous

2 relationship with any of these individuals, what was the basis of the

3 relationship, and if there was any animus that existed that he could

4 identify, that he could explain. And we went one by one with the name of

5 every single person. He did have recognition of many of these persons, as

6 the report would indicate.

7 THE INTERPRETER: Could you please slow down a little for the

8 interpreters.

9 THE WITNESS: I apologise. He did have recognition of a conflict

10 with one particular individual, but absent that, we could find no strong

11 grounds for picking on these people or selecting them out.

12 I also queried him very strongly about his eating, sleeping, and

13 drinking habits during the course of the three months in question. I was

14 looking to see if there were great anomalies, especially in his sleeping

15 habits, sleep deprivation, failure to be properly fed or eating properly

16 that would cause sugar imbalances, other kinds of organic anomalies that

17 might contribute to judgement or failure of good judgement. And while he

18 admitted that he drank enough and more in the evenings, he himself did not

19 feel that -- he didn't think that it played a significant factor and did

20 not think it was an exculpating kind of a condition.

21 He did not attempt to avoid responsibility or taking

22 responsibility when we discussed each of these. And I thought that was

23 also important to recognise.

24 We also discussed at length his movements after, how he came to

25 know about his indictment or he didn't come to know about his indictment,

Page 342

1 and his movements and his presence in other communities.

2 One of the things I think I was most interested in finding was his

3 own explanation for his behaviour: Could he explain it, did he have any

4 understanding of why he carried on as he did. He was very reflective in

5 this moment. He told me that he had thought about it an awful lot, and

6 that he really could not explain to himself why he had done what he had

7 done without saying he didn't do it; agreeing he had done it, but that it

8 represented a dark side of his character which he did not know previously

9 had existed; that he acknowledged that it did in fact exist, and that he

10 was in wonder as to where it emerged from. He was -- seemed to be

11 genuinely befuddled as to what the explanation for such behaviour could

12 be, almost looking to me for offering him an explanation for this in some

13 theory or something he thinks I might know.

14 So then we talked about -- and over the course of the interviews,

15 I think we had nine hours. But there were two interviews in the first

16 week and then in the second week I saw him again after I had interviewed

17 other folks in the field. And in that time, he had a chance to think.

18 Much of our talk focussed on what could be done now, if anything. And in

19 this, he had already done some homework and some thinking. First he

20 acknowledged that this was -- these events were extremely grave and that

21 in many respects whatever could be done would be very small and so late in

22 time that perhaps those who might benefit from it or might see or hear of

23 it might take it as sincere or serious, or too little entirely too late.

24 So that did concern him. It concerned him in the sense that it would be

25 seen as crocodile tears, as disingenuous, as self-seeking and

Page 343

1 self-serving, more than focussed on the needs of the persons whom he had

2 harmed. So that part was very much in his forefront in terms of his

3 thinking about how he could do something at this stage.

4 We discussed possible things that could be done, some of

5 which -- he came up with some ideas of his own. And I detail in the

6 report his notion of how he might approach -- begin to approach persons

7 already he believes in the Vlasenica community who are interested or have

8 expressed concern for him, and joining with them and in a sort of a

9 snowball approach move out from those individuals to try and discover

10 other persons who would be willing to talk to him or accept

11 responsibility -- some communication from him of an apologetic nature and

12 as a means of reconciliation.

13 One of the -- we talked about some modalities that do exist in

14 other places. I don't know if you want me to go into the details of that.

15 JUDGE SCHOMBURG: I don't think it's necessary at this point in

16 time, because it's reflected in your report, and it's for the President

17 and the Bureau of this Tribunal later to determine what is necessary.

18 A. Okay.

19 JUDGE SCHOMBURG: Thank you.

20 A. So other than -- we discussed also his attitude towards receiving

21 punishment, what his punishment should be. And beyond punishment, what

22 else he might do after the punishment phase is over.

23 I'm not sure, Your Honours, what it is you'd like to hear from me

24 next that is not, for instance, contained already in the report.

25 JUDGE SCHOMBURG: If you could, please, be so kind and go in some

Page 344

1 details in the way as you indicated in your report that he showed remorse,

2 because you mentioned it already in the beginning of your report; however,

3 we can only take into account those facts that are in evidence. We know

4 that we will hear words from the accused himself. Nevertheless, it might

5 be helpful if you go in some details of your discussion of his approach

6 towards victims, the relatives.

7 A. With regard to the specific victims that were announced in the

8 indictment, I asked him in each and every case if he felt any sorrow or

9 remorse or regret for having harmed this particular individual. In each

10 case, he said yes. There was one exception in which he felt that he had

11 had some provocation, that he had received misinformation about this man's

12 intentions towards his sister, and that operating on that he had taken on

13 these behaviours. He subsequently realised that the man's protestations

14 were probably accurate and that he himself, the accused, had been misled

15 into thinking that this man was going to undertake some sexual violence

16 against his sister. Absent that, all the others he expressed up front at

17 the very -- at the beginning of the questioning his remorse for having

18 harmed them.

19 I asked him how he felt that remorse and for how long he had felt

20 that -- that shame, that guilt, and he could go back to the beginning of

21 those feelings from the moment that the camp was closing down. Now,

22 initially, that started, he said, as contemplation of the possible

23 consequences for his behaviour, but it continued to bother and haunt him

24 and visit him. He said it intensified, especially when he went to live in

25 Serbia. He was much on his own, and living in his own thoughts and in his

Page 345

1 own head, and then it did bother him. Mentally, he said that was probably

2 the lowest point in all the years from the time the offences occurred

3 until the day in which I saw him, that that was the most difficult time,

4 and in part, because he found in his own mind no way out, no modalities

5 for doing anything about that.

6 He also talked about this in terms of the fact that when he came

7 to plead, that it released in some ways a burden that he had felt, almost

8 a double-edged sword in the sense of not just wanting the burden to be of

9 benefit to him, because he now was feeling better, but also with a

10 recognition that he -- well, he had -- was feeling better. He alone was

11 not entitled to feel better but he still had a duty to the victims and the

12 survivors to try and find a way to make them also feel better, that he

13 just couldn't plead and have a lighter -- have a lighter conscience of it,

14 that all the work was not yet done.

15 When he -- we talked about -- he expressed also on several

16 occasions willingness to meet around the table to discuss, and that was

17 one of the ways that he was most strong, in that he wanted it not to be an

18 experience which the victims would perceive as enforced or imposed but

19 something that was coming genuinely from his heart and also at a time when

20 it would not advantage him in any legal way.

21 JUDGE SCHOMBURG: Judge Agius, do you have any additional

22 questions for the time being?

23 [Trial Chamber confers]

24 JUDGE SCHOMBURG: So then it would be first for the Prosecution.

25 Do you have any questions?

Page 346

1 [Prosecution counsel confer]

2 MR. YAPA: With Your Honours' permission, I have a few questions

3 of Dr. Grosselfinger.

4 JUDGE SCHOMBURG: And we take it that we are all aware of the

5 caveat that if need may be, Dr. Grosselfinger has to go back to the

6 underlying documents. So please take this into account when questioning.

7 MR. YAPA: I thank Your Honour. My questions will be more general

8 than specific, so I'm sure she'll be in a position to answer my questions.

9 Questioned by Mr. Yapa:

10 Q. Dr. Grosselfinger, I must express thanks to the report that you

11 have submitted to at the request of Their Honours. You have done an

12 exhaustive study. But I have a few questions about the report itself.

13 Now, going into finding the necessary data for your report, your exercise

14 was just a matter of gathering information; was it correct?

15 A. Well, in the sense that I was not explicitly asked to make an

16 interpretation, yes, I mean, what's here is.

17 Q. Yes. In fact, would it be correct to say that it was more or less

18 a fact-finding mission?

19 A. Yes and no, except for one thing. I think really, Mr. Yapa, the

20 question really is, to look at his socialisation was to look at the manner

21 in which not only he was reared but the manner which he has conducted as

22 an adult person, and I took that also to mean the capacity or incapacity

23 to admit error and to see what, if anything, you could do once you've

24 realised you've made a mistake. So I had a broad interpretation of

25 socialisation, not just what happens to you until your parents send you

Page 347

1 out the door.

2 Q. Thank you. But now, what you have done in the report is placed

3 the facts that you were able to gather, but you have not given, if I may

4 say so, an opinion, an expert opinion.

5 A. I was not asked to make a recommendation or so on sentencing or

6 anything of that nature.

7 Q. Yes. What you would hope is that the Court will take into account

8 the facts that you have gathered and form Their Honours' own opinion, in

9 respect of the facts that you have found out.

10 A. Well, my assumption is that they don't know enough personal

11 information about him. They were interested in a great deal of personal

12 information, which would not -- has not been elaborated in other ways. So

13 that my inquiry was to go and find out much field information that they

14 might have been interested in knowing.

15 Q. That's right. Thank you. So you ventured upon finding out from

16 the accused as to his conduct at the camp, subsequent conduct, and conduct

17 after the plea of guilt.

18 A. Well, maybe I wouldn't use the word "conduct." Some of it was

19 inquiry about his whereabouts. Some of it was his own assessment of his

20 thinking, his state of mind. Some of it was observations of other persons

21 as to how he was behaving or what they thought they could see from outside

22 of him. So it wasn't all -- it wasn't all conduct. Some of it was, you

23 know, self-assessment, self-reflection.

24 Q. Yes.

25 A. "Attitude" maybe would be a word I could use.

Page 348

1 Q. So far as Mr. Dragan Nikolic is concerned, whatever he has said

2 now, at least most of it, is after reflection.

3 A. In the passage of time, yes.

4 Q. Yes. Now, what I want to say is that now he reflects as to why he

5 conducted in a particular way sometime in the past.

6 A. Well, I -- that's all I had was a snapshot of him in a two-week

7 time frame; that's true.

8 Q. In reflecting upon the events that took place or the incidents

9 that he took part in, he is now expressing remorse, at least he expressed

10 so to you.

11 A. Yes, sir.

12 Q. Did you have the opportunity of raising any questions with the

13 victims or the witnesses in this case?

14 A. Yes, I did, actually. There were several things. First of all, the

15 Judges explicitly told me not to contact the victims themselves, that it

16 was their understanding that they were quite frail and concerned and

17 distressed, and that I should not do so directly. And therefore, I did not

18 do that. In fact, one of the ways I attempted to learn about the victims

19 was by speaking with you, calling you, if you remember, and we had a short

20 discussion, and after which you urged me that I should speak with the

21 Victim/Witness Unit.

22 Q. Thank you. Now, there are certain matters in respect of which he

23 has given answers in which he attempts to tell you that he himself could

24 not understand as to why he conducted himself in relation to certain

25 incidents at the camp.

Page 349

1 A. Yes, he said it was a mystery to him to this day.

2 Q. If the witnesses have spoken of his deliberate, voluntary acts in

3 relation to assaults on them, and if that conduct reveals that it was not

4 a question of his acting involuntary, that it was a voluntary conduct on

5 his part, what would be the position?

6 A. Well, first of all, I think that, Mr. Yapa, I'm not in a position

7 to challenge the integrity of any witnesses that have -- who at the time I

8 prepared my report I've heard none of, and I wouldn't seek to undermine

9 the veracity of their statements.

10 Q. Thank you. I'm not questioning you on the material that you have

11 placed, because these are in relation to the answers that you have got

12 from the accused and the witnesses. I conclude by saying that you placed

13 this material so that Their Honours can form their own opinion.

14 A. I didn't speak to any witnesses that I know of, Mr. Yapa.

15 Q. Yes. May I omit that word, "witnesses," but you did speak to

16 people who could speak to the antecedents of the accused, maybe the

17 parents, other.

18 A. I didn't construe them to be witnesses in the sense of the

19 Tribunal sense. You mean persons who --

20 Q. Yes.

21 A. -- who knew him, who were witness in the sense that they lived

22 around him.

23 Q. Quite correct.

24 A. Yes.

25 Q. Yes.

Page 350

1 A. They were persons that claimed familiarity with him.

2 [Prosecution counsel confer]

3 MR. YAPA: That would be all. I thank Your Honours.

4 JUDGE SCHOMBURG: Thank you, Mr. Yapa.

5 The Defence, please.

6 MR. MORRISON: Your Honour, thank you. I'm particularly conscious

7 of the time. By my watch, it's eight minutes to 1.00. I can confidently

8 say that if I started today, I would not conclude by 1.00, and there are

9 matters that I need to go into.

10 I also want to contemplate the questions asked by the OTP, as I'm

11 not fully sure that I yet understand them, or what -- the reasoning that

12 lay behind them. Before I ask any questions, I want to make sure that I

13 can deal with those issues in a satisfactory way. The long and the short

14 of it is that I'm going to ask that the caveat be applied that was earlier

15 suggested and that I have a chance to ask questions of Dr. Grosselfinger

16 as was originally intended on Thursday of this week.

17 JUDGE SCHOMBURG: Would you be prepared to start with the line of

18 questions today, or how shall I understand your remarks?

19 MR. MORRISON: I'm sorry, I must be being particularly obtuse.

20 I'm not quite sure what Your Honour is asking. To start, as it

21 were, the examination today and simply stop it at 1.00?

22 JUDGE SCHOMBURG: Yes, because the background of the question is

23 the following: In case there might be a very specific question from your

24 side, it would be appropriate that the expert could be prepared,

25 especially on this specific question, and therefore it would be

Page 351

1 appropriate to start today and then if need may be, to continue on

2 Thursday, as scheduled.

3 MR. MORRISON: Your Honour, may I make a counter-suggestion, that

4 I reduce into writing those questions which are likely to require

5 Dr. Grosselfinger to fully consult her documents and make sure that she

6 has them at the latest by tomorrow lunchtime, and I can give both

7 yourselves and the OTP copies of those questions. They won't be the only

8 questions I ask, but they will enable the witness to prepare so that I

9 won't be asking questions today to which she feels she does not have a

10 comprehensive answer.

11 [Trial Chamber confers]

12 JUDGE SCHOMBURG: I think it's a fair suggestion, and we -- I have

13 to repeat -- I think it's a fair suggestion, and therefore we can continue

14 this way.

15 Dr. Grosselfinger, you are prepared to act based on these prepared

16 questions in writing. And of course, if there should be any additional

17 questions, it is -- or it would be for the Prosecution either to add them

18 on Thursday or also to put them in front of the expert witness in writing

19 already today -- tomorrow. Sorry.

20 So then I take it that we interrupt the examination of

21 Dr. Grosselfinger for today. I see the tight schedule, and there are only

22 a few minutes left.

23 Thank you so far for today, and please be prepared to get these

24 questions in writing tomorrow and to continue with your expert testimony

25 on Thursday. However, I can't right now tell you when your expert

Page 352

1 testimony will be continued on Thursday, because I don't know the scope of

2 questions put to the expert witness on sentencing. So therefore, please

3 understand that I can't give you an exact hour when you will be called on

4 Thursday.

5 The same rules apply, of course; you are entitled to follow the

6 proceedings in the public gallery during tomorrow's session.

7 Thank you for today.

8 May I ask the usher, please, to escort Dr. Grosselfinger.

9 THE WITNESS: [Interpretation] Thank you, Your Honours.

10 [The witness stands down]

11 JUDGE SCHOMBURG: Then only one final administrative matter: If

12 I'm not absolutely wrong, we did not decide on the 94 bis report provided

13 by Dr. Zepter, at least that is what I heard from the registrar. You have

14 tendered this statement under Rule 94 bis by filing it. Are there any

15 objections by the Defence related to this statement?

16 MR. MORRISON: Your Honour, no. I must be wrong. I was under the

17 impression that we had already indicated that we had no objection.

18 JUDGE SCHOMBURG: I was under the same impression. I only learned

19 right now that it was not yet entered into evidence. Please cross-check.

20 And if it's not yet in evidence, then it's hereby admitted into evidence.

21 And I take it that there is no need of any kind of

22 cross-examination, so ...

23 We'll announce the number when we have cross-checked the

24 documents.

25 Any other issues to be discussed today? I can see no submissions,

Page 353

1 no requests. So we continue with the 65 ter (I) meeting in my office at

2 2.00 sharp, and the trial as such stays adjourned until tomorrow, 9.00.

3 --- Whereupon the hearing adjourned at 12.58 p.m.,

4 to be resumed on Wednesday, November 5, 2003,

5 at 9.00 a.m.