1 Thursday, 4 December 2003

2 [Open session]

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

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Please be seated. The Chamber

6 is going to ask Madam Registrar to call the case, please.

7 THE REGISTRAR: Case number IT-01-47-T, the Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Can we have the

10 appearances for the Prosecution, first, please.

11 MR. WITHOPF: Good morning, Your Honours, good morning, counsel.

12 For the Prosecution, Mr. Daryl Mundis, and I, Ekkehard Withopf, with

13 Ms. Kimberly Fleming.

14 JUDGE ANTONETTI: [Interpretation] Thank you.

15 And now for the Defence, please.

16 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President; good

17 morning, Your Honours. I'm Edina Residovic, Defence counsel for

18 General Enver Hadzihasanovic, together with my colleague Stefane Bourgon

19 and our legal assistant, Mirna Milanovic. Thank you.

20 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

21 behalf of the accused Kubura, Fahrudin Ibrisimovic and Rodney Dixon, with

22 our legal assistant, Nermin Mulalic.

23 JUDGE ANTONETTI: [Interpretation] Thank you. The Chamber bids

24 welcome to all the people present, the Prosecution, the Defence, and the

25 accused, and the interpreters, which are helping us with the translation,

1 of course, the registry, and Madam Usher.

2 Before calling in the witness, the Chamber is going to respond to

3 the question raised yesterday by the Defence. Just wait a moment, please.

4 The question raised by the Defence. But the Prosecutor wishes to

5 intervene first.

6 MR. WITHOPF: Your Honour, just for clarification: We are not

7 intending to tender the prior statement into evidence. We only want to

8 use it to refresh the memory of the witness.

9 JUDGE ANTONETTI: [Interpretation] Very well. But nevertheless,

10 the Chamber is going to respond to the questions raised by the Defence.

11 Yesterday, the question raised was the following: Can the

12 Prosecution, during the examination-in-chief of a witness, ask questions

13 while submitting to him at the same time a document drafted during a

14 previous examination? Regarding this important question, the Rules of

15 Procedure and Evidence, in 90(F), provides for the Chamber to control the

16 modalities of the examination of the witness and the presentation of

17 evidence. So it is the Chamber that controls the modalities. The Chamber

18 must make sure that the procedure is effective for the establishment of

19 the truth, and of course it must avoid any waste of time.

20 Regarding the modalities of the examination, they are not strictly

21 defined in the Rules of Procedure and Evidence. Nevertheless, 89(F)

22 envisages that the Chamber will apply the Rules of section 3, entitled

23 "evidence" -- "Rules of Evidence." It is also specified that in the case

24 that the Rules are mute, the Chamber will apply such Rules so as to

25 achieve, in the spirit of the Statute and the interests of justice, an

1 equality of arms.

2 Therefore, the Chamber notes that the procedure applied by the

3 Prosecution had as its essential aim, as indicated a moment ago, to

4 refresh the memory of the witness. Actually, the witness was interviewed

5 last year on facts that took place in 1993, which means almost ten years

6 ago, and during the previous case, this evidence was collected four years

7 ago. So of course there is a need to refresh the memory of the witness.

8 The jurisprudence of several common-law countries allows the witness, in

9 order to have his memory refreshed, to have at his disposal notes and

10 allows him also to look at his written statement before his oral

11 testimony. This is the jurisprudence in great Britain, in the United

12 States, and in several common-law countries.

13 What is the practice applied in this Tribunal? On certain

14 occasions, it was allowed to use the testimony collected during a previous

15 interview by the OTP during the examination. However, it should be noted

16 that the Rules are totally silent regarding this issue. Therefore, how

17 can we refresh the memory of a witness without juxtaposing his previous

18 statement? And it is the opinion of the Chamber that the Prosecution has

19 the possibility of communicating with the witness prior to the hearing and

20 can therefore refresh his memory then. And an examination conducted with

21 prudence can also, through its questions, refresh the memory of the

22 witness.

23 Consequently, the Chamber, which needs to control the examination,

24 rules that to the extent to which the examination-in-chief is oral, the

25 previous statement should not be presented to the witness during that

1 stage and be used to possibly correct his answers. Therefore, it is not

2 possible to produce that type of document during the examination-in-chief.

3 Concerning, more specifically, yesterday's hearing, during which

4 the testimony -- or rather, the statement was shown to the witness, the

5 Chamber notes that the question put to the witness had to do exclusively

6 with the signature on the document, his signature on the document.

7 Therefore, the Chamber rules that the Prosecution used this document

8 yesterday strictly respecting the conditions envisaged by section 3 of the

9 Rules of Procedure and Evidence, and therefore, there is no need to

10 further discuss the issue.

11 We will now, therefore, call the witness who testified yesterday

12 and who is going to continue his testimony, unless the Prosecutor wishes

13 to intervene. I am listening. You have the floor.

14 MR. WITHOPF: Mr. President, Your Honours, just one question.

15 Will there be a written decision following in that respect?

16 JUDGE ANTONETTI: [Interpretation] To the extent to which the

17 request was made orally, we also respond to it orally. But you can refer

18 to the transcript to see what was said. The Defence?

19 MS. RESIDOVIC: [Interpretation] Mr. President, we would like to

20 thank the Trial Chamber for making such a ruling regarding such an

21 important issue at the very beginning of trial, so that this should not be

22 an obstacle during the continued proceedings.

23 JUDGE ANTONETTI: [Interpretation] Thank you. Yes, Mr. Prosecutor.

24 MR. WITHOPF: Just for clarification: Does this decision apply

25 for prior statements only, or does it also apply for different documents?

1 JUDGE ANTONETTI: [Interpretation] No. It only applies to prior

2 statements collected within the framework of an investigation conducted by

3 the Office of the Prosecutor. Other documents, obviously, may be produced

4 during the examination.

5 Madam Usher, will you have the witness brought in, please.

6 [The witness entered court]

7 JUDGE ANTONETTI: [Interpretation] Good morning, sir. Are you

8 hearing the interpreter?

9 THE WITNESS: [Interpretation] Good morning. Yes, I am.

10 JUDGE ANTONETTI: [Interpretation] You may be seated. Yesterday we

11 completed the examination-in-chief, and now we should begin today with the

12 cross-examination on the part of the Defence.

13 So I give the floor to Defence counsel.

14 WITNESS: FRANJO BATINIC [Resumed]

15 [Witness answered through interpreter]

16 Cross-examined by Ms. Residovic:

17 Q. [Interpretation] Good morning, Mr. Batinic?

18 A. Good morning.

19 Q. I am attorney Edina Residovic and I am defence counsel for

20 General Enver Hadzihasanovic. I hope you had a good rest and you will be

21 able to answer my questions.

22 A. Yes.

23 Q. You said yesterday that you come from the village of

24 Donja Visnjica; is that right?

25 A. Yes.

1 Q. The village of Donji Visnjica was in the local commune of Lasva?

2 A. Yes.

3 Q. The local commune of Lasva belonged to the municipality of Zenica?

4 A. Yes, it did.

5 Q. Zenica is the largest regional centre in the area, isn't it?

6 A. What do you mean, regional centre?

7 Q. The centre in the Lasva area.

8 A. It was the centre of the district. Yes, whatever you needed, you

9 went to Zenica, but Lasva really belonged to Busovaca, Zupa.

10 Q. When you say Zupa, you mean the parish, the church parish?

11 A. Yes.

12 Q. But as you said, for anything that you needed, you went to Zenica?

13 A. Yes, I did.

14 Q. You went to secondary school in Zenica too, didn't you?

15 A. Yes.

16 Q. You told us yesterday that for a brief time you were working in

17 Zenica.

18 A. Yes.

19 Q. Other inhabitants of your local commune, the village of Lasva and

20 the surrounding hamlets, also went to Zenica for various needs they had?

21 A. Yes, they did.

22 MS. RESIDOVIC: I should now like to ask the witness to be shown a

23 map. It is Exhibit DH3, to the witness. Can it be shown on the ELMO,

24 please. DH3 is the exhibit number. Could the witness be given a

25 black-and-white version of this same map for the ELMO.

1 Could the technical booth show Exhibit DH3 on the screen, please.

2 As far as I can see, we all can see the picture on the screen, and the

3 witness has an identical map, only in black and white.

4 Q. Mr. Batinic, you have the black-and-white version of that map next

5 to you. On the screen you have it in colour, and to your side, you have

6 it in black and white. It is the same map. Is that right?

7 A. Yes, it is.

8 Q. Mr. Batinic, would you be kind enough to take a pointer to show

9 for all of us, with greater precision, the things you spoke about

10 yesterday.

11 MS. RESIDOVIC: [Interpretation] Could the usher give the witness a

12 pen or a pointer. Could we have the map on the screen, please.

13 Q. Could you mark on the black-and-white copy of the map

14 Donja Visnjica, that you come from. Could you mark that, if you can see

15 it, with number 1. Number 1. Just put number 1 there.

16 A. [Marks]

17 Q. Could you mark with number 2 --

18 A. I wish I could take you down there and show you everything where

19 all these things happened. As far as the map is concerned, everything is

20 fine. But if necessary, I'll take you down there and show you how

21 everything was.

22 Q. Thank you very much for your offer, but I don't think that the

23 Trial Chamber could go on the spot. So could you please show us the

24 things that you know and you recognise on the map.

25 MS. RESIDOVIC: [Interpretation] Could now the map on the ELMO be

1 shown for the benefit of all the participants on the screen. I was asking

2 the technical department that to substitute the DH3 map with the

3 black-and-white map that the witness is marking. Could it be shown on the

4 screen, please, with the help of the ELMO. Is that possible now? Yes.

5 A. Is what possible?

6 MS. RESIDOVIC: [Interpretation] No. I'm asking the technical

7 booth. Can we see the map on our screen now, the black-and-white map?

8 JUDGE ANTONETTI: [Interpretation] Can you hear me? At the

9 technical level, I'm afraid there's no technician to manipulate the

10 buttons so it has to be done at the witness box. Very well. Continue.

11 MS. RESIDOVIC: [Interpretation] I'm not very good with technical

12 matters, but thank you for your assistance.

13 Q. Would you please mark on the map that you have to your right, with

14 the number 1, the location of Donja Visnjica, if you recognise it. Will

15 you put a number 1 there.

16 A. [Marks]

17 Q. Can you point to the place where the railway station is in Lasva.

18 Mark it with a number 2.

19 A. [Marks]

20 Q. Is that the Lasva railway station?

21 A. Yes. Near the Bosna River.

22 Q. Tell me, please: Do you know where the shop is where your HVO

23 unit had its base or headquarters?

24 A. The shop in Lasva?

25 Q. Let me be more precise with my question. Next to the Lasva

1 railway station, was there a store?

2 A. There were several. One was an Upi, and there was a coffee bar.

3 Q. In that shop next to the coffee bar, was that where your HVO unit

4 was based?

5 A. No. We did drop in sometimes to have a drink there.

6 Q. Could you indicate on the map the spot in Lasva where the

7 checkpoint was where you, as members of the HVO, were manning.

8 A. On the way out of Lasva, to the right, where the bus station used

9 to be.

10 Q. Could you indicate that on the map and mark it with the number 3.

11 A. [Marks]

12 Q. Thank you. Could you find on the map, and mark with a number 4,

13 the hamlet of Kegelj, in the village of Dusina.

14 A. [Marks]

15 Q. Would you please find on the map, and mark, the house of

16 Drago Rados at Brdo, just below Petar's [phoen] house. Could you mark

17 that with a number 5 please, on the map.

18 A. [Marks]

19 Q. I should like to tender this marked map into evidence, as it shows

20 the location the witness referred to yesterday.

21 JUDGE ANTONETTI: [Interpretation] Very well. Madam Registrar,

22 will you give this an exhibit number.

23 THE REGISTRAR: -- DH6.

24 JUDGE ANTONETTI: [Interpretation] Thank you.

25 MS. RESIDOVIC: [Interpretation].

1 Q. Mr. Batinic, is it true that in Drago Rados's house, was the place

2 where the HVO members of Dusina gathered and met, the squad or group?

3 A. They may have met there sometimes. I did what I was ordered. The

4 commanders would be there.

5 Q. Very well. You just tell me as much as you know.

6 On the map, we saw certain villages and hamlets of your local

7 commune. Tell me, please: Is it true that those villages and hamlets are

8 separated by small hills or hillocks, that they are separated by higher

9 elevations?

10 A. Yes, because Donja Visnjica is in the valley, and then above it,

11 there's Vranica Stijene, and Brdo is also in a valley, and then there's a

12 hill just above it. But then Gornja Visnjica is there to the left.

13 Q. From the Brdo hamlet, it is not possible to see the houses in the

14 Kegelj hamlet because of the hills?

15 A. No. You can't see them. You can only see the Kalajdzic's houses.

16 No, you can't see them.

17 Q. From the hamlet of Brdo, you can't see your houses in

18 Donja Visnjica and Lasva either, can you?

19 A. No, I can't.

20 Q. Your brother lived in Lasva, near the crossroads; is that right?

21 A. Yes, that's right, at the crossroads, the junction.

22 Q. That crossroads or junction, whatever you like to call it, is very

23 important for communication towards Travnik, Busovaca, and so on?

24 A. Sarajevo, Zenica, Kakanj as well.

25 Q. Yes, that's right. Is it very important?

1 A. Yes, it is.

2 Q. Is it also true that after April 1992, in Sarajevo, you couldn't

3 take the main road because the Serb forces had occupied parts that lay

4 south of Visoko?

5 A. Well, I didn't have any need to go to Sarajevo, so I can't really

6 answer your question.

7 Q. If the block -- if the road via Busovaca were blocked too, would

8 the only way of reaching Kacuni and the parts reaching to Sarajevo, the

9 road via Lasva and Dusina?

10 A. You mean on foot or if you're driving in a vehicle?

11 Q. Well, both walking or driving. If the road from Kaonik to

12 Busovaca were blocked.

13 A. I know the road across Dusina. As to that other road, there's one

14 going via Lugovi and Gornja Visnjica you can take -- you can walk there

15 and from Dusina where the Bosniak population lives. But I would usually

16 go via Bula [phoen]. That's the road I know best.

17 Q. All the roads you mentioned are mountain roads, aren't they?

18 A. Yes, they are. Well, a tractor can move along them too, for

19 example, and horse and cart.

20 Q. You said yesterday that from 1992 onwards you were a member of the

21 HVO; is that right?

22 A. 1992, the 8th of April, yes.

23 Q. You belonged directly to the unit in Lasva, didn't you?

24 A. Yes.

25 Q. And your commander was Zvonko Rajic?

1 A. That's right.

2 Q. Your unit, Mr. Batinic, was not a component part of the

3 HVO brigade called Jure Francetic from Zenica although Lasva did in fact

4 belong to Zenica; is that right?

5 A. Yes, it is.

6 Q. Your superior command was in Busovaca, in fact?

7 A. Yes, it was in Busovaca.

8 Q. Your unit received orders only from your command in Busovaca; is

9 that right?

10 A. Yes. Well, the commanders know that up there better than I do.

11 Q. Yesterday you testified and said that the relations with the

12 BH army deteriorated at the beginning of 1993; is that right?

13 A. Yes, it is. Well, there was tension before that too, before the

14 26th of January, while they stationed themselves at Usce at the mouth we

15 knew what was being prepared but that's how it was.

16 Q. So you were aware of the fact that the Main Staff had issued an

17 order according to which combat readiness of all HVO units should be

18 raised to the highest alert, red alert. Were you aware of that?

19 A. Well, we gave the Bosniaks rifles to stand guard together with us.

20 They didn't have any weapons at one point in time. And then afterwards,

21 of course, we had to protect and defend ourselves from them, when the

22 Serbs pulled out from the barracks in Zenica, of course, we gave us [as

23 interpreted] rifles to stand guard with us.

24 Q. That was in 1992, wasn't it?

25 A. Yes, that's right.

1 Q. You were also issued an order to prevent any movement on the part

2 of the Muslim forces; is that right?

3 A. No. We were just defending and protecting - how shall I put

4 this? - our own homes, households, because had there not been a conflict,

5 we would of course stayed there. So yes, we were there to defend and

6 protect.

7 Q. You were also ordered to take transports of weapons and munitions

8 from the Muslims passing through your area?

9 A. I don't know about that. I'm not informed of that.

10 Q. Mr. Batinic, let's go back a little way to the conflict in

11 Busovaca that you mentioned a moment ago. As a unit from Busovaca, you

12 were well aware of the fact that around the 20th of January, armed

13 conflicts broke out between the HVO and the BH army?

14 A. Not the 20th of January. It was two or three days before what

15 happened in Lasva took place. And allegedly, the man was killed up there.

16 Was it Ivica Gaj or whatever his name was. And that's when the conflict

17 actually started.

18 Q. Well, those conflicts in Busovaca gave rise to tension in your own

19 villages; isn't that right?

20 A. Well, probably it is, yes.

21 Q. A part of the refugees, the Muslim population, went via Lasva to

22 Zenica, from the Busovaca area; is that right?

23 A. No, no. The Croatian population left, those of them who had

24 anyone in Zenica to stay with. And I had my mother and my late father, so

25 I could have sent my people there, but we were too late, so we didn't go

1 there. So we stayed there in our houses when this happened.

2 Q. Mr. Batinic, not far from your own village lies the village of

3 Merdani; is that right?

4 A. Yes, it is.

5 Q. And from the Kegelj hamlet, this is at a distance of approximately

6 two and a half kilometres; is that right?

7 A. Well, give or take.

8 Q. I said roughly.

9 A. Well, you can't say roughly when, as I say, Brdo was two or three

10 kilometres away, maybe less, whereas Merdani are further. You have to go

11 via Dolovi and Crni and so on.

12 Q. Give us a rough estimate, then.

13 A. I would say five kilometres, approximately.

14 Q. All right. Fine. So Merdani was an exclusively Muslim-populated

15 village, was it not?

16 A. Yes.

17 Q. And I'm sure you know that on the 25th of January, early in the

18 morning, the HVO attacked Merdani by opening artillery fire which could be

19 heard in Dusina and Lasva; isn't that right?

20 A. I'm not aware of that.

21 Q. Well, I assume you know --

22 JUDGE ANTONETTI: [Interpretation] Mr. Prosecutor.

23 MR. WITHOPF: Your Honour, the Prosecution objects against such a

24 line of questioning. It has to do with the tu quoque principle, which is

25 not a proper defence.

1 JUDGE ANTONETTI: [Interpretation] Very well. The Defence, would

2 you please ask questions of the witness which took place after the events

3 he's testifying to. Those were your questions. So the Prosecution feels

4 that those questions are not relevant. So could you concentrate your

5 questions on what the witness testified to in response to questions put to

6 him by the Prosecution. And so your cross-examination must focus on the

7 direct facts testified to by the witness and as to the events of the 23rd

8 of January. You're going on to the 25th of January, which was posterior

9 to that. So this is a valid objection.

10 Therefore, please continue your cross-examination, but focus your

11 questions precisely on the matters covered by the Prosecution which you

12 would like clarification on, or if you're questioning what the witness

13 said in response to the Prosecution's questions.

14 MS. RESIDOVIC: [Interpretation] Your Honour, before I continue

15 with my cross-examination, may I be allowed to say something and explain

16 my method of cross-examination, which I have followed so far?

17 JUDGE ANTONETTI: [Interpretation] Yes. Please go ahead. I'm

18 listening.

19 MS. RESIDOVIC: [Interpretation] Mr. President, this is not the

20 method of defence to which the Prosecution has alleged. On day one, you

21 cautioned us and told us how a cross-examination ought to be conducted, in

22 what direction, also in the direction which is of interest to the Defence.

23 I am the Defence counsel for an army general and corps commander, and that

24 incorporates 24 communes and has 16 brigades. It is the position of the

25 Prosecution that the Bosniak forces attacked this village. There

1 are -- the series of questions that I am posing speak of the context and

2 situation in which a high-ranking commander is operating. So the strategy

3 of combat operations, the way -- the reason why they are being conducted

4 is in direct context to the questions that I am asking. So I should like

5 to ask you, Mr. President, to allow me to ask certain questions in that

6 regard and within that framework. I shall now go on and follow your

7 instructions and guidance.

8 JUDGE ANTONETTI: [Interpretation] Thank you. You know that

9 according to the Rules of Procedure and Evidence, if a question gets far

10 away from the principle matter, the authorisation of the Trial Chamber

11 must be demanded in order to go ahead with questions of that type. But I

12 now give the floor to the Prosecution. Let me just say that the Defence

13 has been asking to ask its questions of the witness with regard to the

14 general context, as it has to do with command, and so the Defence would

15 like to know if the unit that the witness was a member of received orders

16 or not, and if that unit participated in other combat. Because we have

17 learnt that on the 25th of January, that is to say, two days after the

18 fact, there was artillery fire in a certain locality. So the Defence

19 would like to receive confirmation from the witness of that fact, so that

20 is in the more general context. So it is at the level of this general

21 context that the Defence is asking that particular question or line of

22 questioning.

23 So does the Prosecution have any objections to make with respect

24 to context?

25 MR. WITHOPF: The Prosecution has an objection and in response to

1 what Defence counsel just said. The Prosecution defined the scope of the

2 examination-in-chief at the very beginning of the examination-in-chief to

3 the murder of Zvonko Rajic and to the mistreatment of the witness in the

4 Zenica music school. The questions Defence is about to ask are going far

5 beyond this defined scope.

6 MS. RESIDOVIC: [Interpretation] Yes, Your Honour, but they don't

7 extend your guidelines and restrictions and Rule 90(H), which controls the

8 mode of cross-examination and the direction it takes. So I wanted to

9 explain to you the context of my line of questioning so far. And I shall

10 continue with my questions, which have to do with the 26th of January now.

11 JUDGE ANTONETTI: [Interpretation] Well, if the 26th of January can

12 concretise the general context of events that took place on the 23rd, then

13 the Chamber authorises you to ask questions with respect to the 26th of

14 January. Of course, I would like to indicate to the Defence that the

15 witness on several occasions did answer by saying that he was a simple

16 witness and that with respect to command matters, strategic matters, and

17 so on, that was over his head. He has said that several times. So of

18 course you can ask him questions, but his level of competence as being a

19 simple soldier is such that you run the risk of asking questions to which

20 he cannot answer. But anyway, continue.

21 MS. RESIDOVIC: [Interpretation] Thank you.

22 Q. Mr. Batinic, you said that on the 26th, in the morning, you were

23 in the house of Rados Drago?

24 A. Not Drago. Perica.

25 Q. Rados Perica is Rados Drago's brother, is he?

1 A. Cousins. Anyway, they're related.

2 Q. So their houses are close by in the hamlet of Brdo; is that right?

3 A. Yes, that's right.

4 Q. Together with you in the same house was Ivo Filipovic and

5 Srecko Kristo; is that right?

6 A. Yes, that's right. Ivo Filipovic was there. Just a moment,

7 please. Yes, Srecko was there too.

8 Q. Was anybody else there with you in Rados Perica's house?

9 A. There was Perica, there was myself, there was Srecko, and the

10 others turned up later. Rados, Drago was in his own house, spending the

11 night there.

12 Q. Tell me, please: In Drago Rados's house, were there any other HVO

13 members there on that particular morning?

14 A. No. He was there alone. Drago Rados was alone in the house while

15 the fighting was taking place and he was in his own house throughout that

16 time because he stayed on there he left us and he spent the night in that

17 house and happened to be there when we surrendered and decided to leave

18 together. That's when he came out of his house. I'm referring to

19 Drago Rados.

20 Q. Zvonko Rajic, you said, came one hour later; is that right?

21 A. Yes, an hour, hour and a half later. He didn't come alone. Some

22 others came with him. I didn't count how many. But they came together

23 with Zvonko.

24 Q. Could you tell us who came with Zvonko Rajic?

25 A. Well, the soldiers. Do you want names now? Do you want names or

1 what? I can't remember all their names. There was Jozo Kristo, Kreso.

2 Q. Very well.

3 A. Brane.

4 Q. Now, from the house you were in, you were able to see the road

5 leading towards the Rados houses, the road leading towards the hamlet of

6 Brdo; is that right?

7 A. Well, explain this to me, what you mean. Which road?

8 Q. Between the Bosniak houses and the houses belonging to the Rados

9 family, there's a small village lane.

10 A. Well, the village lane goes towards Dolovi and as you come down

11 towards Perica and Drago Rados's house there's another steep slope.

12 Q. I'm asking you whether, from the house you were in, you could see

13 that lane leading towards Dolovi?

14 A. Well, yes, but the house has -- how shall I say, a veranda, a

15 terrace and there's a window there and you can see Rados Pero's house from

16 there.

17 Q. After Zvonko Rajic and the group of HVO soldiers arrived, along

18 this lane you saw a group of BH army members coming towards you; is that

19 right?

20 A. Well, I'm not quite sure about that, because --

21 Q. You saw a soldier of the BH army killed from a sniper, and this

22 was in front of Rados's house?

23 A. No, I didn't see that. The Bosniak soldier, I think his name was

24 Candzic, he died in battle. Perhaps I killed him. I'm not sure. But

25 there was shooting going on. And had he not attacked, he wouldn't have

1 lost his life. But I'm not quite sure that he was killed from that. And

2 you could have investigated that. You could have examined the bullet and

3 established who had killed him.

4 Q. With Zvonko Rajic, did Zeljko Cvijanovic come with him?

5 A. Well, I'm not aware of that. I don't know. He knows best whether

6 he went there or not.

7 Q. So at that point in time, you didn't happen to see

8 Zeljko Cvijanovic?

9 A. Well, some people did come up there via Drljaca and they didn't

10 even come to see us, report to us, all of them. And when they saw us

11 surrender, some of the others withdrew and went back down. There's

12 another little lane there, and they went down to Donja Visnjica, some of

13 them, whereas some of them went down with us, of course. So those of us

14 who fought up there were supposed to go down and reach an agreement, and

15 others joined us on the way.

16 Q. But you personally know Zeljko Cvijanovic from Lasva, don't you?

17 A. Yes, I do, I do know him. He was a colleague of mine.

18 Q. And you knew that he was the only person with an Austrian

19 Winchester sniper?

20 A. Oh, an Austrian sniper. Well, sometimes he'd carry it around with

21 him. How can I explain this? Now, whether he was issued it or wasn't

22 issued it, I'm not quite sure.

23 Q. But you do know that he was the only one of all you HVO soldiers

24 who had that particular rifle?

25 A. Oh, no. No, no. I'm not sure. If I were sure, I would tell you

1 exactly, but I'm not.

2 Q. So you don't know whether other soldiers had that same type of

3 rifle, like the one that Zeljko Cvijanovic had?

4 A. No.

5 Q. No, they didn't. Thank you.

6 You also told us that at one point in time, Zdravka Rados, the

7 wife of Drago Rados arrived; is that right?

8 A. Yes.

9 Q. And you said that from the direction of Dusina she came

10 accompanied by Edin Hakanovic?

11 A. Yes. And a civilian was with her. Edin stayed down there but she

12 came up to us and said, "If you don't surrender they'll kill the

13 civilians."

14 Q. How far from you is that field where Edin Hakanovic remained?

15 A. We were with up there where the plum orchard is, the plum trees

16 belonging to -- well, as the crow flies -- just a moment. Let me think.

17 Five hundred metres. Yes, five hundred, I would say, as the crow flies,

18 in direct line. But if you go through the field, there's a depression

19 there and the fields they were in were Bosniak fields. Well, two, three

20 hundred metres. I'm not quite sure as the crow flies.

21 Q. So it could be two to three hundred metres as the crow flies, you

22 say.

23 A. Zrvanje was the name of the field at Vodica.

24 Q. From the place you were at, you were not able to hear what those

25 civilians were talking about with Edin Hakanovic?

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1 A. No. No.

2 Q. When Zdravka Rados came up to you, she said -- she only said that

3 you weren't to shoot because the Muslim soldiers wanted her to convey a

4 message to you; is that right?

5 A. Just a minute. Could you repeat that question, please.

6 Q. Zdravka Rados shouted out to you and told you not to shoot,

7 because she said she wanted to come up to you, because she had a message

8 for you, that the Muslim soldiers were sending to you.

9 A. Yes, and she did come. But we had stopped shooting before that.

10 We shouted out to each other and we stopped shooting before that, and she

11 came up to us. We saw her.

12 Q. You knew Edin Hakanovic before the war?

13 A. Oh, yes. We were schoolmates. We went to school together,

14 primary school.

15 Q. So you were able to recognise him from that distance from where

16 you saw him., you said approximately two hundred metres as the crow flies?

17 A. Yes, I could recognise him.

18 Q. And Zdravka Rados also told you that Edin Hakanovic was down

19 there; is that right?

20 A. Well, I can't remember whether she actually said that or not now.

21 Q. Zvonko Rajic negotiated with Edin Hakanovic; is that right?

22 A. No. A man came from down there - I can't remember his name

23 now - and we withdrew straight away. I'm not altogether sure who he

24 talked to.

25 Q. But you said yesterday that it had been agreed that the clips be

1 taken out of the rifles, well, not charges, clips. Yes. Yes, clips. And

2 that the rifles be placed on the shoulders and the clips in your pocket,

3 the magazine clips in their pockets and that you were to move to the

4 school; is that right?

5 A. Yes.

6 Q. And you were joined at that point by Drago Rados, who set off

7 together with you?

8 A. Yes. He came out of his house and joined us.

9 Q. At the place you were at, were there some HVO soldiers who stayed

10 on there when you left?

11 A. As far as I know, no, there weren't any. But perhaps there was

12 somebody in front of the house. Everybody left the house. I don't think

13 anybody stayed on, no.

14 Q. So you didn't see anybody --

15 A. Well, they couldn't stay, because we all went together and the

16 Bosniak soldiers were the ones who remained there.

17 Q. So as far as you know, Zeljko Cvijanovic didn't stay there?

18 A. No, he didn't.

19 Q. The body of the killed Candzic was somewhere in front of the Rados

20 houses, is that right, on the road?

21 A. I'm not quite sure where he was, but we did carry it until the

22 army or whoever came to take it over.

23 Q. In the locality of Vodica, as you said, Vodica, you were informed

24 that there were HVO ambushes and the request was made that certain HVO

25 soldiers, together with members of the army, go forward to check that out;

1 is that right?

2 A. No. There's just one of our soldiers who went there,

3 Mijo Ljubicic. He went down there to inform our soldiers to leave their

4 weapons and to gather at one spot and then we would go together to the

5 Ivo Lola Ribar Elementary School. And then when we got to Vodica, there

6 was a report, they had received a report that it was not possible to go

7 down there.

8 Q. It was reported, actually, that in Donja Visnjica there was an HVO

9 ambush; is that right?

10 A. That these soldiers of the 7th Muslim would be captured. Now, who

11 reported that, I don't know. I suppose their command.

12 Q. It was only after that report that the army soldiers asked you to

13 surrender your weapons; is that right?

14 A. No, no. It wasn't surrender; it was taken by force. They took

15 our weapons by force.

16 Q. So soldiers of the army seized your weapons when they heard that

17 there was an ambush in Donja Visnjica?

18 A. Yes. But if that hadn't happened, maybe things would have

19 happened differently. Who knows?

20 Q. You also said yesterday that at one point in time, Zvonko Rajic

21 tried to escape; is that right?

22 A. Yes.

23 Q. Then several soldiers of the army opened fire at him, didn't they?

24 A. Yes, three or four of them who were there. Not of the army. The

25 7th Muslim. They were all together under the command of the BH army.

1 Q. So you certainly saw and heard that several bullets were fired in

2 the direction of Zvonko Rajic by several soldiers; is that right?

3 A. Yes.

4 Q. Yesterday you said that after Zvonko Rajic's death, soldiers of

5 the army tied you up. Is that right?

6 A. After the killing of Zvonko Rajic? Yes, they tied us up.

7 Q. So it was only after Zvonko Rajic had tried to escape and when he

8 was killed that you were tied up; is that right?

9 A. Yes.

10 Q. You also said, Mr. Batinic, that when you reached the school in

11 Lasva, you saw troops and civilians.

12 A. No. I didn't go to the Lasva school. I was going through Dolovi,

13 Polom, the rail tracks, the Usce and the music school. I didn't see the

14 school that day at all.

15 Q. Did you go to Lasva?

16 A. No. Lasva is in the other direction. We took another route on

17 foot.

18 Q. So never for a moment did you pass through Lasva by the school and

19 railway station?

20 A. On the 26th of January, no, I didn't.

21 Q. In addition to the soldiers who were escorting you, you also came

22 across a part of the civilian population and other soldiers?

23 A. We didn't come across civilians. When a -- a couple only when

24 they went from Crna, we -- they were going from Polom we met them at

25 Dolovi. But we didn't meet civilians. We saw them at the mouth of the

1 river when we waited to be transferred to the music school.

2 Q. Yesterday you said that for a moment you saw Batan, your

3 neighbour.

4 A. Yes, my neighbour. He escorted us from Brdo to the confluence of

5 the two rivers. Because those who came from the outside didn't know the

6 road, didn't know the route.

7 Q. You also said that Batan was wearing civilian clothes.

8 A. Yes. He had probably given his uniform to someone.

9 Q. Just a moment, Mr. Batinic. Let us go back. You also told me

10 that your brother had a house close to the Lasva crossroads. Do you know

11 that after the fall of Jajce a large number of refugees reached the area,

12 both Croats and Muslims?

13 A. That house wasn't his house. He got an apartment from his company

14 there. And Croats and Bosniaks came from Jajce and settled in Lasva.

15 Q. They settled in the abandoned houses in the area, didn't they?

16 A. Yes. The houses abandoned by the Serbs. The Croats took those

17 houses. They came from Jajce and Kotor Varos.

18 Q. When you were saying yesterday how you arrived at the music

19 school, you said that some men would go there, some local people.

20 A. One man would come in, a neighbour. I don't have to name him. He

21 was a Muslim. And he recognised me, but I didn't recognise the others.

22 Q. Many of them were not in uniform, so they took parts of your

23 uniforms?

24 A. Yes. Not this one, but the others did. All those who were

25 guarding us down there, they took our boots, vests.

1 Q. You didn't know most of them, nor did you know which unit they

2 belonged to?

3 A. While I was in the music school, they belonged to the 7th Muslim.

4 That I know. As for those who came, I don't know them.

5 Q. So while you were in the music school, some other men entered

6 wearing civilian clothes, and some in uniform, that you didn't recognise?

7 A. Yes. Some gave us cigarettes. Some were good guys. We are not

8 all the same.

9 Q. Mr. Batinic, I should now like to ask you something else. You

10 know that in the canton court in Zenica, proceedings are ongoing against

11 your neighbour, Edin Hakanovic?

12 A. Yes, I know that.

13 Q. The court called you to testify in that court in May 2002; is that

14 right?

15 A. Yes.

16 Q. And the investigating judge who interrogated you was Ahmetovic?

17 A. Yes, I remember, Ahmetovic. Go on with your questions.

18 MS. RESIDOVIC: [Interpretation] Could the witness now be given his

19 statement.

20 THE WITNESS: [Interpretation] May I ask something in that

21 connection, please? May I?

22 MS. RESIDOVIC: [Interpretation] It is up to the Court, up to the

23 Chamber to decide, so don't ask me. The statements are both in English

24 and Bosnian. Here's a copy for the witness.

25 Q. Mr. Batinic, you personally signed this statement, didn't you?

1 A. Yes, it is my signature.

2 Q. Judge Ahmetovic, before you made your statement, cautioned you

3 that it is your duty to tell the truth and that you would be held

4 responsible for perjury.

5 A. But may I say something? I wasn't in a mentally good condition at

6 the time. I'm better now. I feel better. I'm well now.

7 Q. The judge also called your wife, Lidija, to testify about your

8 mental condition.

9 A. Yes, my former wife. She is not my wife any more.

10 Q. You said at the time that for some time you felt psychologically

11 unstable and that you simply don't remember anything any more; is that

12 right?

13 A. Yes, I did say that I didn't remember. I told the judge. He

14 called me -- let me see. Why did he call me? Whether I had seen

15 Hakanovic down there in the meadow, and I told him then that I wasn't sure

16 whether I had seen him. But now I remember. I'm fine now. I remember.

17 Q. So you told the judge that you didn't see Hakanovic Edin on that

18 day?

19 A. I wasn't sure.

20 MS. RESIDOVIC: [Interpretation] As the witness --

21 THE WITNESS: [Interpretation] But what I have been saying here

22 these past few days, of that I'm 100 per cent sure.

23 MS. RESIDOVIC: [Interpretation].

24 Q. Mr. Batinic, your former wife stated that you had some

25 psychological problems for four years prior to that hearing. Is that

1 right?

2 A. Before that hearing, for four years, you can't say that. How

3 could you say that? I was a member of the Army of the Federation. How

4 could I have been a member if I hadn't been mentally all right? Because a

5 soldier has to be all right.

6 Q. But you're undergoing treatment, aren't you?

7 A. Yes, but I'm treating myself.

8 Q. Thank you.

9 MS. RESIDOVIC: [Interpretation] Your Honours, I should like to

10 tender this statement too into evidence as a Defence Exhibit.

11 JUDGE ANTONETTI: [Interpretation] The Prosecution, regarding the

12 admission of this document, which was produced during the

13 cross-examination by Defence counsel. Is there any objection against the

14 admission of this document into evidence?

15 MR. WITHOPF: Your Honour, we have no objection.

16 JUDGE ANTONETTI: [Interpretation] Very well. In that case, we are

17 going to give this document an exhibit number, Madam Registrar, please.

18 THE REGISTRAR: The exhibit number is DH7, and the English

19 translation is DH7/E.

20 MS. RESIDOVIC: [Interpretation].

21 Q. So, Mr. Batinic, when you were examined by the judge, though you

22 were cautioned to tell the truth, you were not telling the truth about the

23 events?

24 A. Will you tell me what is the falsehood that I uttered? Just ask

25 me a question and tell me which was not -- what was not true.

1 Q. Is it true that you told the judge that you don't remember any of

2 the events that you experienced in the past war?

3 A. I remembered, but I couldn't remember all the details. But now I

4 remember everything. I can again repeat a hundred times the things I said

5 yesterday and today, because that is how they were, how they happened.

6 MS. RESIDOVIC: [Interpretation] Thank you, Your Honours. I have

7 no further questions for this witness.

8 JUDGE ANTONETTI: [Interpretation] Thank you. It is a quarter past

9 10.00. We would normally adjourn at 10.30 for a break, but I assume that

10 the Prosecution has some questions in re-examination, so I give the floor

11 to the Prosecution.

12 MR. DIXON: Your Honour --

13 JUDGE ANTONETTI: [Interpretation] Unless, of course, Mr. Kubura's

14 defence wishes to intervene.

15 MR. DIXON: [Previous translation continues] ... Like the previous

16 witness he only deals with matters prior to the 1st of April, 1993, which

17 is the time when Mr. Kubura is not charged for any incidents before that

18 time. No questions for him on behalf of Mr. Kubura. Thank you.

19 JUDGE ANTONETTI: [Interpretation] Thank you. So I give the floor

20 to the Prosecution now.

21 MR. WITHOPF: Your Honours, in this case we have no questions in

22 re-examination.

23 JUDGE ANTONETTI: [Interpretation] Very well. In that case, the

24 testimony of Mr. Batinic is over. The Chamber wishes to thank this

25 witness for coming and for testifying and for answering the questions of

1 both the Prosecution and the Defence, and we wish you a happy journey

2 home, and we hope you will be able to catch your plane. Thank you.

3 Madam Usher, will you please escort the witness out of the

4 courtroom.

5 [The witness withdrew]

6 JUDGE ANTONETTI: [Interpretation] Mr. Prosecutor, is there another

7 witness has been envisaged? Has he arrived? Is there a delay? We

8 haven't been informed of the situation.

9 MR. WITHOPF: Mr. President, Your Honours, we anticipate that the

10 witness will arrive at Schiphol airport in 15 minutes. We anticipate that

11 it will take the witness at least one hour and a half, if not even longer,

12 to arrive here at The Hague. We anticipate that the witness will be

13 available for his testimony at some point in time after noon today.

14 JUDGE ANTONETTI: [Interpretation] Normally the hearing was

15 scheduled until 1.45 p.m., so if he arrives in the afternoon, that will be

16 after the hearing. Unless you are suggesting that we could continue the

17 hearing, but unfortunately, this afternoon the courtroom is occupied by

18 another case.

19 [Trial Chamber and legal officer confer]

20 JUDGE ANTONETTI: [Interpretation] Are you sure that he will not

21 arrive before 1.45? Because we can wait up until that time without any

22 problems.

23 MR. WITHOPF: We anticipate that the witness will be around about

24 12.00 or 12.30.

25 JUDGE ANTONETTI: [Interpretation] Very well. Then we can begin

1 with the examination and continue it tomorrow, in view of these material

2 facts, can the Defence wait until noon for the witness to arrive? No

3 problems? Very well. We are going to adjourn, and as soon as the witness

4 arrives, the Prosecutor will inform us and we will resume the hearing when

5 the witness arrives. Thank you.

6 [Trial Chamber and legal officer confer]

7 JUDGE ANTONETTI: [Interpretation] Just a moment, please. I wish

8 to specify that for practical reasons, it would be best for everyone to

9 come back at noon. If the witness arrives earlier, you will be informed;

10 if not, we'll all be here at noon.

11 --- Recess taken at 10.18 a.m.

12 --- On resuming at 12.17 p.m.

13 JUDGE ANTONETTI: [Interpretation] Before bringing the witness, I

14 will have two remarks to make. Yesterday, the Defence conveyed to us that

15 it provided the registry with documents, and the documents were returned

16 to them because they couldn't be translated. I therefore ask the Defence

17 when it intends to produce documents, to indicate to the Registry that

18 they are urgently needed, because they are to be produced in the debate

19 and that they should have priority for translations. And if you do so

20 early enough, because normally you know which documents you intend to

21 tender, please tell the Registrar that these documents will be tendered

22 into evidence, and then, of course, they will translate them straight

23 away. This is simply to facilitate things and to avoid being in the

24 situation we were in yesterday when we had to wait for the translation of

25 a document to decide whether we would admit it or not. That is my first

1 remark.

2 The second has to do with the Prosecution. You told us the day

3 before yesterday, or yesterday - I don't quite remember - that you

4 intended, in January, to call an expert witness who is a general. As you

5 know, in accordance with Rule 94 bis, when an expert witness drafts a

6 report, that report has to be given to the Defence, and I understand that

7 you did so. But then also the Chamber needs to fix a time period for the

8 Defence to make any observations, if it has any, in accordance with the

9 provisions of 94 bis, to inform the Chamber whether it accepts the

10 statement, whether it wishes to cross-examine, or if it challenges the

11 quality of the expert or the competence of the expert.

12 Therefore, I give you up to the 12th of January, 2004, to let us

13 know what your observations are regarding the expert testimony and the

14 report of the expert witness. Do we agree? So we are now going -- yes,

15 please, Ms. Residovic.

16 MS. RESIDOVIC: [Interpretation] Mr. President, we understand and

17 fully agree with the time limits. We would just like to ask the

18 Prosecutor to provide us with this expert report in the Bosnian language

19 as well, as soon as possible, so that our client, General Hadzihasanovic,

20 could work on it with us.

21 JUDGE ANTONETTI: [Interpretation] Very well. If I understand,

22 this report has not yet been served on the Defence.

23 MR. WITHOPF: Mr. President, Your Honours, the report has been

24 served twice to the Defence some weeks ago, without the signature of the

25 military expert, about a week or so ago with the signature of the military

1 expert. It's exactly the same expert report, urgent translation into

2 B/C/S has been requested. It will be available in the very near future

3 and it will be handed over immediately once available.

4 JUDGE ANTONETTI: [Interpretation] And it will be ready about when?

5 MR. WITHOPF: We anticipate within the next eight to ten days, the

6 translation into B/C/S I'm talking about.

7 JUDGE ANTONETTI: [Interpretation] Very well. Because according to

8 Rule 94 bis, as soon as the Defence has been served with the report, it

9 has 30 days to convey its remarks. So we were saying about the 12th of

10 January, because this expert has been envisaged for the 16th, 17th, or

11 18th of January, I think?

12 MR. WITHOPF: It's the 26th to the 28th of January, if needed, for

13 three days.

14 JUDGE ANTONETTI: [Interpretation] I see. So the 26th. So that

15 corresponds to the Rules. So I give you until the 12th of January, 2004.

16 Yes, Ms. Residovic.

17 MS. RESIDOVIC: [Interpretation] Mr. President, we have already

18 informed you that we'll be filing a request for the assessment not to

19 accept the statement of our client in the Blaskic case. The expert report

20 relies considerably on that statement, and that is why we wish to

21 underline once again that we will very shortly file this motion so that

22 our objections regarding the expert report will be linked to the

23 determination of the Court regarding the acceptability of our client's

24 testimony in the Blaskic case.

25 JUDGE ANTONETTI: [Interpretation] On that point, which has already

1 been raised but not formally, as we don't have a motion, does the

2 Prosecution envisage redacting from the report everything that has to do

3 with the previous statement of the accused? Because the Defence is

4 announcing its intention to file a motion to -- not to accept the prior

5 testimony of our client. So the question to the Prosecution is whether,

6 in order to save time, the Prosecution intends to redact the paragraphs

7 referring to this previous statement.

8 MR. WITHOPF: Your Honours, the Prosecution does not intend to

9 redact such portions of the witness statement. First of all, it's the

10 expert's witness report; and secondly, as we already announced in the

11 course of the Pre-Trial Conference, once the motion is filed, we will

12 respond to enable the Trial Chamber to make a considered legal decision on

13 that issue.

14 JUDGE ANTONETTI: [Interpretation] Which means that once the motion

15 has been filed, we will have the response of the Prosecution, and there is

16 a risk that the witness will not be able to come on the 26th of January,

17 unless a decision is made in due time. In that case, we will have to

18 postpone that witness to a later date, because we're already in December.

19 Time will be needed for the motion, the response to the motion, the

20 Chamber to decide on a matter of such importance regarding previous

21 testimony. It's quite probable that the 26th of January will not be the

22 date when the witness will be able to be heard.

23 Therefore, this may even go to the Appeals Chamber, and in that

24 case, this expert witness will not be heard on that date. Do you follow

25 the problem?

1 MR. WITHOPF: I certainly do. We understand the problem. However

2 we invite the Defence file to file its motion at the earliest opportunity

3 so we can respond very soon and in the near future.

4 JUDGE ANTONETTI: [Interpretation] And the Defence will only file

5 it once it has the B/C/S translation, so it depends on you again. So as

6 you're saying that we will have it in ten days, that will be the 14th or

7 15th of December by then, so we really do have a problem there. And

8 therefore, I believe that it will be difficult to hear that witness on the

9 26th of January. Yes you have the floor if you wish.

10 MR. RE: Thank you, Your Honour. Can the Prosecution make it

11 quite clear: In general, Dr. Reinhardt, in his report, refers in one

12 small section to the previous testimony of the two accused. It is easily

13 excisable from the report. It is only part of the basis on which he forms

14 his opinion, and in the Prosecution's submission he can still give his

15 opinion with or without that in. He can be questioned either way: Would

16 that have affected your opinion? And he can still give his testimony in

17 accordance with the timetable.

18 In the Prosecution's submission, it doesn't matter whether that

19 portion is in or out of his report. But the Prosecution is not in the

20 position to redact it because it is not the Prosecution's -- it's the

21 Defence's -- sorry -- it's the expert's report, not ours, not ours to

22 touch. If Your Honours have decided before, it goes out, we just say we

23 don't rely on that. If Your Honours haven't, I'm sure we can deal with it

24 as we go without worrying about the Appeals Chamber. Because if it goes to

25 the Appeals Chamber, the experience has been it can be many, many, many

1 months before such an issue is decided.

2 So in the Prosecution's submission, the expert can give his

3 evidence, either with or -- in or out. It doesn't matter that much to the

4 Prosecution as to whether it's in. The actual use which may be made of

5 that evidence and how it can be used is a different matter to whether or

6 not the Prosecution -- whether or not the expert has used it in coming to

7 part of his opinion. The Prosecution may be submitting that the evidence

8 which the accused gave in other cases can be used against them on the

9 question of guilt. We may be. That has nothing to do with

10 Dr. Reinhardt's report. It's just one of the matters, the fact that

11 they've said something is just one of the matters which the expert has

12 looked at.

13 JUDGE ANTONETTI: [Interpretation] The solution to me appears to be

14 found in Rule 94 bis(B)(iii). It says: "If the parties challenge" - in

15 this case, the Defence - "the qualifications of the witness as an expert

16 or the relevance of all or parts of the report, and if so it will indicate

17 which parts."

18 Then being informed by the challenge of one party, the Chamber may

19 order the redaction of the passages in question. When those passages will

20 be excised from the report. And the Prosecution will question its witness

21 only on the basis of paragraphs which have not been redacted and will not

22 be able to ask questions on the passages left out. Would that suit the

23 Defence? To avoid all loss of time. Because, as you know, you also have

24 to contribute to the efficiency and the speedy nature of the proceedings.

25 MS. RESIDOVIC: [Interpretation] Mr. President, we also do not wish

1 unnecessarily to delay the proceedings, nor to postpone the hearing of the

2 witness, and that is why we fully agree with your suggestion. At the same

3 time, we should like to inform the Trial Chamber that within five days

4 after receiving the Bosnian version, we will officially be filing a motion

5 not to allow the use of our client's testimony in other proceedings in

6 this case.

7 JUDGE ANTONETTI: [Interpretation] Very well. So then we will wait

8 for that motion and we will certainly find a solution that will be

9 satisfactory for both the Defence and the Prosecution.

10 Can we have the witness brought in now, please, Madam Usher.

11 [The witness entered court]

12 JUDGE ANTONETTI: [Interpretation] Madam Witness, would you first

13 tell me whether you can hear the interpretation.

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

15 JUDGE ANTONETTI: [Interpretation] Now, will you give me your name

16 and surname, please, first and last name.

17 THE WITNESS: [Interpretation] My name is Milica Kegelj.

18 JUDGE ANTONETTI: [Interpretation] And your date of birth, please?

19 THE WITNESS: [Interpretation] The 21st of August, 1966.

20 JUDGE ANTONETTI: [Interpretation] What is your profession?

21 THE WITNESS: [Interpretation] At the moment I'm working as

22 personal assistant to the European mission of the police in Sarajevo in

23 Bosnia-Herzegovina.

24 JUDGE ANTONETTI: [Interpretation] What is your domicile?

25 THE WITNESS: [Interpretation] My mother and father live in

1 Busovaca, so I spend my weekends there, but I have an apartment in

2 Sarajevo, so I haven't got an actual domicile or residence, home.

3 JUDGE ANTONETTI: [Interpretation] Would you now, please, take the

4 solemn declaration that you're being shown by the usher.

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

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

7 WITNESS: MILICA KEGELJ

8 [Witness answered through interpreter]

9 JUDGE ANTONETTI: [Interpretation] Thank you. You may be seated.

10 The Prosecution is going to start off by asking you questions, and we

11 shall have to adjourn the hearing at 1.15. So we have 45 minutes, or

12 rather, the Prosecution has 45 minutes. And if it takes 45 minutes, then

13 we can perhaps end today and have the cross-examination as well; if not,

14 then the witness will have to come back tomorrow. But let me give the

15 floor to the Prosecution for the examination-in-chief.

16 MR. RE: Yes. Thank you, Your Honours.

17 Examined by Mr. Re:

18 Q. Ms. Kegelj, I'm going to ask you some questions about what

19 happened in Dusina in January 1993, and some experiences you had as an

20 interpreter for the ECMM in 1993 in your meetings with General Alagic.

21 First, in January 1993, where were you living?

22 A. I was living in a joint household with my parents and brother in

23 Dusina.

24 Q. And were you working at the time?

25 A. No.

1 Q. To facilitate proceedings, I intend to tender into evidence,

2 Your Honours, two large photographs of the village of Dusina, one being an

3 overhead shot and the other being a closer-in shot. I've shown the

4 photographs to the witness in the few moments I had to speak to her before

5 coming into court, and I have two large blown-up photographs which I can

6 give to Your Honours and we have the others which will be in Sanction,

7 which will be on the screen. We don't have seven copies of this and it

8 will be very unlikely we'll be able to fine seven large colour photographs

9 of this. So if Your Honours are content with that for the moment, I'll

10 proceed that way.

11 JUDGE ANTONETTI: [Interpretation] Very well. Could you please

12 hand the photograph to us. Show it to the Defence first and then bring it

13 to me.

14 MR. RE: Your Honour's microphone isn't on.

15 JUDGE ANTONETTI: [Interpretation] Madam Usher, will you please

16 place the photographs on the overhead projector.

17 MR. RE: Your Honours, they are -- I can activate those in

18 Sanction and show the witness and everyone at the same time. I will come

19 to that -- if Your Honours can excuse me, I will come to that in a moment.

20 I also -- the Prosecution also wishes to tender into evidence at the

21 moment a large map of the Central Bosnia region, which I will also use

22 with this witness. I have one large mounted copy for the Court and the

23 requisite number of photocopies for everyone else here of the map. It's

24 following the Prosecution's Pre-Trial numbering system, it is PT1502 in

25 our pre-trial exhibit list numbering system. If Your Honours wish to

1 follow that, it would be Exhibit number P1502. So I tender that into

2 evidence.

3 JUDGE ANTONETTI: [Interpretation] The registrar will give us a

4 number. Madam Registrar, can you give us a number for the big map.

5 THE REGISTRAR: Exhibit P1.

6 MR. RE: And so that the record is clear as to what we've

7 tendered, the Prosecution has tendered a composite of three maps which are

8 series 473, 474, and 475 of Travnik, Zenica, and Bugojno, with a

9 cross-section across all three, which covers all the crime scenes alleged

10 in the third amended indictment.

11 Q. Ms. Kegelj, you told us that you were living in Dusina in January

12 1993. We're going to put a photograph on the screen which will be -- I

13 apologise?

14 JUDGE ANTONETTI: [Interpretation] The Defence.

15 MS. RESIDOVIC: [Interpretation] I should like to ask my learned

16 colleague of the Prosecution, before he commences his examination-in-chief

17 of Ms. Kegelj, to tell us when these photographs were taken of Dusina,

18 which we have just been shown, because the events in the indictment are

19 dated 1993, and we don't know when these shots were taken. So could the

20 Prosecutor inform us thereof. Thank you.

21 MR. RE: They were taken by the Dutch forensic crime-scene people

22 from a helicopter in April 2002. Unfortunately, we don't have any

23 contemporary photographs of Dusina. This is to show where things were, as

24 opposed to the state of things in 1993.

25 JUDGE ANTONETTI: [Interpretation] Please proceed.

1 MR. RE: Your Honour has -- the registrar has given one exhibit

2 number. There are actually two photographs. I wish to refer to them

3 separately. Do Your Honours wish them to have two exhibit numbers?

4 JUDGE ANTONETTI: [Interpretation] Yes. As we actually have three

5 documents, the big map plus two photographs, the big map is P1, one of the

6 photographs taken from the helicopter can be said to be P2, and the third,

7 P3 perhaps, so that we can find our way. And there is reference made at

8 the top of the photograph. One of them says 8966. That will be P2. And

9 the other photo with the number 8969 will be P3. So we have three

10 documents. P1 for the big map; P2 or the 66, 8966; and the 8969 will be

11 P3, so that everybody can find their way in the documents. Please

12 proceed, Mr. Prosecutor.

13 MR. RE: Could the witness please be shown Exhibit P2. It should

14 come up on the screen now.

15 Q. Ms. Kegelj, can you please identify for the Court, by pointing,

16 and I'll do the commentary as we go, as to which -- first of all, is that

17 the village of Dusina?

18 A. Yes. That's my village.

19 Q. And is that where you were living in 1993, January 1993?

20 A. Correct.

21 Q. Can you see the house in which you were living in January 1993?

22 A. Yes.

23 Q. Can you please point to it? And when you point to it on the

24 screen --

25 A. [In English] Just here? [Interpretation] It's this one here.

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1 Q. It might be, but --

2 JUDGE ANTONETTI: [Interpretation] Perhaps a pencil for the

3 witness. What I was saying was: Madam Usher, could you please give the

4 witness a pencil so she can mark the place her house stands.

5 Please continue.

6 MR. RE: We only have one copy at the moment, Your Honour. That's

7 the copy which you have. If she marks on this one, which is the

8 master -- it would be better if she marked it on a photocopy. Perhaps if

9 she describes it at the moment and we can mark it on later. If there's

10 any dispute with the Defence, it can be cleared up.

11 THE WITNESS: [Interpretation] As I was saying, this is the house

12 belonging to my parents, in which I lived. Actually, the light one here.

13 That's where we lived. And this is the new one that's still under

14 construction.

15 MR. RE:

16 Q. And for the record, you're indicating the house in the top left of

17 the photograph?

18 A. Correct. Yes, that's right. That's the house.

19 Q. All right. Thank you. Leave the map there for the moment. I'm

20 going to ask you about what happened on the 26th of January, 1993. If the

21 usher could perhaps stay there while you describe and I'll get you to

22 point to things on the map so you can show us what happened and where you

23 went and so on.

24 Did you spend the night on the 26th -- or 25th of January, 1993 in

25 your house in Dusina?

1 A. Yes. That's precisely how it was. As I said, the night between

2 the 25th and 26th, I spent in my house, together with my family, just like

3 the other local inhabitants, or rather, my relatives and neighbours and

4 uncles and so forth and their families.

5 Early on the morning of the 26th, sometime around 5.30 on my watch

6 is 5.25, I was woken up by a bullet which whizzed through the room I was

7 sleeping in. And then I realised that there was a lot of shooting to be

8 heard outside. I went out of the room. I found my mother and father

9 awake.

10 Q. Can I just stop you there? What is your mother and father's name?

11 A. My mother's name is Jela Kegelj and my father's name is Jozo, of

12 course Kegelj being the surname.

13 Q. Apart from you and your mother and father, were there any other

14 people staying in your house that night?

15 A. That night my brothers were not in our family house, because at

16 the time, they were standing guard, on watch, and they were in one of two

17 Serbian houses which had been abandoned and which can be seen on the

18 photograph -- cannot be seen on the photograph. They were members of the

19 HVO, of course.

20 Q. All right. What were your brothers' names?

21 A. Mladen was -- and -- was the older one and Drazen was the other

22 one.

23 Q. Those two Serb houses that you referred to a moment ago, can they

24 be seen on the other larger photograph, which is P3?

25 A. Yes, you can see them. This could have been the barn or shed in

1 the corner here. That was the barn belonging to one of the two houses,

2 and the houses should be somewhere close by, one of them, and the other

3 here. But you can't see them, I'm afraid.

4 Q. I'll just stop you there for --

5 A. There seems to be -- there seem to be some ruins here, and I think

6 that was the house, if this is the barn, then this would be the house.

7 Q. All right. And for the record, you are indicating to the

8 immediate left of the photograph there's a road that goes down into a

9 creek or a stream, and there's some abandoned buildings in that vicinity.

10 That's the area you're pointing to on the photograph?

11 A. Yes, that's right. Correct.

12 Q. All right. I'll now take you back to when you woke up. You were

13 woken up by a bullet and you went to your parents' room. What happened

14 then?

15 A. My parents, my mother and father, were also awake, and as the

16 shooting was coming from the Muslim part of the village, our house was

17 exposed to the shooting, as the first in line. And my father said we

18 should go down to the cellar, to my uncle's house, in fact. His house had

19 far thicker walls and he thought we'd be better protected there. So the

20 two of us went, my mother and myself, and he stayed on in our own house,

21 but I didn't see him after that until the arrival in Busovaca.

22 MR. RE: I also want you to show Their Honours on the map where

23 you went in the Muslim part of the village, so could you please show the

24 witness the photo again.

25 Q. That will be P2, the closer one.

1 A. As I've already said, from the family house in which we had spent

2 the night, my mother and I went to this other house that belonged to my

3 uncle, the late -- my late uncle, whose name was Niko, and that's where we

4 were during the attack, together with two other aunts and their children.

5 Q. And for the record, you're indicating a white house which is in

6 the middle of P2, two-storey house with a roof but no tiles on it. Please

7 continue.

8 A. Perhaps there was a mistake in the interpretation, but this house

9 was covered at the time, and these are the remnants after the looting,

10 plunder, and burning that was left behind. Those who expelled us from

11 there.

12 Q. My commentary was directed to the photograph which you're looking

13 at at the moment. In its present state, there is no roof on it. Just to

14 be clear that the record reflects that it is in fact the house with no

15 roof at the moment, or no roof in the photograph.

16 A. Yes, that's right, at the moment.

17 Q. A moment ago you told us there was a Muslim part of the village.

18 Could you please look at the other map, which is P3, the larger overhead

19 shot.

20 A. [In English] The other one.

21 Q. Can you please -- sorry. Can you please indicate for

22 Their Honours where the Muslim part of town was.

23 A. [Interpretation] In this upper part, looking at it, I would say

24 the left-hand corner. That's where that house was. So that is the

25 crossroads or the line separating the Croatian and Serbian from the Muslim

1 part.

2 Q. And on the photograph P3 you're indicating in the top left-hand

3 area of the photograph?

4 A. Correct.

5 Q. Now, while you have that photograph there, can you just draw in a

6 large circle the Croat part of town - sorry - part of the village.

7 A. [Indicates] This would be it.

8 Q. You're drawing a large circle, which includes the houses in the

9 middle and the damaged one towards the bottom half on the right as well.

10 A. And the two here in the upper, central section of the photograph,

11 if I can put it that way. So this one here and that one.

12 Q. Those are the two to the right of the photograph, without roofs on

13 them, white houses?

14 A. Correct. Those two as well.

15 Q. And who owned those houses in January -- or who lived in those

16 houses in January 1993?

17 A. This house belonged to the family belonging to my late uncle,

18 Jure Kegelj, and the two here belonged to Marko Rajic. This house

19 belonged to my late uncle Niko.

20 Q. I'll just stop you there. The one which you said belonged to

21 Uncle Niko, was it?

22 A. Yes. Yes. This one here.

23 Q. And can you tell us who owned the house -- or who lived in the

24 house at the very bottom of the right?

25 A. At the very bottom of the right-hand corner?

1 Q. Yes.

2 A. I said my late uncle who died before the war, and his son lived

3 there, in fact, afterwards, as well as his wife, or my aunt. And his son

4 with his family.

5 Q. What I'll do is I'll get you to mark on a photocopy afterwards all

6 those names that you have -- that you have described to us, and we'll show

7 that to Defence counsel and we'll try and do that after court today.

8 If we can now go back to the -- when you were woken up, you heard

9 the shots and you left the house. Can we go back to photograph P2,

10 please.

11 A. As I've already said, from our family house, my mother and I went

12 to the house of my late uncle Niko, and there were two aunts there with

13 their families, my aunt Ana. From this house, she was there. And the

14 owner of the house, my aunt Andja. So we had taken refuge in their

15 cellar, for safety reasons, because the cellar was well constructed, thick

16 walls made of stone, I think. Anyway, my father said we'd be safer there.

17 And that's where we stayed throughout the time the shooting went on, while

18 the attack lasted.

19 When there was a lull, we saw later on that soldiers came to the

20 door. So there were people knocking at the door, and then kicking the

21 door and then they used bullets to destroy the lock and break down the

22 door. And the first thing we saw were rifle barrels.

23 Q. I'll stop you there. You said soldiers came to the door. The

24 translation says, "we saw later on that soldiers came to the door."

25 A. Yes.

1 Q. Was it soldiers who came to the door then and knocked the door

2 down, or did something to the door?

3 A. Yes, that's right. The first people at the door were these

4 soldiers, in fact, who shot at the lock, broke the lock down, and then

5 smashed in the door with -- kicking them with their legs.

6 Q. I'll stop you there.

7 A. Okay.

8 Q. Where were you when you -- when the soldiers were at the door?

9 A. I was in the front, if I can put it that way, because behind me

10 were the young children of my aunt's. Next to me was my mother and my

11 aunt. So the older group of us were in the front line, who were directly

12 facing these men who had come in, and their barrels.

13 Q. Who were these soldiers?

14 A. Members of the Army of Bosnia and Herzegovina, of the

15 7th Muslim Brigade, of the Ironworks Battalion. So they are the unit that

16 I know for certain were in Dusina. They didn't conceal that even. They

17 identified themselves, in fact.

18 Q. What did the soldiers say when they came to the door?

19 A. One of them threatened to kill all of us. A second said that they

20 wouldn't because they were the Army of Bosnia-Herzegovina and they didn't

21 kill women and children and they didn't rape women and children.

22 Q. What were the soldiers wearing?

23 A. They were wearing military uniforms, camouflage uniforms.

24 Q. What happened after the soldiers came to the door and said the

25 things you said they just said?

1 A. They demanded that we come out of the basement, that allegedly

2 they wouldn't hurt us. Then they took us through this orchard, this yard,

3 above Uncle Vinko's house. So along the route that I'm pointing to behind

4 our house, through these gardens here, and then along the so-called

5 Zavoda, the name of this field, Zavoda. Along it, we came to the

6 intersection that divides the village into the Muslim and Croat parts.

7 Q. How many soldiers were there?

8 A. You mean generally or those who were escorting us?

9 Q. Escorting you.

10 A. I wouldn't be able to tell you exactly. Maybe about ten. I don't

11 know. Eight to ten. I don't know.

12 Q. Did you see any other soldiers of the ABiH in Dusina when these

13 ten or so soldiers were escorting you?

14 A. Yes. They were everywhere, because from this garden, as it was

15 wintertime, there were no leaves on the trees, we could see clearly the

16 whole area, and there were a lot of them around here, around my uncle's

17 house, Uncle Stipe's house. And just when we were here, midway, in the

18 middle of the garden, the shooting had stopped, and then suddenly we heard

19 a burst of fire and we saw a person running along here, jumping over the

20 fence and going through the Muslim cemetery and fleeing. I later learnt

21 it was Marijan Kegelj, my uncle's son, who managed to escape. There was

22 shooting and yelling. They were saying, "Catch him alive. Don't let him

23 get away." Luckily, he succeeded.

24 Q. A moment ago, Ms. Kegelj, you told us that you went through the

25 orchard above Uncle Vinko's house.

1 A. Yes.

2 Q. What did you hear as you were going past Uncle Vinko's house

3 towards the Muslim part of Dusina, when you were near Stipo's house?

4 A. You can't be close to Vinko's and Stipo's house at the same time.

5 Stipo's is down here and Vinko's is up there. So escorted by the soldiers

6 we were following this route towards the intersection and only after about

7 an hour and a half, or an hour or two, we were turned back to Stipe's

8 house. So I don't quite understand your question.

9 Q. I'll come back to it in another way. Can you just --

10 MR. RE: Can Your Honours just excuse me for one moment.

11 Q. What happened when you were brought to the junction near the

12 Muslim part of the village?

13 A. I saw there most of my neighbours and relatives, a host of

14 soldiers, lots of camouflage uniforms. Personally, I was standing with my

15 mother close to Zuhdija Halid's stable. It was a bit to the side in

16 relation to the other soldiers and the local inhabitants. I don't know

17 how much time we spent there, ten to fifteen minutes, when, from the

18 Muslim part of the village, a group of members of the HVO arrived who had

19 been captured by the BH army and all the others who were in the village,

20 and they were leading them through the village, mistreating and beating

21 them. I know that because my brother, who was one of them, one of the

22 captured HVO soldiers said upon returning to the junctions, told my mother

23 that Drazen had been killed, my younger brother. My mother fainted. And

24 I helped her. I know that we used the snow to try and bring her back to.

25 When she finally regained consciousness, she begged Mladen, as he was

1 rather hot-tempered - I don't know how to put it in our own language - she

2 begged him to keep quiet, not to say anything, not to provoke others so

3 that at least he may survive.

4 There were two neighbours close by, members of the BH army. They

5 were in uniform. And when he said that "Drazen has been killed but I am

6 still alive" to my mother, then these two of our neighbours said: "We'll

7 see for how long you will be alive."

8 After that, I don't know exactly how long they kept us there at

9 the crossroads, then they led us back towards our village and they took us

10 to Uncle Stipe's house. Before they brought us there, at the crossroads,

11 which cannot be seen on this photograph either - perhaps on the other one,

12 but I'm not sure - so they brought us to that crossroads, stopped the

13 column, and separated the civilians. And I think soldiers too. I'm sure

14 about the civilians to be used as a human shield, which was meant to go to

15 the village of Brdo because allegedly there were some more HVO soldiers

16 there so as to force them to surrender.

17 Q. You said it might be on the photograph. Could you look at the

18 larger photograph, which I think is P3. Can you see the crossroads on

19 that photograph?

20 A. Yes. That is the crossroads I'm talking about, and the column was

21 coming along this way. We were brought there. Then we were stopped

22 there. They separated those they thought they wanted to use as human

23 shields and they took them along this route to Brdo.

24 Q. I'll stop you there. You indicated on the photograph a road which

25 comes from the sort of top left of the photograph and does a

1 circular -- and splits into two before a white house. You've indicated

2 where the road forks to the left in a sort of circular thing.

3 A. [In English] Yes.

4 Q. And down past some trees going off to the left of the photograph.

5 A. [Interpretation] Yes. That is the road. Let me repeat: This is

6 here is the crossroads and then this road leads to Brdo, that goes

7 straight ahead, not the one that climbs up the hill.

8 Q. Some civilians went on the road to Brdo. Where did you go?

9 A. The rest of us were taken to this house, and we were forced to

10 stay there until late in the afternoon. It is the house of my

11 uncle Stipe.

12 Q. I'll stop you there. Who took you and how many people were taken

13 to the house?

14 A. It is hard to assess how many we were. I'm unable to tell you

15 exactly. But maybe 25 to 30. Between 20 and 30. I'm not sure. I know

16 that we were on the first floor and the ground floor of the house, and we

17 were taken there by the soldiers who escorted us all the way from the

18 crossroads, soldiers with weapons escorted the column. I even know the

19 name of a person who separated some of the people for the human shield,

20 before my very eyes, a person I know, a neighbour from the village of

21 Brdo who had a Motorola in his hand. He was constantly talking to

22 someone, whether he was receiving orders or issuing orders himself, I

23 don't know, but he was in touch with the radio station with someone at the

24 other end.

25 Q. Who was this person?

1 A. Edin Hakanovic, the brother of my pre-war friend.

2 Q. And where was he from?

3 A. He was from Brdo.

4 Q. What was he wearing?

5 A. He was wearing a kind of uniform.

6 Q. Was he armed?

7 A. I didn't see a weapon. I didn't see the weapon, but he did have a

8 radio station.

9 Q. You said he was wearing a kind of uniform. Do you remember what

10 kind of uniform?

11 A. Something dark blue, consisting of a jacket and trousers.

12 Afterwards, I heard that these were special police units.

13 Q. I'll take you back to the house. You were taken to the house by

14 armed soldiers with a large group of other people. Were the people there

15 all civilians?

16 A. When we reached the house, we were all civilians, which means that

17 members of the HVO, those in uniform, were taken to be used as human

18 shields together with a number of civilians. And when they had finished

19 what they needed them for add Brdo, they brought them back to this house

20 as well, where we were. And that was when I saw my brother Mladen for the

21 second and last time, as well as the others who were executed that day.

22 Q. What else happened in the house? You said your brother was there.

23 What happened after you saw your brother for the last time?

24 A. While we were staying in the house, there wasn't any physical

25 mistreatment, but mental, yes. There was shooting around the house, ugly

1 words, "Allah U Akbar". As the window panes were broken, we put blankets

2 to keep the warmth in. Then suddenly they would throw in a screaming cat

3 amongst us. There were small children who were crying and screaming.

4 There were even threats on a couple of occasions. They took us to our

5 houses to tell them where we had hidden weapons, which of course we didn't

6 have. They threatened to kill us for each bullet that they might find in

7 the house.

8 So when the people from the human shield returned, we were all in

9 the house. I saw my brother Mladen for the last time, as I said. And

10 then sometime in the afternoon - I don't know exactly when - or maybe it

11 was about noon, an unknown person came, a soldier of the BH army, escorted

12 by a neighbour of mine, with a list in his hand, and this list started

13 with the name of my father and my brothers. In those days, we didn't know

14 anything about my father, because I hadn't heard him since that morning.

15 No one knew whether he was alive or dead. Fortunately, he managed to

16 escape all this, in the direction of Busovaca, seeking aid, which,

17 unfortunately, didn't arrive on time.

18 Q. I'll just stop you there. You said they called out -- sorry, they

19 had a list and the names started with -- it started with the name of your

20 father and your brother. What other names were on the list did you hear

21 called out?

22 A. On the list were all the men from my village, including my uncles,

23 their sons. So virtually all adult males.

24 Q. Just to be clear: Can you please tell Their Honours the

25 names -- I know they're your uncles, but their names, please.

1 A. Kegelj Stipo, Vinko Kegelj, Niko Kegelj, Ivica Kegelj, the son of

2 my late uncle Jure, who died before the war; Marinko Kegelj, also the son

3 of my Uncle Stipe, who was executed in this attack.

4 Q. What happened after their names were called out?

5 A. So they called them out one by one, and I remember when they spoke

6 the name of my father, of course, he wasn't there. Then they went on to

7 call out my brothers. Drazen was already dead. Mladen was taken away and

8 I never saw him again after that. So whatever name they called out, if

9 that person was alive and in that house, he would be taken away, and we

10 didn't see them again, except for those who survived due to chance, who

11 survived the execution, like Marinko, who managed to escape.

12 Q. How long did you remain in the house that afternoon?

13 A. I don't know the exact time, but I know that it was night-time

14 when they moved us from there. Maybe it was about 5.00 or 6.00 in the

15 afternoon, or between 4.00 and 6.00. I really don't know the exact time.

16 Q. Can you tell the Court the names of any ABiH soldiers you saw in

17 either your house or the vicinity after you were taken to the house in the

18 afternoon?

19 A. I can only give you the names of my neighbours who I saw there and

20 who I knew. As for members of the BH army that I didn't know, they were

21 foreign to me. What I do remember now is that my neighbours were mostly

22 in civilian clothes. They were not wearing camouflage uniforms; at least,

23 those of them whom I still remember.

24 Q. You said you were moved from there between 4.00 and 6.00 in the

25 afternoon. I want you to tell the Court how you moved and who moved you

1 and where you went to?

2 A. So these members of the BH army whom I didn't know, while we were

3 still in the house, it is worth saying that they came and demanded that we

4 make coffee for them. One of them said: "So we'll fix this, God willing,

5 we'll be in Busovaca tomorrow." I just laughed and said: "Hardly,"

6 meaning never.

7 My mother got scared then that I would have problems as the others

8 had who resisted them. However, luckily they didn't punish me for this.

9 So those same soldiers, not all of them; some of them left and

10 disappeared. At least, we didn't see them any more. Those who were

11 guarding us and who were around the house at some point arrived and

12 said -- came in and said that they would take us to Lasva, to the school.

13 And on the way, they used us again as human shields, in Visnjica, where

14 again allegedly all the HVO members had not been captured.

15 Q. Who led the soldiers and the civilians from Dusina to Lasva? Who

16 was in charge of the column?

17 A. I really don't know. We were somewhere in the middle of the

18 column. Who had issued the order for us to go to Lasva, I don't know. I

19 just know that we were escorted all the time by armed soldiers. In

20 Visnjica, we stopped or had a break for them to check whether there were

21 any HVO members left there, and then eventually they brought us to the

22 elementary school in Lasva.

23 Q. Who was at the school when you got there?

24 A. The ones who went before us in the column. And once again, there

25 were many of the members of the BH army there and a lot of uniforms, to

1 put it simply, people I didn't know.

2 Q. How long did you stay in the school for?

3 A. It was after midnight, around 1.00 or 2.00 a.m., I would say. I

4 can't say with certainty, but it was well after midnight when they came

5 and said that we could go back to our homes, that everything was clear,

6 clear of whom, cleared of whom and of what, I asked myself.

7 Q. And where did you go then?

8 A. Of course, it didn't enter our minds to go back to the village. I

9 stayed with my mother, as far as I'm personally concerned, and with my

10 aunt. We stayed in my aunt's house, my brother's sister's house, in

11 actual fact, in Lasva, in the part called Kolonije.

12 Q. When was the next time you returned to your house in Dusina?

13 A. As I started working for the European monitors on the 11th of

14 February, 1993, that might have been sometime in 1993, I think. I can't

15 say exactly, but I went up there with the team. And I remember that we

16 found the former president of the local commune of Lasva there. I have a

17 problem here because I don't remember names very well. Anyway, I showed

18 them the village and told them what had happened. He came up to us and

19 said, when he was asked why the houses were empty, where the furniture is

20 and all the other household effects that the people had in them, he said

21 that for safety reasons, to prevent looting, that everything was stored in

22 the schoolhouse in Lasva, that they were waiting there for our return,

23 allegedly. And Nezir Brkic is the name of the former then-president of

24 the local commune. I think he was also president of the war presidency,

25 in actual fact. Nezir Brkic was his name anyway.

1 Q. Thank you. I want to take you back to some of the things you told

2 us about. You said when you gathered -- when you were taken to the Muslim

3 part of the village by the ABiH soldiers, there were some HVO soldiers

4 there. Can you tell us who the HVO soldiers were that you saw in the

5 Muslim part of the village?

6 A. When we got to the junction, I said that from the Muslim part of

7 the village, which is upper slope, that a group of HVO soldiers returned.

8 They were members of -- they were taken by the members of the BH army

9 through the village so that the Muslims could take it out on them. They

10 spat at them, beat them, and so on, and these people were barefooted.

11 They made them take their uniforms off and walk around the village that

12 way. And I know that because I saw my brother and the rest, and my

13 brother told me what they did to them.

14 Q. Can I just stop you?

15 A. Yeah.

16 Q. I'm sorry. You were going on, please.

17 A. I also saw, except my brother, I saw Augustin Rados executed later

18 on, Milenko Rajic, who stayed alive. August, Milenko. Who else did I

19 see? Mato Rajic, but he was the main one there, civilian. That's what I

20 can remember, or not in civilian clothing. And that's it. That's what I

21 saw at the junction.

22 Q. You said the HVO soldiers weren't wearing any shoes. Were they

23 carrying their shoes?

24 A. They didn't have them at all. They were taken away from them.

25 The members of the BH army. Who else? They forced them to take their

1 shoes off and to walk barefoot in that cold weather and walk through the

2 village in that way. Now, maybe they needed their shoes. Perhaps that's

3 why they took them away in the first place. That's what I assume.

4 Q. Can you remember what the approximate temperature was on the 26th

5 of January, 1993, on that cold weather you've just described?

6 A. It was quite a bit below zero. I know that the previous night,

7 the night before the attack, there was some icy rain. There wasn't much

8 snow, but it was very, very cold.

9 Q. You said that you -- that the ABiH soldiers spat at the HVO

10 soldiers and beat them. What did you -- and they were barefooted. What

11 did you see the ABiH soldiers doing in terms of beating them?

12 A. I didn't say the BH soldiers spat at them and beat them, but the

13 local villagers, and these soldiers were taking them through the village

14 to expose them to these insults, the spitting and the cursing and all

15 that. But my brother told me that. I didn't actually see it myself.

16 Now, what else? What else did you ask me? What else I saw? Is that it?

17 Is that your question.

18 Q. In your evidence earlier, you said at the beginning that the

19 soldiers didn't disguise -- words to the effect of didn't disguise who

20 they were and you knew that they were members of the 7th Muslim Mountain

21 Brigade. I just want you to elaborate on what they did to inform you of

22 that.

23 A. Yes. That's what they told us while we were in the house, while

24 we were kept prisoner in the house throughout the whole day. And I

25 remember that my late uncle Niko recognised some of the people who worked

1 in the ironworks. He was a worker there himself, working for that

2 company. So that confirms that the 3rd Ironworks Battalion was there.

3 And the fact is that the members of the BH army had the lily ensigns,

4 insignia on their uniforms, which confirms that they were members of the

5 BH army, and in fact they said themselves that they were members of the BH

6 army but that they didn't go around raping and killing women and children.

7 Q. I want to show you a document which is a photomontage of army --

8 various army badges. Just to explain to the Trial Chamber: There are

9 two -- I'm showing the witness two sheets containing -- I think it's 24

10 badges of various -- variously used during the war. The reason why two

11 sheets, these have been shown to witnesses throughout the investigation,

12 but two separate photomontage or two separate ones were made up but with

13 different numbers for the same badges so I've really got to show them both

14 to make sure we don't lose track during the trial.

15 Q. Ms. Kegelj, could you please look at these two documents.

16 A. As I've already said, the BH army insignia is very well known to

17 me and this is what I saw. The HVO insignia is too because my brother had

18 one of those, and the 7th Muslim Brigade is one I know very well too.

19 Q. All right. Can I stop you there. Can you just tell me which one

20 you're looking at? There are two numbers, one is 1365, on the bottom it

21 says PT1365, the other one says PT1363. Can you please -- which one are

22 you looking at at the moment?

23 A. 1363.

24 Q. Can you please tell me which number on PT1363 is the badge you

25 were referring to a moment ago.

1 A. Number 12 of the BH army badge. And then 8, the HVO patch. And

2 the next patch that I'm looking at is number 9, the 7th Muslim Brigade

3 one. But I must say that I cannot remember whether I saw that in Dusina,

4 because I would see this patch and insignia quite a lot later on when I

5 moved around throughout Central Bosnia, so I can't actual remember whether

6 that was in Dusina or not. But anyway, the soldiers said that they were

7 members of the 7th Muslim Brigade. As for the patch, I'm not sure whether

8 I actually saw it in Dusina or later on but this is the BH army insignia

9 quite certainly, yes.

10 Q. Just if you could clarify for the record. You've pointed to

11 number 12. A moment ago you said -- excuse me. I'm sorry. It's gone from

12 the screen. I can't remember exactly what the witness said. Correct me

13 if I'm wrong, and I'm sure there will be an objection. Did you say you

14 saw badges on the soldiers in Dusina on the 26th of January, 1993, meaning

15 the lily badge? You mentioned the lily badge.

16 A. Yes. Number 12, that is.

17 Q. You also said that you -- you've already identified HVO badges.

18 Are you saying that members of the HVO wearing the badge number 8 in the

19 village on that day?

20 A. Correct.

21 Q. Thank you.

22 MR. RE: May that be tendered into evidence, Your Honours?

23 [Trial Chamber and registrar confer]

24 JUDGE ANTONETTI: [Interpretation] Mr. Prosecutor, do you have

25 copies of that exhibit? Yes?

1 MR. RE: We most certainly do.

2 JUDGE ANTONETTI: [Interpretation] The Prosecution would like to

3 tender into evidence the 24 patches of which the witness recognised number

4 8, 9, and 12. Is that right? No objection from the Defence with respect

5 to having this tendered into evidence?

6 MS. RESIDOVIC: [Interpretation] Mr. President, the Defence has no

7 objections to having the documents exhibited as Prosecution exhibits.

8 However, we should like to remind you, Mr. President, that at the

9 pre-Status Conference we agreed that the Prosecution would simultaneously,

10 when it provides exhibits to the Trial Chamber, would serve the Defence

11 with the same documents and exhibits, so that we can have an identical

12 file building up. Now, as the Prosecutor tendered several exhibits into

13 evidence today, we should like to ask them to serve them on the Defence

14 within the coming few days. Thank you.

15 JUDGE ANTONETTI: [Interpretation] I hope, Mr. Prosecutor, you have

16 noted the comments and objections made by the Defence. They would like to

17 have the documents in advance to be able to better prepare themselves for

18 the cross-examination. So you have taken note of that, I hope. Very

19 well.

20 We're now going to exhibit these documents, and the registrar will

21 give us a number for them, please.

22 THE REGISTRAR: The document referenced P1363 will be Exhibit

23 number P4, and the document referenced P1365 will be Exhibit number P5.

24 MS. RESIDOVIC: [Interpretation] Mr. President, perhaps it would be

25 in keeping with the Rules that P1365 also be shown to the witness, because

1 the witness has not identified the document at all yet. So I see no

2 grounds for it to be tendered into evidence as an exhibit. And we have

3 nothing against having the Prosecutor do that straight away.

4 MR. RE: I certainly don't object. If there's any utility in it.

5 JUDGE ANTONETTI: [Interpretation] Very well. So we have two

6 documents tendered into evidence, and the witness is being asked to take a

7 look visually at both the documents.

8 So, Madam Usher, would you kindly show the witness the documents,

9 that is, P1365, PT, and the second one, the other document, the number of

10 which is -- could you remind us what P number was it for that exhibit,

11 Mr. Prosecutor?

12 MR. RE: P1363 was the first one we showed the witness. The

13 second one is P1365. The badges are in a different order, with different

14 numbers.

15 Q. So, Ms. Kegelj, could you please take a look at the second one,

16 P1365, and for the record -- just tell us for the record which ones can

17 you see: The lily badge, the HVO badge, and the 7th Muslim Brigade badge?

18 A. Yes, but the order is different. The HVO badge is number 8 here

19 on this one, the 7th Muslim Brigade badge is number 16, and the BH army is

20 23.

21 JUDGE ANTONETTI: [Interpretation] Very well. So we have

22 identified the two documents, 1365, with the three badges, 8, 16, and 23,

23 and the 1363 one, where the numbers are 8, 9, and 12. Do we all agree,

24 one and all? Very well. So those numbers have been taken note of and the

25 exhibit numbers are P4 and P5 for those two documents. That's right,

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1 isn't it?

2 Please proceed, although we have five minutes left, not more than

3 that, Mr. Prosecutor.

4 MR. RE:

5 Q. Ms. Kegelj, you've already told us that you know Niko Kegelj, your

6 uncle, Stipo Kegelj, your uncle, and Vinko Kegelj, your uncle. Did you

7 know Pero Ljubicic?

8 A. Yes. Pero Ljubicic was a neighbour who, up until the war, lived

9 in Brdo, the village of Brdo. He was an elderly man and was not a member

10 of the HVO. He was a civilian.

11 Q. Did you see him on the 26th of January, 1993?

12 A. I seem to feel I did, but maybe it would be better for me to say

13 no, because I'm not quite sure. But I do know that he was killed with all

14 the rest on that day, regardless of his age.

15 Q. What was his ethnicity?

16 A. He was a Croat, a Catholic.

17 Q. You've mentioned Augustin Rados earlier. Was he a relative of

18 yours?

19 A. May I just clarify matters? Pero was not a relative, but Augustin

20 was, and of course I knew him. He was nicknamed Cica. That's what

21 everybody called him.

22 Q. What about Zvonko Rajic?

23 A. Yes, I know him too. We weren't related, but he was a neighbour

24 who, up until the war, lived in Lasva, in the hamlet of Rajici.

25 Q. Ms. Kegelj, you gave a statement to the Prosecutor on the

1 20 -- I'm sorry. You gave two statements to the Prosecutor, one on the

2 6th of February, 2000, and another one on the 14th of November, 1999, both

3 to Investigator Racine Manas, didn't you?

4 A. Correct.

5 Q. And when you spoke to the Prosecutor, you told -- did you tell her

6 everything you could remember at that time?

7 A. Probably I did. However, I can't say with certainty now.

8 Possibly I left -- might have left something out that I thought of later

9 on, that came to mind later on. So I can't really say that I told her

10 everything. I told her everything I could remember at the time.

11 Q. All right. And when we had a brief conference before you came

12 into Court for about 15 to 20 minutes this morning, I didn't show you your

13 statement or take you through it?

14 A. That's right. We didn't have time.

15 MR. RE: Your Honour. Can I stop there?

16 JUDGE ANTONETTI: [Interpretation] Yes. It's 1.45, so it would be

17 a good idea to stop there, and we take up the proceedings tomorrow. How

18 much time do you anticipate for tomorrow for your examination-in-chief?

19 MR. RE: I anticipate probably maybe 15 to 20 minutes, but there's

20 two matters I wish to raise in respect of this witness's evidence, which

21 should only take me a minute or so to tell Your Honours. The witness

22 doesn't need to be here for that, if ...

23 JUDGE ANTONETTI: [Interpretation] For tomorrow? But we have the

24 cross-examination, so the witness needs to be present.

25 MR. RE: No, no. I need to raise something in respect of the

1 witness's evidence relating to tomorrow's evidence.

2 JUDGE ANTONETTI: [Interpretation] Very well. But you don't need

3 her presence; is that it?

4 MR. RE: That's right, yes.

5 JUDGE ANTONETTI: [Interpretation] And that you're going to tell us

6 tomorrow?

7 MR. RE: No. I need to tell you now to facilitate tomorrow

8 morning's evidence.

9 JUDGE ANTONETTI: [Interpretation] I see. Very well. Go ahead,

10 then.

11 MR. RE: The witness doesn't need to be here for this,

12 Your Honour. May be the witness could be led from the court for the

13 moment.

14 JUDGE ANTONETTI: [Interpretation] Yes. Very well.

15 Madam Witness, keep your headsets on for the moment. It is

16 already 1.45, so we're going to adjourn the hearing in a few minutes'

17 time. I should like to ask you to come back tomorrow morning at 9.00,

18 because we resume the hearing tomorrow morning at 9.00. And in the

19 meantime, please do not have contact with anyone, don't speak to anyone in

20 the meantime. And you're free to go now.

21 [The witness stands down]

22 JUDGE ANTONETTI: [Interpretation] Do you need a private session

23 for what you're going to say? No. Very well. Then let's hear what you

24 have to say, Mr. Prosecutor.

25 MR. RE: Two matters. The first is -- three, really. They all

1 relate to each other. It relates to the Prosecution being able to speak

2 to a witness and to prepare the witness for the proceedings. As

3 Your Honours have seen, the fact that we basically only had 20 minutes to

4 do so today created some problems in relation to exhibits, and I wasn't

5 able to have the witness draw on it in advance or prepare copies and sit

6 down and go through it in a considered way which would have greatly

7 facilitated the proceedings.

8 There are also three matters in the witness's statements, the name

9 of people she's referred to in the statement but it would appear forgot to

10 tell us about during her evidence this morning. I wasn't present when the

11 Presiding Judge made your ruling this morning about refreshing from a

12 statement. I've just laid the foundation for the fact that she has made

13 two statements to the Prosecutor. Now, clearly, I mean, I didn't have a

14 chance this morning and I didn't go through the statement or show her the

15 statement this morning, which may well have prompted the recollection

16 which I think Your Honour is referring to in the ruling this morning and

17 in the exchange yesterday. The reason for that was the limited time I had

18 and not being able to get on top of the ruling within that period.

19 So what I'm asking for Your Honour's permission to do at the

20 moment, with the Defence's indulgence, given the ruling and the inability

21 of the Prosecution to properly prepare its witness for the exhibits we

22 wish to tender through her and drawing on them and so on is if

23 Your Honours would allow me to have the witness -- allow the witness

24 access to her statement to refresh her memory from it, out of court.

25 Because it hasn't been done.

1 The other thing is to facilitate the proceedings the witness may

2 be able to, if I gave her a photocopy out of court, draw on that and I

3 could tender it tomorrow morning or do it tomorrow morning and go through

4 the same procedure but it will take longer in court to do so. So to

5 facilitate proceedings there are two things which could be done out of

6 court. I'd ask whether Your Honours are prepared to allow me to do so

7 with the witness immediately out of court and produce the results in court

8 tomorrow.

9 JUDGE ANTONETTI: [Interpretation] You're raising a whole series of

10 problems now. If the witness arrived late, that is neither the fault of

11 the Trial Chamber, nor is it the fault of the Defence, and it is up to the

12 Prosecution to take any useful measures to see that the witness arrives on

13 time and to ensure that the hearing can proceed -- could take its course.

14 Now, what you're suggesting now is to have contact and talk to the

15 witness, and that presents a fundamental problem, because that kind of

16 contact could give rise to direct or indirect pressure on the witness.

17 The problem is that she said that she remembered some people, but she

18 couldn't give us their names. That doesn't seem to be too determining.

19 She might remember in due course, or perhaps through asking her questions

20 in the proper way. This could perhaps refresh her memory of those names.

21 Now, the fact that X, Y, or Z, that she hasn't been able to name

22 today and give us their identities today doesn't seem to me to be -- to

23 merit authorising you to have a meeting with your witness before tomorrow.

24 And now with regard to the markings on the map out of court, that brings

25 us to the same question. But I'd like to hear the feelings of the Defence

1 on this matter first, please.

2 MS. RESIDOVIC: [Interpretation] Mr. President, the Defence

3 considers that any communication with the witness between two hearings and

4 sessions would be a precedent, which could be used on different occasions

5 to the detriment of a fair trial, and that is why we agree that this would

6 not be a good idea, that is to say, that the party calling the witness,

7 which in this case is the Prosecution, and later on it will be us, as the

8 defence team, to contact witnesses in the interim between two hearings.

9 The Defence also is of the opinion that if the circumstances have

10 arisen, as they have today, and we were all witness to those

11 circumstances, I myself - I can't speak on behalf of Brigadier Kubura's

12 defence - but we wouldn't have anything -- we wouldn't be opposed to

13 having a representative from the Registry provide the witness for a short

14 period of time with her statement, the statement the witness gave to the

15 office of the OTP on the 14th of November, 1999, in which she speaks about

16 the events she testified about orally today. However, we are emphatically

17 opposed to the witness being shown her statement of the 6th -- of the 2001

18 statement of February.

19 MR. DIXON: Your Honour, if I --

20 JUDGE ANTONETTI: [Interpretation] You mean 2002, 6th of February,

21 2002?

22 Mr. Dixon.

23 MR. DIXON: Your Honour, if I may say on behalf of Mr. Kubura, we

24 would oppose the witness giving any of her statements now in the middle of

25 her testimony, either her first one or second one, because in our

1 submission it would completely undermine the ruling that Your Honour made

2 earlier this morning that the witness is not to be able to have the

3 statement while testifying to refresh their memory. They have an

4 opportunity look at the statement before they testify and the Prosecution

5 did have an opportunity to do that today. If they didn't have enough time

6 it was incumbent upon the Prosecution to ask for more time. But they

7 proceeded and given that they proceeded, Your Honour, it's our submission

8 that it is now too late, that they do not have the opportunity now to do

9 so.

10 [Trial Chamber confers]

11 THE INTERPRETER: Microphone, please, Your Honour.

12 MR. WITHOPF: Your Honour, if I may just briefly respond.

13 JUDGE ANTONETTI: [Interpretation] Mr. Prosecutor, you wish to

14 intervene? But quickly, please, because of the time.

15 MR. WITHOPF: It will be very brief. The Prosecution is fine with

16 the proposal made by the Hadzihasanovic Defence. I wish, however, to use

17 this opportunity to briefly describe the difficulties the Prosecution is

18 facing at this point in time, during this season, in bringing witnesses to

19 the court. The Prosecution wanted to have the witness arrive on Tuesday

20 afternoon. Unfortunately, the weather conditions, and it were the weather

21 conditions only, which made it that difficult, and she only arrived, as

22 Your Honours know, in the course of this morning. The Prosecution is

23 confronted with a very difficult situation and I already now wish to alert

24 Your Honours that this may arise in future quite often, or at least more

25 than once.

1 The weather conditions, as we know by experience, will become

2 worse over the next few weeks. Just to give you a brief example, this

3 witness was driven from Sarajevo to Zagreb in order to make it possible,

4 to make it possible at all that she can arrive today, and she was flown

5 over from Zagreb to Schiphol this morning. The planning is always so that

6 we have the witness around at least one day for the conference with us, at

7 least one day prior to her anticipated testimony. As I mentioned, we may

8 face a situation that similar situations may arise in the future as well.

9 Thank you.

10 MS. RESIDOVIC: [Interpretation] Mr. President, just because this

11 is the beginning of trial, and because these circumstances occurred that

12 could not be anticipated, and because they're exceptional, I suggested

13 that the witness be shown just one of her statements. However, now the

14 Prosecutor has said that this might happen in the future as well, and I

15 reject any possibility of this being established as a precedent, because

16 the Prosecutor can make provision for every situation. And should such a

17 situation occur, they may ask the Trial Chamber to postpone the beginning

18 of the hearing for a couple of hours for them to be able to prepare the

19 witness. So we agreed only for this exceptional occasion. Thank you.

20 MR. WITHOPF: Very briefly, Your Honours.

21 JUDGE ANTONETTI: [Interpretation] Yes. I was asking whether you

22 wished to comment, and after that, the Chamber will make a ruling.

23 MR. WITHOPF: Mr. President, Your Honours, the Prosecution is also

24 taking care -- is taking much care of the ICTY funds. Therefore, we

25 cannot try to have a witness flown in a week prior to the anticipated

1 testimony. We follow the usual procedure that the witness is flown in two

2 days prior to his testimony, leaving us with one day for a conference with

3 the witness.

4 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

5 The Defence suggested that the hearing of the 14th of November,

6 1999, be shown, that is, the statement of that date, be shown in the

7 presence of a representative of the Registry. However, the Defence for

8 Mr. Kubura opposes this. In that case, it is not possible for the Chamber

9 to deviate from the general rule, which needs to be reaffirmed the more so

10 as the point raised has an impact on the names that the witness may have

11 identified, that she gave but which she cannot recollect today. As I

12 said, maybe she will remember later on at some later stage. Therefore,

13 the Chamber rules that there will be no communication between the

14 Prosecution and the witness until tomorrow at 9.00, nor will the procedure

15 be applied suggested by one defence team and opposed by the other.

16 Regarding the future: If again we encounter exceptional

17 circumstances, it appears that tomorrow already we will have one, because

18 the witness planned for tomorrow, I have been told that the flight from

19 Sarajevo has been cancelled again. So again we may not be having the

20 witness planned for tomorrow. Therefore, when the Prosecution is faced

21 with such a difficulty - and the same will apply to the Defence when it

22 will be calling its witnesses - you will then ask the Chamber for a

23 postponement for you to be able to communicate with the witness before the

24 beginning of the hearing, and of course the Chamber will grant such a

25 request made both by the Prosecution or the Defence when the case arises.

1 Therefore, I have to adjourn because in 15 minutes' time another

2 trial will be held in this courtroom. Therefore, we meet again tomorrow

3 at 9.00 a.m.

4 --- Whereupon the hearing adjourned at 2.01 p.m.,

5 to be reconvened on Friday, the 4th day of

6 December 2003, at 9.00 a.m.

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