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2 [Closed session]

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8 --- Break taken at 9.19 a.m.

9 --- On resuming at 9.34 a.m.

10 [Open session]

11 [The witness entered court]

12 JUDGE MAY: Yes. Let the witness take the declaration.

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

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

15 WITNESS: MIRA POCRNJA

16 [Witness answered through interpreter]

17 JUDGE MAY: Yes. If you'd take a seat.

18 THE WITNESS: [Interpretation] Thank you.

19 JUDGE MAY: Mr. Mikulicic, this evidence is all in a very short

20 compass. We hope we can get through it in half an hour each, no more.

21 Thank you.

22 MR. MIKULICIC: [Interpretation] I'm confident, Your Honours, that

23 will be ample time for me to finish with this witness.

24 Examined by Mr. Mikulicic:

25 Q. Good morning, Ms. Pocrnja.

1 A. Good morning.

2 Q. On behalf of Mr. Mario Cerkez's Defence, I shall ask you some

3 questions and ask you to answer them to the best of your recollection. I

4 should also like to ask you to pause before answering my questions so

5 that -- so as to give enough time to the interpreters, who are

6 interpreting what we are talking about into English and French, to do

7 that.

8 Will you please give for the record your full name and your place

9 and date of birth.

10 A. I am Mira Pocrnja, from Vitez, Gornja Veceriska, 10th of April,

11 1943.

12 Q. Thank you. Mrs. Pocrnja you are a Croat and you are Roman

13 Catholic, aren't you?

14 A. Yes.

15 Q. And you are a citizen of the Republic of Bosnia Herzegovina and

16 the Republic of Croatia, aren't you?

17 A. Yes.

18 Q. You are a clerk and you work for Cromen company in Vitez?

19 A. Yes.

20 Q. You completed four grades of elementary school, didn't you?

21 A. Yes.

22 Q. Mrs. Pocrnja, how long have you been living in Vitez?

23 A. What do you mean, "living"? I was born there. Fifty-eight years.

24 Q. And how long have you been working -- how long did you work for

25 Vitezit? Cromen is its legal successor.

1 A. I think I started working there in 1970, so it should be 29 years.

2 Q. And tell us: In the former half of 1993, did you live alone in

3 Vitez in your flat?

4 A. I did.

5 Q. Where is your flat exactly?

6 A. Hrvatskih branitelja 11, Vitez.

7 Q. If we take as a reference point the Vitez Hotel, how far is it

8 from the hotel? How far is your flat from the hotel?

9 A. Well, I should say less than 500 metres.

10 Q. So we could say that you are right in the heart of the town?

11 A. Yes.

12 Q. Mrs. Pocrnja, in the first half of 1993, did you still work and

13 get your salary at the Vitezit company?

14 A. No. No. May I add something to this?

15 Q. Yes, please do.

16 A. As of 1990, 1991, I have not been working, because already at that

17 time people were put on a waiting list, and I received just a pittance of

18 remuneration.

19 Q. So you were put on a waiting list, like many other workers,

20 weren't you?

21 A. Yes.

22 Q. And so how did you make your ends meet, I mean living alone and

23 how did you manage?

24 A. Well, it was very difficult, very difficult. I did whatever

25 people asked me to do. I chopped wood for my neighbours, et cetera.

1 Q. Mrs. Pocrnja, the building in which you live is opposite the

2 building where the health centre took shelter in Vitez in the war?

3 A. Yes. Yes. Across the street practically.

4 Q. Very well. And did you perhaps have an opportunity to see this

5 building hit by a shell during the conflict?

6 A. Yes. Yes. We even -- some shell fragments fell into our

7 apartment.

8 Q. So we could say that it wasn't safe for a single woman to live in

9 Vitez at that time.

10 A. Yes.

11 Q. Tell us, when this conflict in Vitez began, did any soldiers come

12 to your flat? Could you tell us how was it at that time?

13 A. It was very difficult because there were raids, all sorts of

14 people come, and Muslims too. We suffered just as much as Muslims did.

15 We together fled to cellars. We all fled together. And once I asked

16 doctor, "Why do I feel so weak when the alarm is sounded?" And he said,

17 "Well, it's just nerves."

18 Q. Very well, thank you. Tell us, did some soldiers come to your

19 flat?

20 A. Yes, at all hours of the day. Whenever somebody would knock on

21 the door, I would have to open.

22 Q. What did those -- who were those soldiers after?

23 A. Well, it was raids of sorts. They were looking for troops, they

24 thought that I was hiding somebody. I had to open wardrobes in the flat

25 to show them that I was not hiding anyone.

1 Q. Tell us, what did you decide then?

2 A. Well, then I decided to take some soldier in to help me to perhaps

3 bring me some food because I had nothing to eat, because we were all

4 suffering equally, Croats, and Muslims, and Serbs regardless. This was

5 very hard on us all.

6 Q. So did you find a man who could protect you under the

7 circumstances?

8 A. Well, I thought I had found him, two friends brought him to me, I

9 mean that Anto Breljas, and I thought that he would really become my

10 protector but as it all turned the other way around --

11 Q. Mrs. Pocrnja, will you please look at a photograph.

12 THE REGISTRAR: Exhibit D143/2.

13 MR. MIKULICIC: [Interpretation]

14 Q. Mrs. Pocrnja, do you recognise this man?

15 A. Of course I do, and I get goose flesh when I look at him.

16 Q. Who is this man?

17 A. Anto Breljas, that is at least what he told me, what he stated to

18 me that he was Anto Breljas.

19 Q. You said that it was some acquaintances of yours who had brought

20 Anto Breljas to you and you took him in.

21 A. Yes.

22 Q. What kind of understanding did you reach with him at the time?

23 A. There was no understanding. The only thing was that he should

24 bring me some food so that I could live and so that I feel slightly better

25 in that flat. We did not offer marriage to each other, and we had

1 nothing, whether you believe me or not, but I am ready to look him in the

2 eye. I am not afraid at all.

3 Q. So Mrs. Pocrnja, did he pay you for living in your apartment?

4 A. No. No. No. Nothing.

5 Q. Very well. And the first time he came to your flat, what was he

6 wearing, a uniform or not?

7 A. No, he was in civilian white trousers, a light-coloured jacket,

8 something like UNPROFOR, but he was in civilian clothes.

9 Q. Very well. Do you remember when was that approximately?

10 A. I thought -- yes, I go to bed and I start thinking when could that

11 have happened. It could have been sometime in July, August perhaps.

12 Q. Very well, but what year?

13 A. 1993.

14 Q. Very well. And what did he tell you, what was his job?

15 A. He told me he was a translator and a journalist.

16 Q. Very well. And what did he say who was he working for?

17 A. That he worked at a school in Vitez down by the station,

18 elementary school. I don't know what it's called.

19 Q. Did he tell you whether he was a member of some military unit?

20 A. No, he told me nothing. But later on, he acquired a suit, a

21 multicoloured one, and a rifle. He had that armament because he was

22 something like a guard down there. He distributed food to the troops,

23 flour, sugar, and other foodstuffs.

24 Q. Very well. Did he ever tell you anything about his personal

25 affairs, where he lived before, whether he was married, whether he had any

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1 children or something?

2 A. Yes, he did. But I did not believe him because I did catch him

3 lying from time to time. But what he said was that he was married and

4 then divorced, that he had two sons, that one of his sons was a drug

5 addict, and that his wife was allegedly a doctor, a physician.

6 Q. Did he ever tell you where he had come to Vitez from?

7 A. No. No, he did not.

8 MR. MIKULICIC: [Interpretation] I apologise to the interpreters.

9 I have just heard their comment, their protest.

10 Q. Mrs. Pocrnja, could you tell us what did Mr. Breljas do? What was

11 his daily time table?

12 A. Well, you know, he worked as a guard. He guarded the school, and

13 he would be on the first shift the whole day, and sometimes he would also

14 go and take the third shift and be there at night too. And that was it.

15 Q. And his -- the way he behaved in your flat, how was it over time?

16 A. Well, very bad. After a month, perhaps a month and a half,

17 slightly less, perhaps more, he began to behave badly. He was a dirty

18 man, and he tried to establish close relations with me but I was not for

19 it because I realised that he was not all right, that he did not wash.

20 And what do you want me to tell you? Perhaps that is why he was angry

21 with me.

22 JUDGE MAY: I think we have the broad picture, and I don't think

23 we want these personal details. Mr. Mikulicic, if you could deal with

24 those matters which relate to credibility, we'd be grateful.

25 MR. MIKULICIC: [Interpretation] Very well, Your Honours.

1 Q. Mrs. Pocrnja, tell us, did he ever apply violence? Did he ever

2 try to coerce you into doing anything?

3 A. Yes. Yes. I was washing dishes --

4 Q. Will you try to be as concise as possible? You do not need these

5 details.

6 A. Very well, but how shall I explain then why he slapped me in the

7 face?

8 Q. Right. But did you provoke him in any way, why he started to beat

9 you or slap you in the face or anything?

10 A. No, how could I?

11 Q. Did he threaten you with anything?

12 A. Yes. Yes, he did. He used foul language, slapped me in the face,

13 and I managed to escape, but I was diving with fear. Had I known that it

14 would have happened, I wouldn't have moved into the living-room, I would

15 have run out but I simply didn't know what he was about to do.

16 Q. Right. But did you then have to flee from your apartment?

17 A. Yes, I did run away to my daughter-in-law.

18 Q. Very well. And how long did you stay outside your apartment?

19 A. Well, sometimes I would spend a night away. Then I would learn

20 that he is not there so I go back home to get some sleep. And then

21 sometimes when he is in the flat, then in the evening, I had to sit up,

22 because I dared not go to bed.

23 Q. Very well. And did you try to do something to make him leave the

24 flat?

25 A. Yes, I did. I went to a lady friend, and I wept when I was

1 there. And I asked her "Well, can you somehow rescue me from him? If not

2 then I'll kill myself." "Why?" she said. Well, I told her, and she must

3 have found some better friends than I did, and one day somebody called who

4 could issue orders to him to -- and said to leave the flat.

5 Q. And then he left the flat, didn't he?

6 A. Yes, he did.

7 Q. And after that you went back to your flat?

8 A. Yes.

9 Q. But did he come again and threaten?

10 A. No, he did not come to the flat, but my windows -- there were two

11 windows next to my building, so he threatened me from the outside. He

12 cursed.

13 Q. Very well. Very well. Tell us, did he also take certain things?

14 A. From my flat, with my sister-in-law, he ordered my sister-in-law

15 to take certain things out, and so I did. And he also left the key to the

16 flat there.

17 Q. You mentioned, Mrs. Pocrnja, that you did not trust him.

18 A. Yes.

19 Q. Could you tell us why?

20 A. Why? Because one day he says -- now he says one thing, now he

21 says another. He told me things, but I simply did not believe them. He

22 said he was married to a physician, but from what I could see, he was

23 simply a dirty man men, a ne'er-do-well, a no-good, and I do not think he

24 was worthy of a physician.

25 Q. What did he say about himself?

1 A. How he spoke about himself? Well, nothing. Nothing. He just

2 said that he was a translator and a journalist, nothing else.

3 Q. From what you remember and what you know, was he a modest man or

4 was he --

5 A. Well, in the beginning he was quite modest and did not use any

6 violence, but then he changed.

7 Q. Would you agree that during that time while he lived in your flat,

8 that you came to know him rather well?

9 A. Yes, I did come to know him pretty well.

10 Q. And your final conclusion about his character would be what?

11 A. He is a no-good. That was my impression. And it is up to you,

12 Your Honours, what you can conclude from this.

13 Q. Mrs. Pocrnja, you worked for the Vitezit company for years. Did

14 you have an opportunity to meet Mr. Mario Cerkez?

15 A. Yes. Yes. Shall I tell you about him?

16 Q. And what would you tell us about him?

17 A. I would tell all the best, because I know him from the company

18 when I started working there. I do not know when he started working there

19 and I really didn't want to find that out, even though I could. I was a

20 courier there. I carried their mail. And he brought military summons and

21 I distributed them. But he was a polite man. He always thanked me.

22 I know his family, that they are very nice. She is -- her name is

23 Ivanka, and his father also worked for the post office, and his mother

24 works for the post office, and I know -- I can say only the best about

25 that family.

1 Q. In those contacts you had with Mr. Cerkez, did you ever hear him

2 speak pejoratively about other peoples, Muslims or anybody else?

3 A. No, never. It was brotherhood and unity with us. We worked

4 together, partook our meals, ate together, and almost slept together

5 there.

6 MR. MIKULICIC: [Interpretation] Thank you very much, Ms. Pocrnja.

7 I have no further questions.

8 MR. NAUMOVSKI: [Interpretation] Your Honours, Mr. Kordic's Defence

9 has no questions. Thank you.

10 Cross-examined by Mr. Lopez-Terres:

11 Q. Good morning, Ms. Pocrnja. I'd like to know a detail about your

12 occupation. You said that you had been working in Vitezit, which is now

13 called Cromen. What was your job precisely?

14 A. I worked as a courier, as a mailwoman. I don't know how to

15 describe it. And I worked for the general affairs department.

16 Q. And you told us that Mr. Mario Cerkez was also working in the

17 company; is that right?

18 A. Yes.

19 Q. You told us that you used to take the summons, the military

20 summons that he was drafting. Could you be more specific about that?

21 A. I can't tell you much. He would bring those summons. And when I

22 couldn't understand the address, then I would take it back to him, asking

23 him for the precise address, and he would thank me for that. And he would

24 give me another summons with a precise address, and I would take them and

25 he would thank me again and say, "Thank you very much, you're a very good

1 worker."

2 Q. At that time where was Mr. Cerkez when he would hand over those

3 summons to you?

4 A. He would come to my office. We worked in the same building. No.

5 I worked in one building and Mario Cerkez worked down in the basement.

6 There was nothing there, a MUP, police, whatever you call it. And then

7 I'd do my job, I carried out successfully, and I tell him and he says

8 again, "Thank you very much."

9 Q. But this goes back to 1990 or 1991, I suppose.

10 A. Well, if I -- it was before the war, if I worked, because

11 sometimes I would be on a waiting list for a month or two, never mind,

12 then I would work for a while and then they would send me back on the

13 waiting list, so I can't really remember.

14 Q. Thank you. But during the conflict you didn't see Mr. Cerkez

15 again, did you? You no longer had any contacts with him, had you?

16 A. No, I did not. All I heard was that he was in the hotel over

17 there, nothing else.

18 Q. As regards Mr. Breljas, first of all, you told us that you met him

19 through acquaintances of yours.

20 A. Yes, I did say that.

21 Q. So these acquaintances of yours were other members of the

22 Vitezovi, weren't they?

23 A. Yes. Yes.

24 Q. So you knew members of the Vitezovi. I could mention some names.

25 You knew Mr. Medjugorac, didn't you?

1 A. I did. Zeljo Medjugorac and Stipo Babic. They brought him and

2 said, "Well, here you have this one. He'll be with you and it will be

3 easier for you. We shall be back." But they just left him at my place

4 and never came back.

5 Q. So you knew perfectly well, when Mr. Breljas was introduced to you

6 for the first time, you knew perfectly well that he was a member of the

7 Vitezovi?

8 A. No, I didn't, because he told me, Medjugorac, that he worked for

9 Vitezovi. That was that last day. I didn't know about it before. And

10 Stipo Babic, that he was a translator.

11 Q. Thank you. You signed a summary, which you read. The summary was

12 submitted to us. I'd like to give you a read of this. You say in

13 paragraph 2.2 that, through acquaintances, and you've just given some

14 names, some acquaintances of yours in the Vitezovi, "I was introduced to

15 Breljas. He was in civilian clothes and he told me that he worked in the

16 PPN, special purpose unit, in the elementary school in Dubravica." So he

17 told you that on the first day, not later, because you say that yourself

18 in your summary.

19 A. No. I heard that he worked for Vitezovi, but I did not believe

20 it, because propaganda and -- what do I know? Perhaps they're lying or

21 saying whatever. So he himself, when he came, told me that he worked

22 there and then he was given the clothes later on.

23 Q. You explained to us that there was some kind of an arrangement

24 between you and Mr. Breljas for him to come and live at your place. Are

25 you sure that that's the way things unfolded? Is that really the way it

1 happened, what you're telling us today?

2 A. No. I didn't know him before, until he came to my flat, until

3 those two friends of his, those two chums of his brought him to me.

4 Q. Mrs. Pocrnja, your flat was a small flat; there was only one

5 bedroom, wasn't there, in it?

6 A. I made two: a small bedroom and a living-room. It is a flat of 33

7 metres square.

8 Q. And you never had any relations with Mr. Breljas; that's what you

9 said today.

10 A. No, no. No, no. Never. I keep repeating that I never had an

11 affair with him. He did try, but ...

12 Q. And he stayed with you in a 33-square-metre flat for quite a

13 period of time and never anything happened between the two of you; is that

14 right?

15 A. No, never. After a month or a month and a half, and right before

16 he was expelled, and then he spent another ten days there, or perhaps

17 five. And when he realised that I had left, that I was no longer there,

18 and then somebody ordered him to leave the flat and he called my

19 sister-in-law to take my -- to take his things to where --

20 Q. So no matter what the type of relation you may have had with him,

21 it didn't last more than a month, or a month and a half at the most?

22 A. Yes, not more than that.

23 Q. So that is between -- from July to August 1993, at the most?

24 A. July, August --

25 Q. And in the daytime, Mr. Breljas, as a member of the Vitezovi,

1 would go to his barracks, took part in operations, in actions with the

2 Vitezovi, so you wouldn't see him at all during the day?

3 A. Well, he would sometimes come during the day and would have a meal

4 and do something, and then go back, but I did not react at all. I tried

5 to be away as much as I could.

6 Q. Mrs. Pocrnja, during the month or the month and a half when he was

7 at your place, he never really said what he was doing with the Vitezovi.

8 He wouldn't keep you abreast of what was happening for him and the

9 Vitezovi?

10 A. No, he didn't, no.

11 Q. You said earlier on that many soldiers came to search your flat,

12 looking for weapons or other military. The soldiers you mentioned, I

13 suppose they were HVO soldiers.

14 A. Well, there were all sorts of troops. I didn't know whose they

15 were. There were HVO, there were some Andricevci, Andric's men, Zuti

16 Mravi, Yellow Ants. There were all sorts of troops. You couldn't really

17 tell. They did not all come to my flat, but many of them came to the

18 building in which I lived.

19 Q. But those soldiers you mentioned, they were Croats; they were not

20 Muslims. I think we agree on that, don't we?

21 A. Yes, we can say that. I'm saying they were Croats.

22 Q. Were those the only soldiers that would come and visit you?

23 A. No. Their uniforms varied, they were Croats.

24 Q. You didn't quite understand my question. Maybe I didn't put it

25 very well. You would receive the visit of other soldiers, didn't you, and

1 they were not coming for searches? You would get the Vitezovi people or

2 from the Jokeri, and this would happen on a totally voluntary basis,

3 wouldn't it?

4 A. [Previous translation continues] ... come to my flat. Well, I

5 had to do this. I was a single woman alone without protection. There was

6 no light. And when they say that they are the army and knocking on the

7 door, I had to open.

8 Q. What I mean is that they were not always coming for searches,

9 there were -- soldiers who would come with bottles to spend a bit of time

10 with you, wouldn't they?

11 A. No. I didn't allow anything like that, because I had two

12 waitresses, Muslim girls, who were tenants and they had tried to bring

13 soldiers and I told them, "I am an elderly woman, I shall not allow anyone

14 to smoke and make merry all night in my apartment."

15 Q. Well, you told us that Mr. Breljas, on one occasion, had been

16 violent with you and more specifically that he had slapped you in the face

17 but this only happened once if I understood properly, didn't it?

18 A. Yes. He slapped me once several times, and he started to choke

19 me, to stifle me, and he stopped, but he left fingerprints on my neck and

20 he had also pressed my wrist so hard that my watch was almost engraved in

21 my hand and he also threatened to extinguish cigarettes on my body.

22 Q. At the time that you were speaking about, were you examined by a

23 doctor?

24 A. No, I didn't. I didn't go to see anyone because there was

25 shelling. There was shooting. I didn't dare to go out. I made due with

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1 the food that I had. I took life in --

2 Q. But you do not have any medical certificate that you could show

3 us?

4 A. No. No. I didn't go and see a doctor.

5 Q. Did you happen to go and see the police, the civilian police, the

6 military police, to report to the police about Mr. Breljas?

7 A. No, I didn't dare to. I didn't dare go anywhere.

8 Q. In the building in which you lived and in which Mr. Breljas lived

9 for sometime with you, there was, indeed a person named Kata Rajic; is

10 that right?

11 A. Yes, there was.

12 Q. And Mrs. Kata Rajic was a young widow. She was younger than you

13 were at the time.

14 A. Yes. She was born in 1947.

15 Q. And you would agree with me in saying that after some time,

16 Mr. Breljas became more and more friendly with that person.

17 A. What can I tell you? Yes, they made friends and, she was also

18 friendly with me. She called on me, and it seemed that they had been

19 discussing his possible move to her apartment. She was -- she had been

20 married to an older man, 65 or so, and to her, Breljas was the first prize

21 in a contest. She would have been more than happy to take him. Of

22 course, I wasn't sorry to see him go. I had been looking forward to it.

23 Q. Mrs. Pocrnja, you are telling us that you agreed to Mr. Breljas

24 leaving you in order to live with a neighbour of yours. I'm not at all

25 sure that that's the way things happened. It never happened that you

1 became aggressive to that neighbour of yours because she was a bit too

2 close to Mr. Breljas, that you did that in the street?

3 A. No. No. It never happened anywhere. We hadn't been on speaking

4 terms until recently. She turned her head away when we met in the

5 street. I don't know why, but we never had a quarrel. I never said a

6 word to her because I wanted him to go. It didn't matter to me where he

7 went. What mattered to me was that he should leave my apartment.

8 Q. Once again, well, if you really wanted him to go, and if things

9 had happened as smoothly as you say they did, why did you have any reason

10 for being aggressive to that woman in the street? I mean that's why she

11 wouldn't talk to you because you were aggressive to her in the street, and

12 you couldn't stand her having a relationship with Mr. Breljas.

13 A. No. I never said a word to her. If you, Your Honours, believe

14 this kind of thing, I simply don't know what to say. I never said a word

15 to her. We were neighbours. We were good friends. I would have never

16 said anything to her. Whatever anybody might have said, Breljas or

17 anybody, it's their problem. It's Breljas' right to defend himself, but

18 you can invite Mrs. Rajic to come face to face with me, and I would like

19 to hear her say out loud that I had attacked her.

20 Q. You came here in order for truth to be established on this matter,

21 in order to speak about Mr. Breljas, among other things. Are you sure you

22 are not here to settle personal accounts with Mr. Breljas, Mrs. Pocrnja?

23 A. No. I never thought that I would be here in the first place. If

24 I had known, then I wouldn't, perhaps, have given any kind of statement.

25 If I had known what would -- what I would experience here, I wouldn't take

1 the plane and take all this. I see enough of you on television.

2 MR. LOPEZ-TERRES: [Interpretation] I believe that I have put

3 enough questions given the substance of this testimony. I have no further

4 questions to put to this witness.

5 MR. MIKULICIC: No questions in redirect, Your Honour.

6 JUDGE MAY: Mrs. Pocrnja, that concludes your evidence. Thank you

7 for coming to the Tribunal to give it. You are free to go.

8 THE WITNESS: [Interpretation] Thank you too.

9 [The witness withdrew]

10 JUDGE MAY: Before we leave closed session, we are in open

11 session. We'll go into private session for one moment.

12 [Private session]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [Open session]

19 JUDGE MAY: The matters of administration and ruling which I have

20 are really four matters. There is the evidence of Dr. Ivas and we've seen

21 the submissions about that. There are affidavits, both of these two we

22 could consider fairly quickly, I would hope.

23 Two other matters, Mr. Nice, perhaps you could deal with. One is

24 a video which I understand you certainly mentioned earlier in the case,

25 that you were preparing of the locality.

1 MR. NICE: Yes. It's been prepared. What happened was we were

2 able -- it's an amateur video, I have to say, but we were able to make

3 visits to particular places we wanted to, and we were and then made

4 contact with and indeed met Mr. Kovacic in order to see what other

5 locations he would like us to video for him. The time table got a bit

6 crushed, but I think we managed to locate all or most of the places that

7 he wanted videoed, and the long tape is in the process of being edited

8 down to size. As soon as it's down to size, I will make it available to

9 everyone and we can call a witness who'll deal with it. And I don't think

10 it will take long to present because we can collapse the extended footage

11 of various places to what's the essence of the thing that we'd like you

12 and Mr. Kovacic and that we would like and Mr. Kovacic would like you to

13 see.

14 JUDGE MAY: So it would be an hour or so.

15 MR. NICE: I think the actual video will be less than that there

16 may of course be some questions of the witness whom we're producing.

17 JUDGE MAY: Perhaps you would keep us informed as to whether and

18 when it's ready, and then we can fit it in at some appropriate time,

19 perhaps the week of the 20th of November.

20 MR. NICE: Certainly.

21 JUDGE MAY: The other matter concerns the Kordic Defence exhibits

22 which were produced at the end of the case, of his case and were subject

23 to scrutiny and oversight by the Prosecution. I have now been passed the

24 objections which I understand remain, and there are some substantial

25 objections on which the Chamber will have to rule. No doubt you would be

1 ready to deal with that at an appropriate time.

2 MR. NICE: Yes. I must say it's lost to memory as to when it was

3 dealt with. I can try to dig out the material for today after the break,

4 if you wish, but otherwise perhaps next week.

5 JUDGE MAY: Yes, next week, I think, so that we can prepare it.

6 Perhaps I could deal with Mr. Sayers. You've seen the -- have you seen

7 the Prosecution objections.

8 MR. SAYERS: My understanding, Mr. President, was that our team

9 sat down with the registrar and representatives of the Prosecution before

10 the summer break. I believe your legal officer was involved too, as

11 directed by the Court, and that these objections were resolved or the --

12 all remaining matters were ruled upon -- not ruled upon but all remaining

13 matters were addressed with the sole exception of the number of documents

14 that had been submitted for translation.

15 I can tell you that of the materials that we have submitted, we

16 believe that there are 76 translations that are still outstanding. 74 of

17 them are Blaskic orders that are part of Exhibit 307/1 and 308/1. And the

18 other two are parts of Exhibit 331/1, Tabs 60 and 68. There is an order

19 by Colonel Palavra, and a disciplinary order. Those are the only other

20 items outstanding.

21 JUDGE MAY: I have here a table, schedule of objection dated the

22 12th of September.

23 MR. SAYERS: I have not seen that, Your Honour.

24 JUDGE MAY: It may be that lines are totally crossed. It may be a

25 document which has been produced internally.

1 MR. NICE: Yes. Ms. Kind who was present at the negotiations

2 Mr. Sayers referred to recalls events being pretty much as Mr. Sayers

3 described it. So I think this is probably a matter for resolution by

4 agreement or probably by agreement save a few matters but perhaps you can

5 give us time to think about that.

6 JUDGE MAY: Well, it's a matter that should be addressed next

7 week. What I'll do is ask the legal officer to be in touch with both

8 parties with this document. It may be that it's resolved itself

9 meanwhile, but there are substantial objections which look as though

10 they've got to be ruled on, but it must not slip consideration.

11 Well, then, the matters outstanding are Dr. Ivas, thank you,

12 unless there's anything else you want to add.

13 MR. SAYERS: [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 Two final matters, three final matters. First, we would like to

20 request permission from the Trial Chamber to visit with the second

21 defendant, Mr. Cerkez, so that we can go over some areas of testimony that

22 we would expect to cover in cross-examination. Unfortunately, it looks

23 like the only date that's available for both Mr. Naumovski and myself is

24 Saturday the 14th, and that requires a special request from the Trial

25 Chamber apparently because visits on the weekends are apparently not

1 permitted.

2 JUDGE MAY: Well, provided there's no objection from those

3 representing Mr. Cerkez, leave will be granted.

4 MR. KOVACIC: No, Your Honour. I was asked about that, and I only

5 insisted that it wouldn't be on Friday the 13th.

6 JUDGE MAY: Very well.

7 MR. SAYERS: The second matter is, Your Honour, we have received

8 the final delivery of materials from the headquarters of UNPROFOR in

9 Kiseljak, a large quantity of documents. There may be some small quantity

10 of documents that we would wish to add by way of a supplement to our

11 previous submissions and they are all -- they all really deal with convoy

12 matters. They are frankly of peripheral significance but we would request

13 leave to provide an additional supplement of exhibits.

14 And then finally, we have received a copy of a document from

15 the -- Ms. Featherstone I believe to Mr. Dubuisson regarding a CD rom of

16 about 300 or so documents that apparently the ECMM is making available

17 pursuant to your order, but we have not received that document yet and I

18 don't know what the status of that is.

19 JUDGE MAY: We'll make inquiries about that.

20 MR. SAYERS: And if I might just return to the first item, Witness

21 AT. Specifically, Your Honour, what we're looking for is --

22 JUDGE MAY: Just a moment. I think we have the point. I don't

23 think we need pursue it anymore.

24 MR. SAYERS: Would you like us to prepare a list of the documents

25 that were in closed session?

1 JUDGE MAY: Yes.

2 [Trial Chamber confers]

3 JUDGE MAY: Turning now to the proposed evidence of Dr. Ivas, we

4 have the summary. He is apparently an assistant professor in the

5 University of Zagreb, teaching phonetics and allied subjects, and it's

6 proposed that he give evidence on communications, and the subject is a

7 conversation between Colonel Morsink and Mr. Cerkez, about which the

8 Colonel's evidence was to the general effect that the accused appeared

9 unconcerned about the shelling of a mosque. And as I understand it,

10 Dr. Ivas has assessed this evidence and concludes that the Colonel's

11 interpretation of the accused's reaction was incorrect and due to

12 misunderstandings.

13 We have the objection of the Prosecution, which is that, first of

14 all, that this expert can't, if he is an expert, can't assess the

15 situation, since he wasn't there at the time, but there was a video

16 recording of it, as I recollect. And the Prosecution say it's a matter

17 for the Trial Chamber to determine whether the Colonel's evidence is

18 correct or not about the accused's attitude, that it's very much a matter

19 for them to determine the demeanour, et cetera, and that an expert's view

20 won't assist. Anyway, they say it will be a waste of time on such a

21 peripheral issue.

22 Mr. Nice, is there anything you want to add to the objection?

23 MR. NICE: Not really. Just a few sentences. I mean, obviously

24 one might well relish, simply as an advocate, the proposition of dealing

25 with evidence of this kind because it would be an interesting exercise.

1 But I think important matters of principle probably are due forth for

2 consideration, because this witness is plainly trying to give an opinion

3 on what was being said, on the accuracy or inaccuracy, on the truth or

4 falsity of what was being said, as well as attempting to judge the

5 demeanour of the witness.

6 It's not really clear that this is, indeed, a proper area of

7 expertise. It doesn't speak, I think, in his citation of publications or

8 experience, of this being a known and accepted area of expertise and one

9 in which he's given evidence in any other court or on any other occasion.

10 Indeed, I'm not aware of any other person giving evidence of this kind.

11 And the utility, let alone necessity, of such evidence has to be

12 considered perhaps in this way.

13 If a Chamber is going to allow a value judgement to be put by an

14 independent witness on one particular piece of evidence, what does it say

15 for the ability of the Chamber to deal with all the other evidence which

16 falls into an essentially similar, if not identical, overall type? The

17 Chamber is, as it were, requiring additional assesses, perhaps one for

18 each side, to look at the evidence from the witness box of a witness, or

19 to look at what's shown on tape or what's recounted of a witness, and to

20 say, "Ah, well, although we, as Judges, are ordinarily regarded as able to

21 judge truth or falsity when it falls from the mouths of

22 witnesses -- that's our job -- with these particular people, because they

23 come from Travnik and are subject to very particular historical

24 characteristics, we aren't able to judge them and we need additional

25 assessment."

1 I respectfully suggest that that is a startling proposition and

2 one that we should not support in any way. And the Chamber will have in

3 mind that at the end of the witness's report, he goes a long way towards

4 final conclusions about what had actually happened in this conversation.

5 He says that it was a case of misunderstanding at various communicational

6 or communicative levels, and so on.

7 To allow evidence of this kind in on this particular exercise

8 would be entirely contrary to the general practice of these courts, which

9 is built on the assumptions that professional Judges can and should judge

10 these matters for themselves. The Chamber will have the witnesses from

11 both sides of this particular conversation to deal with. It will, as a

12 matter of fact, have other evidence not available to this alleged expert

13 on Cerkez's demeanour and response to other killings. There's one

14 particular witness who has spoken of that. And the Chamber will be able

15 to make its mind up at the end of all the evidence. It doesn't need and

16 shouldn't permit this evidence in.

17 MR. MIKULICIC: [Interpretation] Your Honours, with your leave, I

18 should like to address briefly the objections by my learned friend in the

19 sequence in which they were presented. The first objection, which was in

20 writing but which was not repeated today verbally, is that the Defence did

21 not comply with the deadline of 21 days as for the announcement of expert

22 testimony.

23 We submitted our proposal on the 28th of September, so we can

24 comply with -- we can still fit within the deadline until the 20th of

25 October. So that should not be a problem. If that continues to present a

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1 problem, then Dr. Ivas's testimony, which we originally planned for next

2 week, we could defer it to the end of our case. So if that is the

3 difficulty, we are quite prepared to comply with the decision of the

4 Chamber or suggestions of our learned friends from the Prosecution.

5 As for other objections which go to the substance rather than the

6 procedure, I simply cannot agree with my learned friend, who said that

7 such testimony would be an interesting exercise. I do not think that

8 anyone here in the Court is bent on witnessing this exercise. The purpose

9 here is to reach enough facts on which valid judgements can be made. It

10 is quite true that this witness was not present at the conversation

11 between Colonel Morsink and Mario Cerkez. Nonetheless, there is an

12 authentic video recording of that conversation. If we agreed that there

13 cannot be expert testimony on something that the expert witness in

14 question was not personally present at, then the whole science of

15 graphology would be brought into question, because graphologists and other

16 people analysing handwriting are not present at the time when something is

17 written. But nevertheless, there are records of such things.

18 It is also quite true that such expert testimony perhaps is not a

19 common thing, but there's always the first time. Fingerprinting was not a

20 common procedure, yet it also happened for the first time once upon a

21 time. Unlike our learned friends, we believe that the expert testimony of

22 Dr. Ivas would be of paramount importance for the better understanding of

23 circumstances and facts of consequence in this case. The fact of the

24 matter is that a large number of exhibits, be it material evidence or

25 eyewitness testimonies produced before this Chamber, have come from a

1 completely different civilisational, cultural milieu/environment than the

2 cultural civilisation environment of Central Bosnia.

3 Let me quote an example to understand the communication. If you

4 talk to someone who evidently is a part of the European civilisational

5 milieu, and if he waves his hand from left to right, you will no doubt

6 assume that he is saying no. However, if you have a Bulgarian before you,

7 then this hand movement means, in fact, yes, and that is a form of

8 communication which is inherent and which is an idiosyncratic form of

9 communication in that particular environment.

10 A better understanding of this kind of communication can only

11 contribute to the better grasp of the truth in this case, and that was why

12 we decided to present to the Court this side of the coin as well, because

13 we believe that one of the problems -- perhaps not the most important one

14 but at any rate an important one -- regarding the events in dispute is

15 the -- or was the absence of proper and valid communication or perhaps

16 shortcomings in this communication. No doubt the members of this Chamber

17 are professionals and they will be considering the validity of evidence.

18 And of course Mr. Ivas is coming to present to us his opinion on a

19 subject, but not as a layman, because he is an expert in communication

20 sciences, and we think that his knowledge, his expertise, can be an

21 important contribution to this case.

22 [Trial Chamber confers]

23 JUDGE MAY: We'll adjourn now for the break, quarter of an hour,

24 and then we'll consider the affidavits and we'll consider these

25 submissions.

1 Before I forget, let me mention this: Monday morning we have to

2 start rather later than usual, 10.15. We will take a short break later in

3 the morning, have the usual break at lunchtime, rather later, and then we

4 will take a short break during the afternoon and finish at 5.00.

5 --- Recess taken at 10.41 a.m.

6 --- On resuming at 11.00 a.m.

7 JUDGE MAY: I'll give the ruling of the Trial Chamber. The

8 evidence which it's proposed to call is that of a Dr. Ivan Ivas, assistant

9 professor in the University of Zagreb teaching phonetics and allied

10 subjects. It's proposed that he should give expert evidence about

11 communications. That evidence would relate to the video recording of a

12 conversation between a Prosecution witness, Colonel Morsink, and the

13 accused, Mario Cerkez, about which the Colonel's evidence was to this

14 effect: That the accused appeared unconcerned about the shelling of a

15 mosque.

16 Dr. Ivas has assessed this evidence and concludes that the

17 Colonel's interpretation of the accused's reaction was incorrect and due

18 to misunderstandings. The Prosecution object on various grounds,

19 essentially that it is a matter for the Trial Chamber to determine whether

20 the Colonel's evidence is truthful or not and whether his assessment of

21 the accused's reaction was an accurate one or not. With that objection,

22 the Trial Chamber agrees.

23 What it was proposed to call this expert on was a very narrow

24 issue indeed. In a case which has lasted as long as this with as many

25 issues as there have been, it must be doubtful whether it is in any way to

1 allow an expeditious trial to allow evidence of this sort in. But in any

2 event, the substantial reason for refusing this evidence is that it is for

3 the Trial Chamber to assess the credibility and the truthfulness of

4 witnesses and, therefore, if this witness were to give evidence upon this

5 topic, he would do so either as an expert in which case he would be

6 trespassing on the Trial Chamber's province or if he were doing it as a

7 non-expert, he would be offering an opinion which would not be allowed.

8 There is a general matter of principle which is this: How much of

9 such evidence should be permitted? There is a danger if, in a case of

10 this sort, evidence were permitted, why then on every issue of which

11 credibility of witnesses arose, it may be said that experts of various

12 sorts or witnesses should be called and that cannot be in the interests of

13 fair and expeditious trials.

14 For those reasons, the evidence will be excluded.

15 Judge Bennouna.

16 JUDGE BENNOUNA: [Interpretation] Yes. The decision that has just

17 been handed down is a very clear one. I only wanted to add something to

18 the reasons, and I do this in agreement with my other two colleagues of

19 the Chamber to say this: The Chamber was very sensitive to the argument

20 put forward by the Defence which said that there may be various cultural

21 differences in the way people behave and there can be misunderstandings

22 that may arise from such cultural differences.

23 Whilst such an argument may be valid before a national court, it

24 is inappropriate before an international jurisdiction which is made up of

25 judges who, themselves, come from various backgrounds and horizons and

1 have various experiences. This international jurisdiction is now dealing

2 specifically with a conflict whose origins go back to ethnical, religious,

3 and cultural differences.

4 Therefore, since we are professional judges, we have open minds

5 and we are aware of this obligation which is due to our own profession to

6 be open to any cultural differences whenever there are depositions or

7 testimonies. They are aware of that when they draw their conclusions. So

8 we say this as Judges of this Chamber only to add to the reasons already

9 put forward regarding our decision.

10 JUDGE MAY: We turn next to the question of affidavits. At the

11 moment, we have six, but can I begin with one point which is that I do not

12 have attached to my papers the affidavit of Zdenko Saric. I have all the

13 other papers but I don't have the affidavit. I wonder if I could have a

14 copy, please. Yes, I now have a copy.

15 Yes. Are the Prosecution in a position to deal with at least some

16 of these?

17 MR. NICE: I'm in a position to deal with all of them. I'm sorry

18 that I haven't tabulated our position. It's simply a position of pressure

19 of work and to some degree the lateness or the recent time at which these

20 affidavits were being dealt with.

21 May I make one general observation before I turn to them

22 individually, namely to repeat what was said in our submission a couple of

23 days ago on the topic of rebuttal evidence. To repeat what was said or

24 summarise there of the recent Appeals Chamber's ruling that informs us as

25 to how we should deal with affidavits.

1 There are just two short passages of that recent ruling, paragraph

2 30 which, speaking of Rule 94 ter says of the sequence of events, speaking

3 of an accused, but it applies equally to the Prosecution, that an accused,

4 that, "The sequence ensures that an accused has an opportunity to consider

5 the proposed affidavit evidence before the live testimony of a witness on

6 a fact in dispute and thereafter as so desired to apply to the Trial

7 Chamber for the right to cross-examine."

8 And paragraph 31 speaking of the integral and fundamental part of

9 the rule, it says, "It ensures that a party is informed of the facts in

10 question and, in doing so, enables them to cross-examine the future live

11 witnesses as to the disputed fact on the basis of the affidavit evidence

12 challenging both credibility of the live witness together with the

13 truthfulness and accuracy of the statements contained in the affidavits.

14 If a party fails to comply with this requirement, material prejudice may

15 be caused as the timing requirement is not only a technical requirement

16 but also upholds the rights of the opposing party."

17 The Chamber will recall that the practice developed in the Kordic

18 Defence of affidavits, typically, not always, but typically was being laid

19 on the bench of the Prosecution as the live witness came to give evidence

20 regularly, not always, but regularly, the witnesses hadn't been listed

21 either on the general list of Defence witnesses, let alone with specific

22 notice that they were going to give evidence. I was probably far too easy

23 going and didn't raise that particular issue on very many occasions, but

24 as I say in the general submission we've made about rebuttal evidence, the

25 provision of affidavit statements at that late stage simply doesn't really

1 fit with the decision of the Appeals Chamber.

2 Mr. Kovacic, last week Monday, suggested then that indeed to lay

3 the affidavits on our desks at that time was to be in accordance with the

4 Rule. I didn't quarrel with him then, although I noticed him saying it.

5 Some of the affidavits since we've dealt with have some very recently one

6 or two have been given with the odd day's notice.

7 The reality is, for the Prosecution responding to these

8 affidavits, entirely unlike, it has to be said, affidavits served and now

9 excluded on the Defence, is that we've had either no or almost no time to

10 deal with them by any form of research. The Chamber will -- should know,

11 incidentally, as a matter of interest, that where we've attempted, after

12 the event, to pursue matters with certain Defence affidavit witnesses, as

13 we are entirely entitled to do, we have received no cooperation of any

14 kind from the individual witnesses and therefore have been unable to check

15 matters we wished to check.

16 So at this stage, and with the Appeal Chamber's decision in mind,

17 I will be inviting the Chamber to pay more attention to the fact that

18 these affidavits have been, in certain instances, prepared very early and

19 served very late. The Chamber will, I think, have an understanding of the

20 difficulties that we face and how we respond to it when it will recall

21 that with one particular affidavit, namely, Sero, we were able to, by

22 internal research, we were able to deal with a number of aspects of his

23 testimony and indeed show that it's inaccurate and shouldn't be relied

24 upon. I'll come to that in due course. But the very -- the difference

25 between the way we were able to deal with that witness and the way we've

1 simply been unable to deal with other witnesses because of the lateness of

2 service probably makes the point.

3 Thank you for letting me make those general observations, and I'll

4 now deal with them in whatever order that the Chamber would wish, making

5 such individual points as I would want to make.

6 JUDGE MAY: They're numbered 3 to 8, 3 being Drazenko Vidovic, 4

7 Zdenka Saric, 5 Ulfeta Tuco. Those were filed on the 25th of September

8 and I think therefore you certainly should be in a position --

9 MR. NICE: I'm happy to deal with all of them.

10 JUDGE MAY: Perhaps you'd like to deal with those: Vidovic,

11 Saric, Tuca, in that order.

12 MR. NICE: Vidovic, incidently, was on the Defence -- the Cerkez

13 Defence first witness list. He was deleted from a later witness list and

14 then replaced on a yet later witness list, so he has been listed, but in

15 that way.

16 Vidovic, the Chamber will recall, is the witness who is said to be

17 in support of Semren's evidence. The Chamber will recall the redheaded

18 witness Semren and the number of documents that we produced going to show

19 the inconsistency, fundamental inconsistency, between the evidence he was

20 given and the documents, and between the evidence he was giving and the

21 evidence of this man. In particular, the Chamber will recall that whereas

22 Semren and this proposed deponent would say that Vidovic took Semren away

23 on Semren's journey first to one hospital and then onward elsewhere,

24 although he said that, we know that there are documents going to suggest

25 that Semren was himself the witness to the injuries of Vidovic, which

1 Vidovic says in his affidavit, at paragraph 4, that shortly after he had

2 helped Semren, he was wounded in front of his house.

3 JUDGE MAY: Can I interrupt you? The affidavit, so that we have

4 it, says that "On the 16th of April, in the afternoon, I saw my neighbour,

5 Ivica Semren, who was calling for help near his house. He was injured and

6 I helped him. Shortly afterwards I was wounded in front of my house."

7 MR. NICE: That's right, yes. And Semren explained that the help

8 he gave him was to drive him away -- I can't remember precisely to which

9 location, but drove him away. There was no question of Semren being a

10 witness to the injuries that Vidovic suffered. That simply wasn't

11 possible on his account. And yet the documents that we produced showed

12 that Vidovic was -- Vidovic's injuries were apparently witnessed by

13 Semren. And the Chamber will also recall that the documents showing the

14 injuries of both men suggested that their injuries were in the course of

15 active service, and the Chamber will recall the odd feature of Semren, who

16 would claim effectively to have been disabled in the area of Ahmici before

17 really the fighting proper broke out. You will recall that he was

18 nevertheless awarded a medal. The whole story is one that, if it's to be

19 before the Chamber at all, should be properly explored.

20 JUDGE MAY: Have we not been in the position -- are we not in the

21 position to judge the credibility of this evidence, given the full

22 cross-examination of Semren and the production of the documents?

23 MR. NICE: Well, in one sense, I would entirely agree with that

24 proposition and say yes, because you're able to judge it and reject this

25 evidence. But it may be that that proposition is a proposition that has

1 to be measured beside the provisions of 94 ter. Can we really -- and in

2 light of the Appeal Chamber's ruling. Can we leave it on that basis when

3 it is said: If the party objects and the Trial Chamber so rules, the

4 witness shall be called for cross-examination.

5 We have presented to the Chamber through Semren the material that

6 would go to show the unreliability of Vidovic. If the party proposing to

7 call Vidovic wishes to establish his evidence as true, in the light of

8 what we presented and our request for cross-examination, then it may be

9 that it would be unfair to the party seeking to call him to proceed on the

10 basis that the affidavit could be rejected at this stage, as it were, this

11 stage of the evidence, not by way of final decision, because the Chamber

12 hasn't heard argument. That's our position on that witness.

13 JUDGE MAY: We'll consider that. Just one moment.

14 [Trial Chamber confers]

15 JUDGE MAY: Mr. Kovacic, we think this is an important witness and

16 an important issue, and that the Prosecutor is right in his final comments

17 that this is a witness who should be cross-examined in the interests of

18 the Trial Chamber -- and of course we've got to make our minds up about

19 it -- and in the interests of your case. What he says is very much in

20 issue and it's, of course, about an important part of the evidence.

21 Anything you want to say?

22 MR. KOVACIC: Just one argument which I think was not

23 correctly -- perhaps it could change the picture. My dear colleague

24 mentioned that Witness Semren said what he actually didn't say. Semren

25 told us when he was presented a document in which he is listed as a

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1 witness to Vidovic, affiant witness, wounding, then he said literally

2 something like, "Nobody asked me about that accident." In other words,

3 somebody listed him as a witness, probably the wounded man, as it appears

4 that the system worked. So I don't really -- I don't actually see, on

5 that point, I don't see -- I'm not arguing with the other part of what you

6 said, but if that is a fact that the Chamber had in mind, I think it is

7 misleading or my colleague did not understand properly.

8 However, our point was the following: Semren was a witness here.

9 We heard what we heard. He was wounded. That's one of the facts we heard

10 from his testimony. Entirely on that fact I corroborated -- I was trying

11 to corroborate it, his statement on this Court that he was really wounded

12 at that time. I'm not talking about the value of affidavit statement, and

13 procedurally I don't think that that is important evidence and that that

14 is the point of the procedure.

15 As we read the Article about affidavits, 94 ter, it should be a

16 tool which should help us to corroborate, to somehow add to the value of

17 the witness who is in front of the Court. That is our opinion. However,

18 if the Court will ask us to provide Vidovic, we'll do our best. I, of

19 course, don't know the status today. He was listed as a witness.

20 Initially he said that he is ready to come and to testify. But I also

21 have to tell in advance that there were terrible rumours about how Semren

22 was treated by the Prosecution. But we will check that.

23 [Trial Chamber deliberates]

24 JUDGE MAY: He must be called for cross-examination.

25 MR. KOVACIC: We will do our best to have him here.

1 JUDGE MAY: Yes. Saric, Zdenka Saric.

2 MR. NICE: Zdenka Saric.

3 THE INTERPRETER: Microphone, Mr. Nice.

4 MR. NICE: Zdenka Saric. The proposed affidavit or formal

5 statement testimony is limited. It speaks of the imprisonment of her

6 husband between dates in July and September of 1993 by the BH army from

7 Kruscica, so it is of -- it may be argued no or, at best, very limited

8 evidence, because it's of limited value.

9 We observe the following points: that this witness was on a first

10 revised list and then not on the latest list. The testimony was taken a

11 long time ago, 24th of August, and only served very recently. I can't

12 remember whether it was the morning of the testimony or a day or so

13 before. We haven't been able to check what she says in the time and with

14 the resources available to us. We note that there is no firsthand

15 statement from her husband and that the absence of such a statement is

16 unexplained. Those are the representations we would make for the Chamber

17 to exercise its discretion.

18 JUDGE MAY: Thank you. We'll admit the affidavit. Ulfeta Tuco.

19 MR. NICE: Ulfeta Tuco. The Chamber will notice her sworn

20 statement was taken months ago, served this week, taken in June. She

21 hasn't been listed.

22 JUDGE MAY: I'm sorry to interrupt, but she is the midwife. We

23 heard about her.

24 MR. NICE: Yes. She hasn't been listed at all. We haven't

25 checked it. And maybe there's something else Mr. Lopez-Terres has.

1 [Prosecution counsel confers]

2 MR. NICE: This one was actually, I think, served after the

3 witness in whose support it purports to be tendered, so it's a complete

4 breach of the rules. We haven't been able to check the detail. There it

5 is. If I was taking the full technical line that it would be open to me

6 to take, in light of the ruling, this is a complete and simply inexcusable

7 breach. The Chamber must decide -- and I hope I've made it plain from the

8 beginning of these dealings with affidavits that I'm driven more by what I

9 perceive to be the general purpose of the -- aim of the institution rather

10 than by minutiae of rules that might be turned against one party or

11 another but -- which is why I'm making the submissions in the general way

12 I am and leaving the discretion to the Chamber in relation to a number of

13 witnesses.

14 JUDGE MAY: The pragmatic answer, the practical answer is to admit

15 the affidavit, but I'm going to raise -- Mr. Kovacic, that is a valid

16 criticism. This statement is dated the 20th of June, and yet wasn't

17 served until 25th September.

18 MR. KOVACIC: Indeed, Your Honour, there was -- I'm sorry.

19 JUDGE MAY: It's dated -- I'm sorry -- dated, the legal officer

20 points out, and I'm grateful, dated, filed 25th of September. But in fact

21 the date that we have at the top is the 2nd of October. So it's described

22 as being filed on the 25th of September and in fact it wasn't until the

23 2nd of October that it was filed. Now, it seems -- I can't see any good

24 reason for that.

25 MR. KOVACIC: If I may say, I'm not trying to minimise the

1 problem. However, we did file it on the morning of the 25th. Before the

2 witnesses for that week started to testify, we did officially file the

3 brief. However, there was a problem with translation because the same

4 affidavit was given earlier to the registry, and there was a hope that

5 those translations were already received by that morning, as was requested

6 earlier by the registry. Unfortunately, it appeared for some reasons that

7 the translations were not there.

8 Physically, that was indeed one of the reasons why I was waiting

9 to file the last morning, because I was hoping that we would finally have

10 the translations, and then I filed it without translations because I

11 didn't have any other choice. That is all. And I did inform the other

12 party and the Court, if I remember. On the end of the testimony of the

13 witness we mentioned that there is affidavit witness. So if there is

14 technical mistakes, I think some active approach from the other side might

15 have been undertook.

16 JUDGE MAY: Let us see if we can avoid these problems in the

17 future, particularly those of translation. Yes, we'll go on to Dragan

18 Sero.

19 MR. NICE: Dragan Sero, who the Chamber will recall is a witness

20 about whether or not I was able to ask a number of questions of the

21 witness Bertovic, and in whose support his testimony is proffered.

22 To summarise the effect of his proposed testimony, it is that he

23 is a relation of the late Zoran Sero, who the witness claims was in the

24 Regional Military Police 4th Battalion and not in the Vitez Brigade. He

25 says, "I know that he was killed somewhere in the line towards Mahala in

1 the early summer of 1993," and that, as far as he can remember, before the

2 conflict lists were being compiled of men who would be useful for defence

3 purposes.

4 Then he goes on to say that the contents of an article published

5 in Slobodna Dalmacija for the 11th of April this year accurately describes

6 every detail of what happened to him in connection with the fact that he

7 had used the flat of somebody's niece, and I'm not going to mention the

8 name, for reasons that will perhaps be obvious, because we are dealing

9 with potentially protected witnesses.

10 Now, this is an extraordinary document, if I may say so, and we

11 would invite the Chamber to consider simply rejecting it altogether. The

12 document is dated the 12th of June, so the same problem arises.

13 As to the first parts of his testimony, proposed testimony, he's

14 simply dealing with, at some levels of remove, what he believes to be the

15 position of the late Zoran Sero. The Chamber will recall that we have

16 produced a large number -- was it three documents, that show precisely how

17 the man is recorded and what units he's recorded as being in. And

18 although the witness yesterday may have been reluctant in the extreme by

19 the end of his testimony to answer questions with simple yes/no answers,

20 he did eventually, after the break, remember both the anti-terrorist

21 platoon and its commander, whose name had slipped his mind before the

22 break. And it's quite clear that that brigade fell under Cerkez and it's

23 quite clear that this man is listed within that brigade.

24 How this sort of testimony proposed, paragraphs 1 to 4 or 1 to 3,

25 can overturn the effectiveness of contemporary documentation is hard to

1 see.

2 JUDGE MAY: That may be something for the Trial Chamber to decide.

3 MR. NICE: Yes.

4 JUDGE MAY: Whether it be right to exclude the affidavit or

5 whether it would be right to say that that goes into the balance too.

6 MR. NICE: I think the same sort of considerations arise as to the

7 first witness, where we produce compelling witness. If the Defence want

8 to pursue this, then it would be appropriate for, however awful the

9 consequence in terms of use of time, it would be appropriate for the

10 witness to come along and say what are the sources for his knowledge and

11 otherwise, his informants, to original sources, and so on.

12 When we come to paragraph 6, the position is even more

13 extraordinary, because what is being proposed here is that a newspaper

14 article which has, in fact, been produced by Bertovic, who knew nothing

15 about it, somehow ranks as the first level of live evidence, and the

16 testimony of the affidavit comes in to support the newspaper article,

17 although the witness could give the live account of that himself. So it

18 is an extraordinary use or proposed use of affidavits.

19 Now, what's being done here is an attempt to attack an important

20 Prosecution witness in a way that I don't think -- I will be corrected if

21 I am wrong -- was ever raised with him and may or may not affect the views

22 the Chamber would have of that witness. But rather than have a live

23 witness supported by some other material, we've got a newspaper article

24 and simply an affidavit witness saying, "I support that," entirely

25 contrary to every principle that's set out in the Rule 94 ter.

1 But I have to say that it doesn't entirely stop there, for the

2 Chamber will recall that in relation to the newspaper article, I was able

3 to ask a question about the author, who is shown to be the propaganda

4 officer for the Vitez Brigade. And it's my duty to tell the Chamber -- I

5 was going to tell the Chamber about this in another setting at some stage,

6 in any event, and hadn't wished to trouble you with it yet. It's my duty

7 to tell the Chamber that the author of that newspaper article has been

8 reported to us as a person seeking to change the evidence of one of our

9 earlier and important witnesses. So that not only is it a newspaper

10 article with the problems for inherent reliability, or otherwise, of which

11 we are aware, but on information coming to us, it appears to come from a

12 partial source. So wrong in principle, and, as a matter of

13 discretion -- well, as a matter of principle, paragraph 6 can't go in this

14 way. It's rather like the way the Kordic Defence is calling a lesser fry

15 of live witnesses and then putting in the affidavits of their superiors,

16 saying that it was in support of what the lesser fry said by the way of

17 hearsay and with reduced information.

18 So one, although the document was dated the 12th of June and so

19 on, we have been able, because of internal research, to deal with this

20 particular proposed testimony. Two, in our respectful submission, it

21 shouldn't be allowed in as an affidavit.

22 MR. KOVACIC: [Interpretation] Your Honours, it seems to me that

23 we're having more trouble with those affidavits than benefits that we can

24 draw from them. And I should first like to tackle the procedural matter

25 rather than the substance of the action. The Rule says, 94(c) ter, that

1 the affidavit has to be filed before; it does not say whether it has to be

2 7, 15 or how many days before that. It only says "in advance." And then

3 the same Rule gives the Prosecution seven days to consider the text and

4 then make objections.

5 We are trying to behave and comply with the Rules as we understand

6 them. We would also be very happy if we could do it earlier, but because

7 of all the technical problems, translations, so on and so

8 forth -- nonetheless, affidavits are in some way or another related to the

9 live testimony witnesses. Now, when we have acquired an affidavit

10 following an interview which was made perhaps two or three or I don't know

11 how many months ago, we have to wait for the witness to confirm his

12 statement, and only after he's authenticated his own statement, then it

13 becomes something that I can use. So that is a matter of procedure.

14 If I understood my learned colleague well -- I'm not quite sure I

15 did -- but it is somehow intimated that the author of the article attached

16 to the statement is accused of trying to change the testimony. If that is

17 true, then, under Bosnian law, it is an offence, and I should like to

18 invite the Prosecution to undertake the steps necessary and envisaged

19 under Bosnian law and do whatever is needed.

20 Furthermore, Witness Bertovic, who was there at the time of the

21 event, told us about the event, and that is when we also procured the

22 newspaper. In this case, newspaper articles were presented not only

23 alongside witnesses as exhibits, but also autonomously in a so-called

24 binder that was submitted by the Prosecution towards the end of their

25 case. And here, a person who made the affidavit before the Bosniak court

1 in item 6 of his statement confirms the contents of an article published

2 in the newspaper which is attached, so that is, we have a witness who

3 says, "Yes, I saw the article," and that's true.

4 So if the article is problematic, then evidently this is relevant,

5 because the affidavit is there to cut short the testimony. Then the next

6 witness, who was a live witness who told us about different developments,

7 and wherever we could and whenever we could, for practical and other

8 reasons, we corroborated his statement by other documents, including

9 affidavits on three points. Incidentally, affidavits that we envisaged in

10 two out of three instances relate to so-called common knowledge events in

11 the Lasva Valley, and I mean the fall of Bobasi.

12 So perhaps in this case it is also another of the well-known

13 events, and the witness confirmed this; namely, in this event, in that

14 fighting in Kruscica, when the witness who is making the affidavit would

15 try to come back, he says that that was a very topical issue but that was

16 a very rough treatment of Croats to try to go back to the village where

17 they lived before the war. It is relevant, but I do not think it is all

18 that relevant to bring those, to call those witness to tell us who

19 expelled whom and why.

20 I think this is one of the typical examples where affidavits are

21 warranted. That is something that will corroborate the live testimony,

22 which is important but evidently not fundamentally important.

23 [Trial Chamber confers]

24 JUDGE MAY: Paragraphs 1 to 5 of this affidavit will be admitted.

25 Paragraphs 6 and 7 will be excluded. The grounds for excluding them are

1 that first of all, the Rule refers to affidavits corroborating other

2 evidence. There is none other. Secondly, it deals with events which are

3 after the time with which we are dealing. Thirdly, it is a controversial

4 and tangentious piece of evidence about which potentially there's much

5 dispute. Given all those factors, we think it fairest to admit 1 to 5,

6 exclude 6 and 7 and, of course, the article.

7 Yes, the two remaining witnesses are both Bobasi witnesses,

8 perhaps we could take them together.

9 MR. NICE: Certainly, Vinko Bobas, statement of 12th of June deals

10 with captured civilians and the killing of one elderly man. It speaks of

11 HVO members who defended Bobasi from her village or his village. I'm

12 sorry, I'm not sure about the gender. My mistake. It speaks of something

13 overheard in something that's known as "the black house" which is a place

14 used for detention. It says that that conversation suggested a 850-strong

15 Muslim army. We are quite unable to check on that content. It seems to

16 us inherently extremely unlikely. We have been unable to check it in the

17 time available despite the fact that this was prepared in June.

18 There is no firsthand evidence that this affidavit would support,

19 as I understand it, and Mr. Kovacic's attractive phrase "common knowledge

20 events" is not, I think, a substitute for evidence. The same thing,

21 therefore, when we turn to Marina Bobas, the 12th of June.

22 JUDGE MAY: Just before we get there, Vinko Bobas deals with

23 events on the 18th of July, 1993.

24 MR. NICE: Yes.

25 JUDGE MAY: It's accepted that there was an offensive around that

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1 time by the ABiH.

2 MR. NICE: Yes.

3 JUDGE MAY: It deals simply with matters in the village.

4 MR. NICE: That's right.

5 JUDGE MAY: As for the 850-strong Muslim army, well that's merely

6 some comment which is overheard.

7 MR. NICE: Yes.

8 JUDGE MAY: Yes, Marina.

9 MR. NICE: Marina, she deals with her arrest on the 2nd of May

10 with her daughters who were in a holiday house in Bobasi, taken to a

11 school in Kruscica where they were locked up on the first floor, exchanged

12 seven days later. Then she speaks of her exchange having been achieved by

13 efforts of Mr. Cerkez and Mr. Strbac.

14 I may have missed it, but I'm not sure that we've had any live

15 evidence of that. I will be corrected if I am wrong and, of course, I'm

16 grateful for the correction. So as to paragraphs 1 to 3, the same

17 fundamental principal problem is no live evidence but that apart, I'm not

18 too troubled as the Chamber will understand.

19 As to 4, it would plainly contravene the Rule unless, contrary to

20 my flawed memory, there has been accurate and proper evidence to that.

21 JUDGE MAY: From a practical point of view whether that's right or

22 not, she does frankly say that she's heard that although she doesn't have

23 any direct information on it.

24 MR. NICE: Yes, indeed.

25 JUDGE MAY: So it can't be of any great value.

1 MR. NICE: That's your position on those two and there may be

2 something I've missed.

3 JUDGE MAY: Yes. We'll admit those two affidavits.

4 Now, unless there's anything else anybody wants to raise.

5 MR. NICE: Two very short points with your leave. First, there is

6 the other Cerkez expert who deals with linguistic matters. Now, my

7 recollection, I was trying to check it with Mr. Kovacic this morning, is

8 that the whole issue of admissibility of this line of evidence was raised

9 but never finally resolved months ago, I think probably before the break,

10 something like that.

11 Second, I understand from Mr. Kovacic that the person concerned is

12 unwell and -- or not unwell, she's got to have some operation so there may

13 be some problem with her attendance next week. We would require her for

14 cross-examination if her evidence is judged relevant and admissible, and I

15 have to say that we would probably be challenging whether she is a

16 sufficient expert in any event to deal with these matters. I can deal

17 with that point, and may be in a position to serve, if it's necessary, a

18 document of expertise dealing with it.

19 JUDGE MAY: The matter -- sorry to interrupt, but the matter was

20 left that the witness was going into hospital to have an operation.

21 Perhaps we can find out, Mr. Kovacic, what the position is.

22 MR. KOVACIC: [Interpretation] Your Honours, I was about to suggest

23 a solution. Mrs. Nikolic-Hoigt [phoen] has let us know that she is

24 expecting to be -- to undergo her third surgical intervention. Whether it

25 will be next week or later on, she does not know, and we do not know. So

1 evidently, we shall not be able to call her within any reasonable period

2 of time, two or three weeks after the operation. So we were about to

3 suggest the following: If we could bring her, because evidently the

4 Prosecution would like to cross-examine her, then perhaps we could bring

5 her during the rejoinder case. I do not think it would take too long. I

6 do not think it really necessary but, of course, the Prosecution is

7 entitled to that.

8 Personally, of course, there are also expenses to think about. We

9 could do it perhaps by videolink but I have to think about -- I do not

10 think that this testimony is worth those $20.000 or so, but perhaps I

11 should say in a couple of words what the gist of her testimony is if you

12 wish me to do so to clarify matters.

13 JUDGE MAY: Just given the time now, the sensible course would be

14 that the if the Prosecution objects to the admissibility of the evidence

15 if they have not already done so, and I don't recollect they have, it

16 might be helpful to have something in.

17 MR. NICE: Yes. I think the way it was left the last time was

18 that Mr. Kovacic should explain the relevance to me and I think in the way

19 things have fallen out, we've simply overlooked that or if he's explained

20 it to me, probably I didn't understand it. But I suspect we will be

21 inviting you to -- unless there is a good reason for calling it, saying

22 that it's not evidence of relevance, and we should argue that before the

23 poor lady suffers further administrative difficulties arising from trying

24 to timetable a visit here or whatever.

25 JUDGE MAY: Well, yes. That's another matter for argument but it

1 might be helpful to have something in writing after you've spoken to

2 Mr. Kovacic.

3 MR. NICE: Yes, we'll do that.

4 JUDGE MAY: Then we'll timetable for that for argument in the not

5 too distant future.

6 MR. NICE: The only other one matter, I've got an eye on the

7 clock, Your Honour mentioned earlier in the week the possibility of there

8 being service of exhibits on Cerkez before he gave evidence. We'd like to

9 argue that matter at some stage. In our respectful submission, it doesn't

10 fall within the Rules and isn't at all in accordance with the practice of

11 the Tribunal. I have to say that the vast majority of documents of which

12 we are aware of being passed over to the defence, in any event, especially

13 the documents coming from Zagreb, in a way that you've heard about.

14 There's no particular intention to hold material back to trip people up,

15 but the plain reality is that the general line of cross-examination in

16 this institution as elsewhere is that if, in the course of his giving

17 evidence, somebody says something that can be properly contrasted with

18 documents that then become significant why, then, there should be no block

19 on the cross examining party doing that.

20 JUDGE MAY: I don't think we would have sought to do that if

21 something arose which you could not have known about obviously. But I

22 think the principle that you should disclose anything of which you intend

23 to cross-examine in and not keep anything back by way of an ambush is the

24 principle that I think we are trying to get across.

25 MR. NICE: Perhaps we could have a short discussion on that next

1 week and we'll give further consideration to it. It may have some

2 institutional or wider institutional --

3 JUDGE MAY: Very well, we'll discuss it next week. Mr. Kovacic.

4 MR. KOVACIC: Your Honour, if I may, two technical things. I

5 don't think that I will take any time. First of all, I would just like to

6 remind the Chamber that there was a document which was introduced by the

7 Prosecution to Witness Bertovic, Z692.2, one with a little note in

8 writing, if you remember, and at that time, the Chamber rightfully warned

9 the Prosecution that we should see the original of such documents. I

10 presume that this document is not entered as the evidence in the record as

11 long as this issue is not resolved.

12 JUDGE MAY: Well, it's what -- the document which should be

13 produced is the original as far as the Prosecution are concerned.

14 MR. NICE: And that we will do.

15 JUDGE MAY: Very well.

16 MR. KOVACIC: In order not to make unnecessary objections, we

17 don't have anything about the document itself -- first page of the

18 document, better to say. We object only some unidentified handwritten

19 note which was said that it is on the backboard.

20 JUDGE MAY: See the original when the Prosecution produce what

21 they have, and then you can address us on it after that.

22 MR. KOVACIC: Yes, sir. Certainly.

23 And there is only one minor thing, if I can ask the Prosecution

24 whether there is any prediction regarding the time of translation of

25 Witness AT on Croatian language, which was promised to us. We still did

1 not get it.

2 MR. NICE: My last information was that I think it was the middle

3 of next week. I will check it, and perhaps I'll let Mr. Kovacic know this

4 afternoon.

5 MR. KOVACIC: And Your Honour, I think it will be satisfactory if

6 we file the brief on the issue of Colonel Morsink renewed testimony on

7 Monday morning; is that correct?

8 JUDGE MAY: Yes, next week.

9 MR. SAYERS: Your Honour, if I may raise one mundane matter. It's

10 only a 30-second matter. It bears on the length of the rebuttal case and

11 rejoinder cases. We would just like to alert the Trial Chamber that we

12 would very much appreciate a terminal date in this case, for the mundane

13 reason that we have lease obligations to bear in mind. We had

14 planned -- our house lease and office lease runs out on the 15th of

15 December, and the lessors require a certain amount of advance notice if we

16 have to run beyond that, which I certainly hope that we would not.

17 JUDGE MAY: You have the programme.

18 MR. SAYERS: I'm obliged. Thank you.

19 JUDGE MAY: 10.15, then, on Monday morning.

20 --- Whereupon the hearing adjourned at 11.55 a.m.,

21 to be reconvened on Monday the 9^th day of

22 October 2000, at 10.15 a.m.

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