1 Thursday, 7 April 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.

5 JUDGE ROBINSON: Mr. Nice, I understand there is a point that you

6 wish to raise.

7 MR. NICE: A very short point. It seems it's probably our duty

8 for one reason or another but a little hard to decide precisely on which

9 ground to ensure that the accused is aware of a rather odd coincidence of

10 events that happened yesterday before he concludes his dealings with the

11 present witness.

12 The Court may not know this, alternatively it may have already

13 heard it from other sources, but the person Dragan Jasovic, who is one of

14 the -- one of the officials who took the statements that are, amongst

15 other issues, in issue with this witness - so for example, he's the named

16 officer in tab 52, the statement of Afrim Mustafa - was giving evidence

17 yesterday in this court and indeed in this very room, called by the

18 Prosecution in the Limaj case. Not known to us in advance, he's been

19 giving evidence, I think, on Monday and Tuesday. He's still in the

20 building, still in the town and will be in the building again this

21 afternoon, his cross-examination at the hands of one defendant having

22 concluded and cross-examination being set to continue this afternoon.

23 So there it is. He is a person who has been called by the

24 Prosecution in another case, and he happens to be here in town at the

25 moment.

1 JUDGE ROBINSON: Thanks for the information, Mr. Nice.

2 Let the witness be called.

3 [The witness entered court]

4 WITNESS: DANICA MARINKOVIC [Resumed]

5 [Witness answered through interpreter]

6 JUDGE ROBINSON: Mr. Nice, you may continue with your

7 cross-examination. Sorry. Mr. Milosevic to re-examine.

8 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.

9 In relation to the information just provided by Mr. Nice that

10 Mr. Jasovic, who is one of the authorised officials appearing in tab 52,

11 as he said --

12 JUDGE ROBINSON: Mr. Milosevic, had you wished to comment on the

13 matter, I would have thought you would have commented on it before.

14 Nonetheless, continue.

15 THE ACCUSED: [Interpretation] Well, if there's any controversy

16 with regard to the fact that Jasovic took the statement or if you think

17 that there's any problem in this regard and if you intend to accept

18 Mr. Nice's objections, I'm not opposed to having Mr. Jasovic appear here

19 and being asked a question or two as the authorised official who took the

20 statement. That would be the first time I see the man, of course, because

21 I don't know him.

22 JUDGE ROBINSON: That will be a matter for you, Mr. Milosevic.

23 THE ACCUSED: [Interpretation] All right, Mr. Robinson. If he's

24 here, he can appear, as far as I'm concerned, so that I can ask him about

25 that. It's just a detail. Perhaps it will take a minute or two.

1 [Trial Chamber confers]

2 JUDGE ROBINSON: Mr. Milosevic, if you wish that person to -- to

3 appear, then you should inform the liaison officer and ask her to have the

4 necessary arrangements made for him to testify, and we can organise for

5 him to -- to be interposed so that he will not be inconvenienced severely.

6 And you should do this by the break.

7 Would you, Mr. Nice, then, be -- what would your position on that

8 be?

9 MR. NICE: I don't know. I only heard some of the

10 cross-examination yesterday which gives rise to matters about which I'm

11 very interested but which might well require further consideration by us.

12 In any event, the witness is due to be cross-examined this afternoon and I

13 don't know whether that's going to extend into tomorrow, but I felt it

14 probably my duty to make sure the accused knew what the position -- the

15 rather unusual position was.

16 JUDGE ROBINSON: Yes.

17 MR. NICE: I shall also be dealing with this witness when we come

18 to look at the exhibit position at the end of this witness. So may I

19 suggest we deal with things sequentially but the accused is now in

20 possession of the knowledge I thought he ought to have.

21 JUDGE ROBINSON: Well, Mr. Milosevic, take charge of the matter.

22 Consult with the liaison officer and make your decision. Inform us as

23 soon as possible, and no later than the first break, however.

24 Please continue.

25 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.

1 Re-examined by Mr. Milosevic: [Continued]

2 Q. [Interpretation] Mrs. Marinkovic, yesterday Mr. Nice questioned

3 you about your husband's participation in the protests that had to do with

4 the position of the Serbs.

5 THE INTERPRETER: Microphone, please.

6 MR. MILOSEVIC: [Interpretation]

7 Q. He said literally that it was quite clear that you took part in

8 activities aimed at supporting my policy against the non-Serbs. That was

9 the definition used by Mr. Nice. Do you know about this? Throughout that

10 time in Serbia, was there any policy against non-Serbs?

11 A. No.

12 Q. Mrs. Marinkovic, since you're a Macedonian, you're not a Serb

13 yourself, tell me, you personally, since you're a Macedonian and since you

14 have lived and continue to live until the present day in Serbia, have you

15 ever had the least bit of a problem due to the fact that you're a

16 Macedonian rather than a Serb?

17 A. No, never. I never had any problems.

18 Q. Throughout this time of crisis and wars in the former Yugoslavia

19 from 1991 all the way up to the Dayton agreement in 1995, are you aware of

20 any persecution of Muslims, Croats, or some other national minority in

21 Serbia in any way?

22 A. No.

23 Q. Mr. Nice said that the protesters from Kosovo went to Vojvodina to

24 bring down the Vojvodina government, as he put it. Do you know why the

25 protesters from Kosovo went to different towns throughout Yugoslavia

1 during those years, that is to say the years we're talking about, that is;

2 1988, 1989? Or, rather, I think that most of these activities took place

3 in 1988. Why did they go?

4 A. Since I lived in Pristina at the time, that is to say in Kosovo

5 and Metohija, at that time the Serbs organised these protests so that the

6 rest in Serbia, Vojvodina included, could see how poor their status was in

7 Kosovo and Metohija, that they could not live because of the violence that

8 was launched at that time by the Albanian separatists against the Serbs

9 and other non-Albanians in Kosovo. At that time they were second-rate

10 citizens. They had no rights. They could not take part in government.

11 They could not get employment. They could not present their status and

12 the fact that they were oppressed there. At that time, all of us who

13 lived there had the feeling that we were living in Albania rather than in

14 Serbia. Very little was known about that in other towns. That is why the

15 Serbs raised their voice, because they could not take the separatists'

16 terror any longer.

17 Pressure was brought to bear against the Serbs in different ways,

18 and a great many Serbs moved out at the time. They left Kosovo and

19 Metohija in order to protect their families, especially their children. I

20 can say as a parent, as a mother - at that time I had two children - that

21 I and the other Serbs who lived in Kosovo and Metohija had to take our own

22 children to school and to meet them in front of school after their lessons

23 because Albanian children would attack our children and bully them.

24 Albanian separatists were bringing pressure to bear and exercising

25 violence against us, and that is why the Serbs wanted to tell the mother

1 country Serbia what was going on so that the state, Serbia, could take

2 measures to protect them against Albanian separatists. I'm telling you

3 this as a citizen who lived in Kosovo and Metohija and who felt that

4 throughout my stay there.

5 Q. Thank you, Mrs. Marinkovic. Apart from these reasons, that is to

6 say seeking to have their own rights exercised and drawing the attention

7 of the Yugoslav public to their bad position, were there any other reasons

8 why Serbs went to towns throughout Yugoslavia and held these rallies?

9 A. There was no other reason. Everybody knows, whoever is listening

10 to this now, Albanians and Serbs, that I'm telling the truth.

11 Q. Thank you, Mrs. Marinkovic. We're not going to dwell on this

12 subject much longer because we have to save time. Now I would like to put

13 some questions to you in relation to what Mr. Nice asserted; namely, that

14 there were tortures in prison. So briefly, the subject would be torture

15 in prisons in order to obtain statements under duress from some prisoners.

16 Was there any torture in prisons?

17 A. There was no torture in prisons because that is prohibited by law,

18 and it is not allowed.

19 Q. I'm not asking about what the law says and whether the law bans

20 that. There is no doubt about that. I'm asking you the following: In

21 spite of the fact that this is prohibited by law, was there any torture in

22 prisons that you're aware of?

23 A. No.

24 Q. Mr. Nice said here that it was the police that tortured prisoners.

25 Please explain this to us: When a prisoner is in prison or if a person is

1 remanded in custody as a detainee, does the said person have any contact

2 with the police?

3 A. No. A suspect, after having been heard by the investigating judge

4 and after having been detained if there are legal grounds for detention,

5 the police has no further contact or any jurisdiction with regard to the

6 said person. The said person then falls under the jurisdiction of the

7 district prison, which has its own rules and its own Code of Conduct.

8 As regards everything that has to do with the status of detainees,

9 that falls under the prison officials where the said detainee is.

10 Q. What about the employees in the prison, the prison guards and

11 other persons employed there at the correction facilities? Are they

12 employed by the police or the Ministry of Justice?

13 A. They are employees of the Ministry of Justice because district

14 courts fall under the Ministry of Justice.

15 Q. So the staff working in prison, including guards in uniform, are

16 not members of the police force. They are, rather, employees of the

17 Ministry of Justice; is that right?

18 A. Yes, that's right.

19 Q. I'm going back to my original question: Can they have any contact

20 with the police in prison?

21 A. No.

22 Q. Have you ever heard of any incident when a prison guard

23 interrogated a prisoner?

24 A. No.

25 Q. Mrs. Marinkovic, in your documentation, in your capacity as an

1 investigating judge, you dealt with statements given by detainees; isn't

2 that right?

3 A. Yes.

4 Q. Tell me, since you explained that, when statements are taken from

5 detainees, in addition to yourself, the Prosecutor is present, the Defence

6 attorney for the suspect, an interpreter, and I assume a clerk taking

7 notes. Was this the usual practice in every case when such statements

8 were taken?

9 A. Yes.

10 JUDGE BONOMY: Maybe I've misunderstood, but the statements were

11 put to you yesterday. Were they all taken in your presence?

12 THE WITNESS: [Interpretation] No. No.

13 JUDGE BONOMY: Well, it has been put to you that you're always

14 present when statements are taken.

15 THE WITNESS: [Interpretation] But the statements that were put to

16 me yesterday were not statements made by suspects or accused persons.

17 These were citizens who were giving statements at the SUP, whereas I take

18 statements from suspects and accused persons.

19 MR. MILOSEVIC: [Interpretation]

20 Q. Judge Marinkovic, tell me now, these statements made before you in

21 your capacity as investigating judge and in the presence of the Defence

22 attorney, the Prosecutor, and the other officials involved, are they

23 correctly taken in all your records of investigation? Are these

24 statements only the ones that you took in the presence of all these

25 persons, or was anything ever added to these statements? For example, it

1 was said here that some statement was given under duress. So since this

2 could not have taken place in the presence of all these five people, could

3 anything be added to what was said to you in the presence of all these

4 five officials?

5 A. I entered in the record, in the notes, only what the person who

6 was making the statement said. When the person would present his defence,

7 I would dictate that to the note-taking clerk, and that is exactly what

8 the note-taking clerk would type out. Then the record would be read back

9 to the suspect, and I'd always ask whether the said person agrees with

10 everything that became part of the record, and that is what it means when

11 it says that the said person takes the statement and accepts it as his

12 own, and the person has to sign every page of the statement. Also, the

13 interpreter who was present has to sign every page, I have to as well, and

14 also the recording clerk.

15 Q. Mr. Nice gave a few statements here or, rather, records of

16 examinations of detainees. In all cases except for one, what was

17 established was light bodily injuries. I don't have to actually count

18 them now. Five, six reports by the commission, the medical commission.

19 In one case, the medical commission established that no injuries were

20 found. So we're going to leave that particular record aside. So in a few

21 cases, light bodily injuries were found.

22 As an experienced investigating judge, can you say what can be the

23 cause of light bodily injury in the case of detainees, injuries

24 established by a medical commission?

25 A. Well, you know what? That could mean that the person fell in the

1 prison premises, and it's -- it's a mere fall that can cause such injury.

2 I'm saying this from my practice, from my experience.

3 In relation to that, I gave instructions for the doctors to

4 describe the injuries involved and to say how grave they are.

5 Q. Mrs. Marinkovic, when you would get a request or if you would be

6 warned that a detainee had been injured, did you ever not give orders to a

7 doctor to examine him?

8 A. As far as I can remember - it's been a long time now - I always

9 acted on these written requests, and I always sent instructions to the

10 prison administration for the said person to be examined by a doctor.

11 JUDGE KWON: Just a second. Excuse me. Judge Marinkovic, I

12 couldn't follow that part of your evidence. How were you able to conclude

13 that -- you don't like the word "conclude." How could you find out that

14 those prisoners just fell in the premises of the prison?

15 THE WITNESS: [Interpretation] Well, I would just assume that

16 that's how light bodily injury occurred in view of my years of experience

17 in these cases. That is usually how light bodily injury could take place.

18 It's just an assumption, but I cannot establish it for a fact.

19 MR. MILOSEVIC: [Interpretation]

20 THE ACCUSED: [Interpretation] Very well. May I continue,

21 Mr. Kwon?

22 JUDGE KWON: Yes.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Were there any cases of the prisoners coming to blows amongst

25 themselves in prison?

1 A. Well, things like that did happen.

2 Q. And what could have been the reasons for light bodily injury, for

3 example?

4 A. Well, what you just asked. They might have had a fight amongst

5 themselves and then hit each other with their fists, and then this would

6 result in that kind of injury during a brawl.

7 JUDGE BONOMY: The ones we heard about yesterday were all,

8 according to the doctors' reports, inflicted by a heavy blow from a blunt

9 heavy mechanical implement. We were talking yesterday about clearly

10 described injuries. They're called minor, I assume, because there were no

11 broken bones involved, and there was no suggestion that these were caused

12 by fights or accidents or anything of that nature. So why don't we deal

13 with actuality and deal with the questions that were actually asked

14 yesterday rather than speculation and -- about matters that were never

15 addressed in the cross-examination at all.

16 MR. NICE: And Your Honour will also remember that yesterday I

17 raised with the witness the question of whether she had a particular

18 matter in mind, whether she had delayed examination until the injuries

19 faded was the other way the matter was put.

20 JUDGE ROBINSON: Yes, Mr. Milosevic.

21 MR. MILOSEVIC: [Interpretation]

22 Q. Would you please answer the question put by Mr. Nice. He asked

23 you yesterday - I don't remember your answer - but did you delay the

24 investigation or examination until the injuries had faded or anything like

25 that?

1 A. No. That's not true. That's not correct. It's just the

2 administration that takes awhile, all the paperwork through the court, the

3 prison, to make an appointment for a medical examination at the institute

4 when they have a free space. Otherwise, there was no reason for it to be

5 deployed or prolonged.

6 JUDGE ROBINSON: How much time would elapse usually,

7 Mrs. Marinkovic?

8 THE WITNESS: [Interpretation] Well, I can't tell you exactly but

9 roughly -- well, it depended from one case to the next, depending on the

10 workload. Because when you send in a request to the prison authorities it

11 is up to them to organise it, because from a prison to hospital it's quite

12 a distance. I don't know how many kilometres. So you have to organise

13 the transport, you have to find the guards to escort the detainee and take

14 him to hospital, and then you have to make an appointment at the hospital

15 itself in advance to have a free slot. And once you have made an

16 appointment, then the detainee is taken there. It might be a week, ten

17 days, 15 days, depending on the organisation and the facilities in those

18 two institutions. It doesn't depend on me. But as I say, there were no

19 urgent cases which required emergency measures where life or limb was at

20 risk.

21 JUDGE ROBINSON: Mr. Nice.

22 MR. NICE: Your Honours, one point again. The Court has yet to

23 decide about the admissibility of the medical certificates, but it has

24 both the requests which are dated and the report of the examination, which

25 are dated, and the Court may notice a coincidence with dates; namely, the

1 requests and the examinations are actually on the same day.

2 JUDGE ROBINSON: Yes. Thank you.

3 Mr. Milosevic.

4 THE ACCUSED: [Interpretation] I can just thank Mr. Nice. If this

5 was done on the same day, then when the Defence counsel tabled a request,

6 the examination was carried out straight away so there can be no question

7 of delay or postponement.

8 THE WITNESS: [Interpretation] I didn't see the dates yesterday. I

9 didn't pay attention to that. I don't know whether there was the date or

10 whether I was told in the Serbian version.

11 MR. MILOSEVIC: [Interpretation]

12 Q. Very well, Mrs. Marinkovic. Now, tell me, as an experienced

13 investigating judge yourself, as all these cases were classified as light

14 bodily injuries, for anybody suffering light bodily injuries can we say

15 that they were beaten up at all?

16 JUDGE ROBINSON: Mr. Milosevic, I don't see how the witness can

17 answer that properly.

18 THE ACCUSED: [Interpretation] Well, I assumed that in practice, in

19 the practice of an investigating judge, they would be able to assess

20 whether somebody had been beaten or not on the basis of what we've been

21 saying here.

22 JUDGE BONOMY: Mrs. Marinkovic has constantly told us it is not

23 her job to draw that sort of conclusion.

24 THE ACCUSED: [Interpretation] Very well. Let's move on to the

25 next question, then.

1 MR. MILOSEVIC: [Interpretation]

2 Q. Mrs. Marinkovic, yesterday --

3 JUDGE KWON: Just a second, Mr. Milosevic. I have further points

4 to clarify once again. Could you wait, give me a minute.

5 Mr. Nice, you said that the request of the -- the request and the

6 report of the examination are dated on the same day?

7 MR. NICE: Yes.

8 JUDGE KWON: I think the medical report was done in December 1994,

9 and the further complaint -- ah, yes. Complaint was made at a later

10 stage.

11 MR. NICE: Complaints made later. The chronology is, as the

12 Prosecution would advance it, to take the particular example, but any of

13 them, number one, Aliu Isak, a complaint by a lawyer made a month before,

14 application for examination made on the 22nd of December, examination

15 conducted on the 22nd of December, complaint by lawyer to judge of

16 non-compliance with his request and complaints comes later in 1995.

17 JUDGE KWON: The point I'd like to clarify is that whether there

18 is a further examination according to the -- this complaint, is this

19 witness's position that she's not in the position to answer that question

20 because she has not the records in its entirety or not?

21 MR. NICE: That I'm not sure. I think she'll have to answer that.

22 JUDGE KWON: Mrs. Marinkovic, can you answer that question,

23 whether there is a further examination according to the complaint filed to

24 you and various institutions saying that his client was beaten up again in

25 February 1995?

1 THE WITNESS: [Interpretation] Well, it was like this: I can't

2 really say now because I don't have the complete files with me. If I had

3 the case files in front of me, I'd be able to see, because it's all there,

4 all the papers, all the documents. For each of my actions note was taken

5 and there is a written trace of what was done.

6 JUDGE KWON: Thank you. Proceed, Mr. Milosevic.

7 THE ACCUSED: [Interpretation] Thank you, Mr. Kwon.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Ms. Marinkovic, yesterday Mr. Nice asked you something about an

10 investigation you conducted about the formation of an illegal MUP in

11 Kosovo and Metohija. Do you remember that? Do you remember those

12 questions?

13 A. Yes.

14 Q. Did you conduct the investigation with respect to the organisation

15 of this illegal MUP or the illegal police of the Albanian separatists in

16 Kosovo and Metohija?

17 A. Yes.

18 Q. Mrs. Marinkovic, are you waiting for the interpretation to appear

19 on the transcript? I can see that we have a pause between question and

20 answer.

21 A. Well, yes. I'm bearing in mind the interpreters. They have asked

22 me to speak more slowly so I'm looking at the monitor and once the

23 translation finishes there, then I give you an answer.

24 Q. Ah, I see. I thought that was it. That's the transcript. The

25 interpretation is quicker, so you don't have to make that long a pause, to

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1 save time.

2 The case was against how many suspects?

3 A. Eighty-nine individuals in the pre-trial investigation phase, and

4 that was the requirement made by the Prosecutor.

5 Q. And the indictment was raised against how many individuals?

6 A. The indictment was against 72 persons. May I just take a look and

7 make sure? Yes. The indictment was against 72 individuals.

8 Q. And how many of those were found guilty at the end of the trial

9 and the proceedings?

10 A. Sixty-nine were found guilty, having committed crimes specified in

11 the indictment.

12 Q. Tell us, please, in those activities, the activities they were

13 charged with and found guilty of, and they not only represent the criminal

14 act of association, as was suggested, but it was also procurement of

15 weapons, included procurement of weapons and certain other actions that

16 were dangerous to individuals and society as a whole.

17 A. In the course of the investigation, on the basis of the statements

18 of persons interviewed and on the basis of the proof and evidence that I

19 amassed during the investigative phase, we were able to see that not only

20 did they work to prepare this illegal MUP, but they also worked on the

21 procurement of weapons illegally, and in order to do so they visited areas

22 in the area of Macedonia, towards Macedonia, because they were not able to

23 procure weapons and import weapons from Albania illegally.

24 THE INTERPRETER: They were. Interpreter's correction: They were

25 able to import weapons illegally from Albania.

1 Could the accused repeat his question, please.

2 THE WITNESS: [Interpretation] Everything they did to prepare and

3 form the illegal MUP, they represented this and wanted it to appear as if

4 it was a sort of trade union work.

5 MR. MILOSEVIC: [Interpretation]

6 Q. Well, that's what Mrs. Kandic says in some of her articles. And

7 what was established during the investigation? Was it trade union

8 activity or was it some other form of activity?

9 A. During the investigation that I conducted, we established that

10 they had in fact been working illegally to set up hostile -- a hostile

11 association. Prior to previous instructions from the government in exile

12 and at the initiative of that government, they were working to form and

13 establish centres of public and state securities in seven towns all over

14 Kosovo and Metohija. They had established their network of associates

15 which worked to collect information about monitoring the police and army

16 of Yugoslavia and monitoring individual inspectors as well and their work.

17 They also monitored Albanians whom they considered to be collaborators of

18 the police and collected information, and that information was coded and

19 sent to the government of Kosovo, Kosovo Republic. The information was

20 collected and amassed by being introduced into computers under codes.

21 They were encrypted and then they would send them on both to the

22 government and the President Rugova, their President Rugova, and also to

23 their Assembly. These were all illegal organs parallelly formed and

24 parallel to state institutions that existed at that time.

25 Q. Mrs. Marinkovic, you said that Albanians were monitored as well

1 and surveillance organised of Albanians as well whom they suspected as

2 being collaborators and collaborating with state organs. Now, these

3 individuals whom you say they treated as being collaborators of Serbia and

4 Yugoslavia and who were under surveillance by this illegal MUP, were they

5 -- did they run any danger? Were they open to danger?

6 A. Yes, they were. By working on the investigation, the information

7 that was gathered with respect to surveillance of these individuals, by

8 force of chance once again I myself as an investigating judge went on site

9 to look into a case of two Albanians whom they considered to be

10 collaborators of the Serb police force, and they were killed. Those two

11 persons were killed. One was a porter who worked in the municipality

12 building or the municipality building in Glogovac and a postman working in

13 the post office in Glogovac. Those were the two people in question.

14 One man's name was Ymer Lako, and the postman was Mustafa Kurtaj.

15 With respect to those two individuals, I went to conduct an on-site

16 investigation and there is a record of that. Ymer Lako was killed in

17 1998 --

18 MR. NICE: [Previous translation continues] ... once again, and I

19 have to observe that although the Court will remember we were faced with

20 whatever it was, just under 40 files, I explained I'd look at parts of one

21 of them, and I looked at it for the purposes essentially dealing with the

22 treatment of the prisoners by -- or the accused -- hands of this witness.

23 I went into the detail hardly at all.

24 If the Court wants to hear the details from this witness, so be

25 it. I will have to deal with the material, or I may choose to deal with

1 the material with another witness but I certainly haven't gone into the

2 substance of the police trial in any detail at all.

3 JUDGE ROBINSON: Yes. I agree with both points made by Mr. Nice,

4 Mr. Milosevic.

5 Mrs. Marinkovic, if you're going to read from a document, then

6 that should be brought to the attention of the Court so we can know what

7 it is and make our own determination as to whether it's appropriate for

8 you to read from it.

9 Mr. Milosevic, I think you are going a little wide of the mark

10 here, and you are in fact raising matters that did not arise in

11 cross-examination. As Mr. Nice said, he cross-examined this witness as to

12 her role in the treatment of prisoners that were subjected to her care,

13 and I believe this is -- this is wide of the mark. So move on to another

14 topic.

15 In any event, I think you are spending too long on the

16 re-examination.

17 THE ACCUSED: [Interpretation] Mr. Robinson --

18 MR. MILOSEVIC: [Interpretation]

19 Q. Mrs. Marinkovic, what are you reading from? Tell us first of all.

20 A. I'm reading from tab 1 that has been distributed to everyone.

21 That is my short overview of the cases in which I was investigative judge.

22 JUDGE ROBINSON: Yes. Just let us know before. If you're going

23 to read from a document, let us know what you're reading from.

24 MR. NICE: And we have the translation of this this morning, so

25 I'm afraid it hasn't been possible for me to review it in any event.

1 JUDGE BONOMY: Well, we don't have the translation at all.

2 JUDGE ROBINSON: Tab 1.

3 THE ACCUSED: [Interpretation] Mr. Robinson, I wish to draw your

4 attention to one thing. The questions I'm putting now to Judge Marinkovic

5 do not relate to the treatment of prisoners. That issue was dealt with

6 before. These questions deal with the claim of Mr. Nice that the regime

7 prosecuted trade unions, in support of which he provided the text by

8 Natasa Kandic. This illegal MUP was represented as the trade union of

9 Albanians, of Albanian policemen, and the result of that was the death and

10 killing of some Albanians.

11 The information gathered concerned persons who allegedly

12 collaborated with Serbia, and these people were later killed. So this was

13 obviously not a trade organisation, as Mr. Nice tried to present it.

14 JUDGE ROBINSON: Well, you have dealt with it sufficiently.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Would you tell me now, Mrs. Marinkovic, so this was an illegal

17 Ministry of the Interior, established by Kosovo separatists. Did you know

18 that a parallel schooling system, a parallel health care system were

19 established, and other parallel institutions, including political ones?

20 Do you know that?

21 A. Yes.

22 Q. The organisation of parallel schooling, health care, and any other

23 - how shall I put it? - non-aggressive activities, were they ever

24 prosecuted by the police or the judiciary?

25 A. No.

1 JUDGE ROBINSON: I'm not allowing any more questions along those

2 lines. Move on to another topic.

3 THE ACCUSED: [Interpretation] Very well.

4 MR. MILOSEVIC: [Interpretation]

5 Q. Mrs. Marinkovic, among the things Mr. Nice presented yesterday,

6 there was a document that is the letter to the Serbian public sent by a

7 great number of people including nine bulleted points expressing certain

8 demands. It starts with, "Dear Sirs."

9 THE ACCUSED: [Interpretation] I wish to draw your attention,

10 gentlemen, to this translation into English which is provided along with

11 the Serbian text. It is not actually a translation of that text.

12 MR. NICE: Your Honour, I made clear yesterday -- I made it clear

13 that it was not a translation of the text in the newspaper article in

14 which the petition was, I think, photographed, but was a text from another

15 newspaper and it contained just the relevant nine points.

16 I also made it plain at that stage that because the witness at

17 that stage was really denying any knowledge of the petition, that I wasn't

18 going to press ahead with questioning her about it. It happened that

19 later, despite her earlier answers, she seemed to have rather full recall

20 of it. And if the accused wishes to bring the petition in, so be it, but

21 my intention was, in light of her not remembering the petition, to deal

22 with it with a later witness. So the accused may be wasting time unless

23 he wishes that the petition should now be dealt with by her, in which case

24 I'm happy for the document to serve the purpose, and the only purpose I

25 would rely on was the format of the petition and the nine points for which

1 there is a translation in English but from a different newspaper.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Mr. Milosevic, what exactly is the point you wish

4 to raise? Mr. Nice didn't rely on the document, so it's difficult to see

5 how anything could arise from it. You would have to persuade us that the

6 question that you wish to raise arises in some way.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: Mr. Nice, you weren't seeking to have this

9 document admitted?

10 MR. NICE: I wasn't. I was going to mention today when we come to

11 exhibits that, as far as I was concerned, at the time I'd withdrawn it.

12 Although I was going to observe, as I already have, that the witness

13 seemed to have acknowledged it's rather better later, but so what?

14 JUDGE ROBINSON: Mr. Milosevic, move on to another question.

15 THE ACCUSED: [Interpretation] I have to draw your attention to the

16 fact that this exhibit as presented with the English and Serbian texts,

17 the English and Serbian are actually quite different.

18 May I continue, Mr. Robinson?

19 JUDGE ROBINSON: I didn't understand the point you just made. Is

20 this a different document? I see. Okay. Proceed.

21 THE ACCUSED: [Interpretation] The English text is a translation of

22 some article from the Borba newspaper, whereas the Serbian text is an open

23 letter published in the Nin magazine. Those are two different things.

24 JUDGE KWON: Proceed, Mr. Milosevic.

25 THE ACCUSED: [Interpretation] I am not going to deal with this

1 anyway, because Mr. Nice is not tendering it.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Mrs. Marinkovic, just a few things in relation to these statements

4 we received yesterday, statements that were taken from a number of persons

5 who had previously given statements to authorised officers at the time of

6 the incident in Racak. I'm not certain that I will go in the same order

7 as yesterday, but I would like to go through them briefly.

8 Mr. Nice provided the statement of Emini Shemsi, which is

9 understand 47, and this Emini Shemsi said that he had been beaten by

10 baseball bats. Do you remember that?

11 A. You mean the recording, the video that I saw yesterday?

12 Q. Yes. That's what he said. Several video clips were seen

13 yesterday, and this person said on the screen that he had been beaten by

14 baseball bats.

15 A. Yes, I remember.

16 Q. Mrs. Marinkovic, in Kosovo and Metohija, have you ever heard of

17 anyone playing baseball and have you ever seen a baseball bat in the

18 entire Kosovo and Metohija?

19 A. No. I have no idea about this game, and I have never seen that

20 bat. I don't know what it looks like.

21 JUDGE ROBINSON: The Americans will be disappointed to hear that.

22 THE WITNESS: [Interpretation] Well, I am not interested in sports.

23 As a woman, I have a lot of other things to do. And I have never had

24 occasion to travel to the United States.

25 MR. MILOSEVIC: [Interpretation]

1 Q. Mrs. Marinkovic, another statement we have here is that of Muhadin

2 Dzeljadini, who says that he did not wish to sign his previous statement,

3 but after seeing blood in the basement, he got frightened and signed

4 anyway. Do you remember who took this statement from Dzeljadini? I mean,

5 which SUP took the statement?

6 A. I don't have the statement in front of me, but it was taken by the

7 authorised officers of SUP Urosevac.

8 Q. Have you ever been to SUP Urosevac?

9 A. I have.

10 Q. Well, if you have, were you able to determine whether there are

11 any rooms inside that SUP where detained persons were beaten?

12 A. No. The place where I visited, where I waited for the

13 investigative team to arrive and to accompany me on a on-site

14 investigation, I was not able to see anything of the kind.

15 Q. Mr. Nice said that it was well known that under the regime of that

16 time some prisoners were tortured. Do you know whether after the 5th of

17 October, when I was no longer president, anyone was released from prison

18 apart from Albanian terrorists? Was there anyone to release?

19 A. As far as I know, only Albanians were released.

20 Q. Were Mazreku brothers among those released, the people who -- the

21 bothers who incinerated those people in Klecka?

22 A. Yes, they were.

23 Q. Mrs. Marinkovic, Mr. Nice said that through a combination of

24 circumstance - and I believe this relates to tab 52, I can't remember

25 exactly at this moment -- which was that tab that one of the authorised

1 officers taking the statement was Jasovic, was that 52?

2 A. Yes.

3 Q. We were informed that he was here yesterday.

4 JUDGE BONOMY: My understanding was that he was the interviewing

5 officer in all of them.

6 THE ACCUSED: [Interpretation] So much the better. I can't

7 remember which is which. I'll look at the tabs.

8 THE WITNESS: [Interpretation] I believe it was always two persons

9 together who took the statements.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Yes, but this particular one testified in Limaj case yesterday and

12 we will call him too. Now, tell me this: In this statement, he said that

13 he had not signed the previous statement, that it was not his statement

14 therefore.

15 THE ACCUSED: [Interpretation] Mr. Robinson, I would require a

16 handwriting analysis, because we have handwriting on both statements that

17 can be compared in the statement of Mustafa Afrim, although it must be

18 said that in this last statement given last week he tried to bend it to

19 the left a little to make it look a little different, but I would demand a

20 handwriting analysis to be performed so that we can establish the truth,

21 whether this is really his handwriting on the statement of the 16th of

22 January, 1999, or not. It is pretty obvious to me that it is the same

23 signature.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: If you wish to call a handwriting expert,

1 Mr. Milosevic, that's a matter for you.

2 THE ACCUSED: [Interpretation] Very well. Then I will set it

3 aside.

4 JUDGE BONOMY: Mr. Nice, you indicated yesterday that it was

5 likely that that would be done anyway.

6 MR. NICE: It's a course that's obviously open to us to deal with.

7 JUDGE BONOMY: It would be helpful if a person could be identified

8 to do it. The accused could be consulted about that person and just one

9 analysis was done and we were all agreed to proceed on that basis.

10 MR. NICE: If we reach that position, but I'm going to ask for

11 discussion about exhibits generally in any event first.

12 JUDGE ROBINSON: We're not experts in handwriting, but we can look

13 at the handwriting ourselves. That happens frequently in some

14 jurisdictions.

15 Proceed, Mr. Milosevic.

16 MR. MILOSEVIC: [Interpretation]

17 Q. Now I would like to ask you this, Mrs. Marinkovic, because he

18 claims now that somebody signed the statement for him. Look what he says

19 in the statement. "Since I live in Racak village --" Do you have this

20 statement in front of you now?

21 A. No, I don't.

22 THE ACCUSED: [Interpretation] Could I please ask the usher to

23 provide this statement to the witness. It's tab 52.

24 JUDGE ROBINSON: Let tab 52 be provided to the witness.

25 JUDGE KWON: Are you referring to tab 52 or the statement taken by

1 the Prosecution?

2 THE ACCUSED: [Interpretation] Both, actually. The Prosecution,

3 though, has only statements in English. I have this statement in English

4 as well, but it makes no sense to give it to Mrs. Marinkovic because she

5 doesn't understand English.

6 MR. MILOSEVIC: [Interpretation]

7 Q. So, Mrs. Marinkovic, please look at this. I will only quote from

8 point 3 of this statement, which was taken by one of Mr. Nice's

9 investigators or employees on the 3rd of April.

10 In point 3 it says that he started to scream and yell at him,

11 saying that he was a member of the KLA. In this statement which he signed

12 and now is trying to disown that signature, does it say anywhere in that

13 statement that he was a member of the KLA?

14 A. No, no. And I noticed that straight away yesterday.

15 Q. And now please look at this statement, because it is rather

16 specific. It is not broad or general, nor does it refer to general

17 issues. He says: "Since I live in Racak village, I know and I saw with

18 my own eyes that the substaff of the KLA in Racak village is located in

19 the house of Mustafa Suceri Sefa. The commander is Afet Bilalli, Musliu

20 Shefqet is his deputy."

21 It's the very beginning of the statement. There are no paragraphs

22 here, actually.

23 JUDGE ROBINSON: Mr. Milosevic, what is the question that you wish

24 to put?

25 MR. MILOSEVIC: [Interpretation]

1 Q. So the question is: Since quite a number of specific facts are

2 cited here, can we surmise that the authorised officers who took the

3 statement from him just dreamt up these things and made him sign?

4 JUDGE ROBINSON: Mr. Milosevic, that's not a proper question at

5 all, and you well know it.

6 THE ACCUSED: [Interpretation] All right.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Mrs. Marinkovic, the facts collected in relation to the situation

9 in Racak in general, do they coincide with these assertions as to who the

10 commander of the substaff was, who these different persons were, I mean

11 all the information obtained through them?

12 A. The facts that this citizen Mustafa Afrim presented in his

13 statement do coincide with the other statements that were taken in

14 relation to what happened in Racak, and we found quite a bit of material

15 evidence on the ground as well.

16 Q. If we look at the tabs pertaining to the statements of these

17 witnesses who now say that they gave them out of fear and one person says

18 that he didn't even sign the statement because it's not his signature, is

19 it obvious that these statements largely overlap and in terms of other

20 matters they do not overlap depending on --

21 JUDGE ROBINSON: No. That's -- that's a comment, it's a leading

22 question.

23 MR. MILOSEVIC: [Interpretation]

24 Q. All right. Mrs. Marinkovic, in the second paragraph of his

25 statement, it says that "Members of the KLA in the village of Racak have

1 checkpoints in the following places: In front of the bridge in Racak,

2 next to the asphalt road on the right-hand side of the former shop of

3 Mustafa Metus, at a place called Cesta, on the hill above the old people's

4 home..." and so on and so forth.

5 Is that what was indeed established there?

6 A. Yes. Yes. Many citizens who were interviewed confirmed this

7 fact, and we actually saw it on the ground because the old people's home

8 had been targeted by the terrorists, and there were visible traces from

9 projectiles on that building.

10 Q. All right. In his statement, he says that he was told that he was

11 a member of the KLA. In this statement of his in 1999 it does not say

12 that he was a member of the KLA. He mentions that they forced him to

13 touch some wires.

14 Mrs. Marinkovic, since you're an investigating judge, if we're

15 talking about electric shock -- how should I put this? When a burn is

16 sustained during electric shocks, I mean, do these burns remain or,

17 rather, the scars, do they remain permanent?

18 MR. NICE: The witness has no experience of torture or people

19 being tortured so I'm not sure how she can possibly answer a question

20 about the effect of electric shocks.

21 JUDGE ROBINSON: Yes, I agree.

22 Mr. Milosevic, that's time wasting.

23 THE WITNESS: [Interpretation] Well, not electric shocks, but as an

24 ordinary citizen, I can say on the basis of my own experience, too, if you

25 burn your skin, I mean, there's always a scar, and I've experienced that

1 myself in everyday life.

2 JUDGE ROBINSON: Mr. Milosevic, you might as well ask me the

3 question.

4 MR. MILOSEVIC: [Interpretation]

5 Q. All right, Mrs. Marinkovic. Do you know whether any police

6 authorities used any devices for torturing prisoners? Specifically I'm

7 asking you about electric shocks, to use the expression used by Mr. Nice.

8 A. I'm not aware of any such thing.

9 Q. Did you ever receive any complaints from any defence attorneys of

10 any accused person that some kind of electric shocks were applied in the

11 case of his client?

12 A. No.

13 Q. This is a document that was compiled in Urosevac. This is more

14 than two months prior to the outbreak of the war. This person says, at

15 the end of the third paragraph in his statement, that one of the persons

16 who was working on a computer and finally one of them said, "Let him go,

17 he's a child."

18 So, Mrs. Marinkovic, they said let him go, he's a child. Since

19 we're talking about a town where there's normal life, I mean it's not some

20 remote backwater, had he truly been exposed to some kind of electric

21 shocks, could he have addressed the judiciary organs, the government, the

22 president of the municipality, anybody?

23 JUDGE ROBINSON: Mr. Milosevic, if you continue in this vein, we

24 are going to terminate the re-examination. The witness can't help you

25 very much on this statement.

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1 THE ACCUSED: [Interpretation] All right.

2 JUDGE ROBINSON: If you wish to refute it, there are other means

3 open to you to do that.

4 THE ACCUSED: [Interpretation] I'm not refuting it. It's Mr. Nice

5 who is refuting it, in his own assertions and through his exhibits.

6 MR. MILOSEVIC: [Interpretation]

7 Q. Mr. Nice asked you yesterday, Mrs. Marinkovic, in relation to

8 Racak whether you interviewed the inhabitants of the village of Racak when

9 you came there. Do you remember the question?

10 A. Yes.

11 Q. In the village of Racak when you came there, when you finally

12 managed on the 18th, as you explained to us, to get in. You made several

13 attempts. First you tried to get in on the 15th and then the next day

14 they wouldn't let you get near when Walker was there and then you had to

15 withdraw again and then ultimately you managed to get in on 18th. Were

16 there any citizens there who you could have put questions to?

17 A. No. The village was abandoned.

18 Q. So in addition to -- except for those 40 corpses you found in the

19 mosque, there was not a living soul in the village; is that your

20 assertion?

21 A. Yes.

22 Q. You then toured the environs of Racak.

23 A. Yes.

24 Q. And you wrote about trenches, casings, bunkers, and so on and so

25 forth. Were there any other corpses except for those that you found in

1 the mosque?

2 A. No.

3 Q. The representatives of the OSCE were with you; isn't that right?

4 A. Yes.

5 Q. Did anybody mention that there were some other bodies there too?

6 A. No. In relation to this, I can say that after that, when the

7 corpses were supposed to be handed over to the families, I had several

8 conversations and contacts with the local villagers and the

9 representatives of the mosques both in Racak and in Stimlje, with the

10 representatives of the verification mission who were in charge of Stimlje

11 and Urosevac. We met and we discussed the hand-over of the bodies.

12 On all those days, whenever I went to Stimlje, none of the

13 citizens who were in contact with me mentioned anything new, saying that

14 they were eyewitnesses or that they had anything to add. They had the

15 opportunity of doing so because we talked to them at length, and then

16 after that the members of the families came to Pristina to get the bodies.

17 So they had ample opportunity. If they had something new to offer, they

18 had several occasions to talk to me and also to address higher instances

19 than myself; the OSCE, the representatives of the mosques, and people from

20 Stimlje.

21 I have notes about all these contacts I had with them for days and

22 all the names of the persons I contacted are listed there.

23 JUDGE ROBINSON: Just a moment. Just to go back to the question

24 Mr. Milosevic asked you as to whether there were any persons in the

25 village when you went there on the 19th to whom you could put questions,

1 you said there were no persons there to whom you could put questions.

2 THE WITNESS: [Interpretation] On the 18th.

3 JUDGE ROBINSON: On the 18th. But as I understand your testimony,

4 even if there were persons, your testimony is that, according to your

5 procedures, you would not have been able, you would not have had the

6 capacity to put questions to those persons; is that right?

7 THE WITNESS: [Interpretation] Yes. But I could only record their

8 names and then give them to the prosecutor.

9 JUDGE ROBINSON: Yes, Mr. Milosevic.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Mrs. Marinkovic, during your examination-in-chief, you indicated

12 that the names did not match the persons who were killed in Racak, that

13 is, and the persons whose names are listed on Mr. Nice's lists. Mr. Nice

14 asked you about this yesterday and his suggestion was that Albanians often

15 change their names. Can this fact that the names do not match be due to

16 changes of names among Albanians or is it simply a mismatch?

17 A. The names on the list in the indictment and on my list do not

18 match.

19 Q. All right. Now I'm going to ask you something very briefly in

20 relation to Mr. Nice's questions that had to do with the prison in

21 Dubrava. So you had official contacts with what was in your territory.

22 Isn't that right, Mrs. Marinkovic?

23 A. Yes.

24 Q. When persons from the Dubrava prison were transferred to your

25 territory through the municipality of Lipljan, which is under the district

1 court in Pristina, you then went to carry out an on-site investigation.

2 We showed all of that through the exhibits. Do you know how many

3 prisoners and detainees were transferred from Dubrava prison to Lipljan or

4 to some other prisons?

5 A. I don't know the exact figure, but I know that a great many were

6 transferred, those who were injured and those were not injured. That is

7 to say that all the detainees from Istok were transferred to Lipljan,

8 because Dubrava, the prison of Dubrava was completely destroyed and it was

9 not possible to stay there any longer.

10 Q. All right. When you say "a great many," what do you mean by "a

11 great many"? What is the order of magnitude? I can understand that you

12 cannot give us the exact figure now, but what is the order of magnitude?

13 What is a great many: 100, 200, 500? How many prisoners, approximately?

14 A. Well, I cannot give you an exact figure now, but it must be around

15 a hundred. Now, I cannot say whether it's a bit more or a bit less.

16 Q. All right. I hope we will be able to establish that. On page --

17 JUDGE KWON: Mrs. Marinkovic, how many did you interview among

18 them?

19 THE WITNESS: [Interpretation] I did not interview them because on

20 the day when I was there, people were still in shock and stressed out.

21 They were given medical assistance. But we agreed with the prison

22 administration that once these persons recover, a few days later those who

23 were not in prison but those who remained in the Lipljan prison would be

24 interviewed in order to be able to find out what it was that happened in

25 Dubrava.

1 So later on, after that, I received information that a number of

2 detainees were interviewed.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Did you have the opportunity to see the statements of these

5 persons? Mr. Kwon asked you about this just now. You did not interview

6 them, but did you have the statements of these detainees as to what

7 happened?

8 MR. NICE: I restricted my questions for want of time to the mere

9 confirmation that she was dependent on the material of her colleague and I

10 left it there. My recollection is, and we can look at the transcript,

11 there have been several questions asked indeed by the Bench about the

12 circumstances in which the colleague had produced his material, problems

13 about the dates and one thing and another. It seemed to me that that was

14 the appropriate way to leave it, given that I have to make a selection of

15 the topics I'm going to cover. I confirmed with her that she hadn't

16 spoken to the three eyewitnesses that were relied on by -- surviving

17 eyewitnesses relied on by the Prosecution, and I left it at that. It

18 doesn't seem to me very much scope for re-examination.

19 JUDGE KWON: Yes. She confirmed that she's not well aware of the

20 happenings in 22nd and 23rd -- oh, no, 23rd and 24th.

21 Proceed. Ask another question, Mr. Milosevic.

22 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson [as

23 interpreted]. But she explained that she did not interview these persons,

24 but she did say yesterday during her cross-examination that statements had

25 been taken from these prisoners.

1 MR. MILOSEVIC: [Interpretation]

2 Q. So do you know anything about these statements, Mrs. Marinkovic?

3 A. In relation to these statements, I know about them because during

4 the break I had, I checked the court files regarding these statements.

5 Whether they were in the court and whether we had them. I found the

6 statements, I photocopied them, but since I'm not in contact with the

7 Defence, with Mr. Milosevic's advisors, I have those statements and I can

8 offer them to the Trial Chamber in order to clarify the situation and

9 everything that happened in Dubrava. Because the prisoners who were in

10 Istok and who had been wounded and injured wrote these statements in their

11 own hand and explained what happened in the prison of Dubrava; from the

12 beginning of the bombing, how the bombing took place, how NATO planes

13 targeted the area, what it was that was targeted. So if the Trial Chamber

14 believes that it could be of assistance in order to clarify the situation

15 in Dubrava, I can now offer you these documents into evidence if you wish.

16 [Trial Chamber confers]

17 JUDGE KWON: Mr. Nice, you said that the Prosecutor who was in

18 charge of this investigation is in 65 ter witness list of the accused.

19 MR. NICE: Yes. I think I said that. I think we checked that

20 last time. Yes, he is. And I'm just trying to look at yesterday's

21 transcript. If the witness says that she spoke of statements being taken,

22 then I'm not going to challenge that, but I'd like just to check it. But

23 even if she did volunteer it in answer to the very limited questioning

24 that I put of her, that doesn't let those statements in.

25 I haven't seen these statements that she's going to rely upon.

1 They might raise exactly the same sorts of issues or different issues from

2 the kind I've had to raise with the three statements that we were able to

3 deal with over the break. So on two grounds -- or three grounds, I would

4 invite the Chamber not to consider allowing in this material at this

5 stage.

6 And if it does, I might have to ask for leave at some later stage

7 to cross-examine this witness on them if there's no other witness I can

8 deal with.

9 JUDGE ROBINSON: Yes, you would be entitled to.

10 Mr. Kay.

11 MR. KAY: Just calling up the record myself on the LiveNote and

12 I've just found the passage where Mr. Nice, questioning the witness,

13 said: "... to deal with a couple of other things. So far as Dubrava

14 Prison is concerned, you interviewed no survivors other than the ones you

15 say who were injured and moved into the location ... You interviewed no

16 other survivors, did you? No, yes, right. Just let me say, and you

17 didn't wait for me to complete my answer, since a large number of people

18 were injured, I did have the opportunity of -- and that people had been

19 moved, I did have an opportunity of seeing them, however, I wasn't able to

20 talk to them directly because they were under stress..." The witness gave

21 further details. "We agreed with the prison authorities to talk to the

22 people in question so that they --"

23 THE INTERPRETER: The counsel is invited to quote question and

24 answer when quoting from the transcript.

25 MR. KAY: "We agreed with the prison authorities to talk to them,

1 to the people in question, so that they could tell them what had happened

2 while they were in Dubrava in the prison there."

3 And then: "You produced your colleagues' report which we've

4 looked at on the last occasion we were here ..." And it's referred to the

5 fact that he didn't speak to any of the survivors who had given evidence

6 in this court. "I don't know who these people were," the answer is.

7 So it's clear that there were statements that were taken as part

8 of an investigation, and that is what this particular witness is offering

9 the Court at this stage, which arose from Mr. Nice's cross-examination.

10 JUDGE ROBINSON: It could be produced later, through the --

11 MR. KAY: They could be marked for identification now, as we had

12 done in the Prosecution case, if you remember, when documents were

13 produced; marked for identification, and then dealt with by the more

14 appropriate witness.

15 JUDGE ROBINSON: Yes. Yes. I think that's the appropriate

16 course.

17 MR. NICE: Your Honour, may I be heard on that? Actually, the

18 answer that -- I've found it now myself. She was asked specifically if

19 she interviewed no other survivors, and her answer was no. And then she

20 volunteered as much as to say we agree that the prison authorities -- with

21 the prison authorities to talk to the people in question.

22 As a matter of fact, she doesn't go on to say what the process was

23 and the topic changed from there. If she had said something about "and

24 took statements," then I might at that stage have asked for them.

25 I really must press that the time has come to draw a line in this

1 extensive re-examination and to say that this is yet another example of

2 the accused trying to get material in in re-examination that I simply

3 wasn't on notice to deal with and haven't dealt with and, what's more,

4 didn't deal with because I took the specific decision. In order to be

5 economic in the use of time, that this was a topic that I would not

6 trouble with because of the way it had been dealt with in chief, which I

7 simply underline, so that --

8 JUDGE BONOMY: Mr. Nice, the -- if they're marked for

9 identification, no questions are asked except to confirm that these are

10 the statements obtained the way the witness got them. You then have the

11 advantage that you've got them rather than hoping they'll turn up before

12 the witness who comes to speak to them turns up, and you have the

13 additional advantage that they won't get in unless the witness comes and

14 speaks to the way in which they were prepared.

15 MR. NICE: That's true. I accept the practical good sense of that

16 as a proposition which accords in practical effect with what I'm asking

17 then, that the matter not be covered in re-examination, so I'm grateful.

18 JUDGE ROBINSON: We will mark them for identification, and

19 Mr. Milosevic, then you will seek to produce them through the appropriate

20 witness.

21 JUDGE KWON: Give the number.

22 THE ACCUSED: [Interpretation] Mr. Robinson, for the record,

23 Mr. Nice has explained that he didn't know about the statements and then

24 couldn't take them into consideration. I assume that from the statement

25 by the witness that you could have heard that I didn't know about the

1 statements either because the witness found them subsequently. So I don't

2 know what it actually says in those statements. I wanted to ask her to

3 read out the names and to read out what it says in the statements. But if

4 you consider that this should be introduced in some other way, then so be

5 it.

6 JUDGE ROBINSON: Yes, Mr. Milosevic. That's our decision, and

7 we'll take the break now.

8 THE ACCUSED: [Interpretation] Very well. Mr. Robinson, the

9 witness that was mentioned by Mr. Nice a moment ago with respect to tab

10 52, will he be able to appear now or not? Because I don't want to detain

11 this witness any more. I have no more questions for witness

12 Mrs. Marinkovic.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Mr. Milosevic, whether that person comes as a

15 witness doesn't affect Mrs. Marinkovic. If you are finished your

16 re-examination, and you should be, then she can go. Let me finish. And

17 it's not very clear to me that that person would be able to come

18 immediately after Mrs. Marinkovic. You would need to -- to speak to that

19 person, no doubt, if you're going to call that person as a witness. You

20 would have to work through the liaison officer and make the necessary

21 arrangements.

22 So as I said before, we'll give you the 20-minute break to have

23 that discussion, and if you wish to call that person as a witness, then

24 the person will be called at the -- at the earliest opportunity.

25 THE ACCUSED: [Interpretation] Mr. Robinson, I had one more

1 question just briefly, not to keep the witness until after the break. May

2 I ask it now?

3 JUDGE ROBINSON: Yes.

4 MR. MILOSEVIC: [Interpretation]

5 Q. Mrs. Marinkovic, in Schedule 1, page 57 of the indictment, we have

6 the names of persons, as it says, killed in the prison in Dubrava, whose

7 names are well known, and then we have 26 individuals listed there.

8 Do you know how many people lost their lives during the bombing of

9 the Dubrava Prison?

10 MR. NICE: This doesn't arise. I asked no questions on this topic

11 and if it wasn't dealt with by me he cannot ask questions about it in

12 re-examination. Had this topic been covered in chief, I might have taken

13 a different course in cross-examination of this witness.

14 JUDGE ROBINSON: Yes. Mrs. Marinkovic, that concludes your

15 testimony. Thank you for coming to the Tribunal to give it, and you may

16 leave when we are adjourned. We are going to adjourn now for 20 minutes.

17 Thank you.

18 [The witness withdrew]

19 --- Recess taken at 10.38 a.m.

20 --- On resuming at 11.06 a.m.

21 JUDGE ROBINSON: Mr. Nice, on the question of the admissibility of

22 exhibits.

23 MR. NICE: Your Honour, yes. Before I turn to the exhibits that I

24 would seek to produce, can I invite the Chamber to consider the position

25 of all those exhibits bearing the name of Dragan Jasovic - I'll give you

1 the numbers of them in a second - and invite you to decide that they

2 should no longer be or should not be exhibits in this case. They are --

3 I've forgotten the number of the overall exhibit, but within this last

4 witness's exhibit they are tabs 46 -- it's D290. Tabs 46, tab 47, tab 48,

5 tab 51, tab 52, and tab 54.

6 My application is based on the grounds that -- as follows: For

7 hearsay to be admitted - we've travelled -- travelled this road before but

8 I must set it out - the material has to be reliable, has to be indicia of

9 reliability. The Chamber will also have in mind, although it's not

10 determinative of this issue, but will have in mind that Rule 95 also

11 specifies the exclusion of evidence obtained by methods which cast doubt

12 upon its reliability or if the admission is antithetical to or would

13 damage the integrity of the proceedings.

14 A very brief reminder of the recent history of similar exhibits

15 would be to the following effect: That with Andric, interviews were

16 produced and are exhibits, counter-material in the form of video

17 recordings of one of the people interviewed explaining and thus denying

18 the content of the interview rejected. In Lituchy, interviews admitted

19 but a statement taken by one of the people interviewed admitted as a

20 Prosecution exhibit.

21 And we then turn to this last witness. Looking at those two

22 previous examples, in Andric the person whose words the accused seeks to

23 rely on, that is the person interviewed, was interviewed by a journalist,

24 not by the witness. In Lituchy, the person whose words the accused seeks

25 to rely on, i.e., the person interviewed, was interviewed by Lituchy. In

1 this last witness's case, the person whose words the accused wishes to

2 rely on was interviewed not by the witness, not at all in the witness's

3 presence, but by someone else who simply handed the document to the

4 witness in some way.

5 Again, Andric and Lituchy to some degree tangential. This

6 material not tangential at all. If it be the case that a significant

7 number of the people in gully were ever shown to be members of the KLA,

8 then not only would there be consequences -- possible consequences for a

9 count in this indictment but, bearing in mind the significance of the

10 Racak event and the history overall, there might be rather broader

11 implications. So this is important material potentially.

12 I should, incidentally, say because it's something that I must

13 ensure the accused knows, it's a definite parenthesis before I forgot it:

14 The Chamber will recall that some of the evidence upon which we really to

15 prove that people in Racak who were killed were not members of the KLA was

16 someone called Shukri Buja. He -- and it's another of these interesting

17 crossover realities of prosecuting all sides of a conflict. He has been a

18 witness in the Limaj case on matters other than Racak. He was called by

19 the Prosecution, but he was actually turned hostile by the Prosecution,

20 and that's something that we're going to set out in a Rule 68 notification

21 so that the accused, if he has missed it already, doesn't miss it. But

22 you should know that before we move on.

23 I come back to my theme: The Prosecution's position with all

24 these categories of statements is that they should be excluded.

25 Alternatively, if they are admitted, that then the counter-material should

1 go in in order, as it were, for the time being to neutralise it, to

2 neutralise its value for the truth of its content. But our base position,

3 and I should also observe that these matters are under applications of two

4 different kinds before Your Honours at the moment, but our basic position

5 is that when material of this kind is produced, especially this last

6 witness, for the truth of its content, the appropriate course would be for

7 the person on whom the accused wishes to rely and who in all cases are

8 available to be called and dealing with the particular witnesses subject

9 to the tabs of Exhibit 290 to which I have referred, the Court will know

10 that my learned friend Mr. Saxon and Investigator Jonathan Sutch went down

11 over the course of what would have been a holiday. They found, without

12 too much difficulty, three. One was recorded as dead, and the others they

13 couldn't find in the time available.

14 I should tell you also this: That they took careful steps to

15 ensure that there was no inter-witness contamination, and indeed, as I'm

16 informed, that when the witnesses were approached and spoken to and the

17 topic of interest revealed to them, at a very early stage, with little or

18 no prompting, they explained the circumstances that are subsequently set

19 out both in the videotaped interviews of which we've seen very short

20 extracts and in the summarised but signed statements that are before you.

21 In short, looking at the Defence exhibits, our position is this:

22 If you have two statements from the same person saying A and not A, saying

23 one thing and then the reverse, then it would be quite impossible, in the

24 absence of more, to choose between them and to say that one was reliable.

25 This would apply as much to us, now that we know of the existence of the

1 statements upon which the Defence relies if we wish to rely on our

2 statements in written form, as it does to him. So that our position, Your

3 Honours, to consider is that these statements as the accused would wish to

4 produce them on an important matter simply do not have, in the light of

5 the material we've now been able to provide to you before the close of the

6 witness's evidence, they do not qualify as reliable and should not be

7 admitted.

8 The consequence of admitting them, it is said, is little different

9 from the consequence of admitting hearsay in the Prosecution case, a

10 proposition with which I respectfully differ -- from which I respectfully

11 differ.

12 First, the various examples of hearsay relied on in the

13 Prosecution case were subject both to our shouldering the responsibility

14 of establishing reliability, which we did in all cases, and where admitted

15 was subject either to express arguments by my learned friend Mr. Kay, then

16 amicus, arguments by the accused, and sometimes by simply, on each of

17 their parts, concession that the exhibits should be produced. And this

18 matter is dealt with in an annex, to some degree, to one of the recent

19 filings by the Prosecution with which the Chamber may be acquainted.

20 So that in fact in the Prosecution case the test for reliability

21 was turned to and satisfied before the material was admitted.

22 Here, the accused has not, in our respectful submission, done

23 anything to satisfy you to the sufficient extent of the reliability of

24 this material upon which he would seek to rely, and we would be left with

25 these witness statements and any others adduced in the same way of

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1 importance with the following, I would invite you to say, unusual if not

2 bizarre consequence: If the accused if able to call a witness such as the

3 last witness who can produce a statement handed to her by a second party,

4 I am barely able to ask any questions of the witness. Indeed, I was

5 almost stopped from asking any questions of Ms. Marinkovic yesterday about

6 the statements and the counter-statements, if I can so describe them, that

7 I produced.

8 If the statements then go into evidence, the following two odd

9 consequences follow: One, if the matter is crucial or critical or even

10 very important, I am obliged to make efforts to call the people, and yes,

11 I could call these three people who have made statements over the last

12 weekend, so that the person who seeks to rely on what they say doesn't

13 call them and I do so that he can just cross-examine them, but more than

14 that, the accused thereby gains an automatic extension of time for his

15 case. Indeed, one could argue, by extension, that his best course if

16 these statements are ruled admissible, would be to get the balance of his

17 evidence wherever possible produced in statement forms, either handed to

18 the witness or handed via an intermediary to the witness, in goes the

19 evidence, and I'm told, well, if you don't like it, you've got to call the

20 witness and then he's got to be to be available for cross-examination by

21 the accused. It has, in our respectful submission, reached that

22 potentially concerning position and we would invite you very seriously to

23 reconsider it, to reconsider the position about these exhibits.

24 Now, Your Honours, on questions of reliability you have the three

25 statements, each of which were taken, and I can, of course, only explain

1 to you what has been explained to me by Mr. Saxon and Mr. Sutch as to the

2 circumstances but I hope that you will accept that, but we also have other

3 material going to show unreliability and I invite you to look, for these

4 purposes, without deciding on its admissibility, at this document

5 Spotlight 16. And as we turn to it can I take a minute of your time to

6 make something clear which I hope is clear but which may not be clear.

7 The Court, and I understand why, is inclined to accord to a judge

8 or a policeman coming from the former Yugoslavia the level of respect,

9 deference that such an office holder in another country must justifiably

10 attract. I must make it plain the Prosecution's view -- not the

11 Prosecution's view, but the Prosecution's submissions on this general

12 topic, if relevant, and if it needs to be argued on evidence in due

13 course, will be that the police and the judicial system was acting as an

14 arm of politics and must ultimately be considered at least potentially in

15 that light and accorded no special deference. And indeed, if there is

16 something if not concerning at least interesting about the degree to which

17 this Court, in its efforts to be fair, super fair to this accused,

18 excludes on the basis of potential unreliability sometimes the material of

19 its own investigators who come here to meet the highest standards of human

20 rights conduct, rejects that material because they may be thought to be

21 partisan simply by working for the Office of the Prosecutor or the ICTY,

22 and would be prepared to accept this material from the man Jasovic against

23 whom there is now signed material going to show that he did the things

24 asserted against him.

25 With that observation in mind, can we look at Spotlight Number 16.

1 JUDGE BONOMY: Before you move onto it, you could help me, I

2 think, to understand part of what you're saying. There's a lot of

3 Prosecution evidence about, for example, persecutions, forcible transfer,

4 and so on, which comes from reports compiled by interviewing refugees, and

5 the reliability question, I assumed, was whether this was a genuine

6 document in the sense that people went out and compiled it in the way in

7 which they said, and that gave it a certain quality that enabled it to be

8 admitted. I didn't understand that the reliability issue was whether all

9 the witnesses who gave their stories were reliable. I thought that was a

10 matter for the Trial Chamber to assess when it came to evaluate all the

11 evidence.

12 And similarly here, when you have a judge carrying out an

13 investigation and gathering the material that others have prepared, I

14 assumed the reliability question was, was what actually happened in the

15 investigation, not whether people were tortured in the course of the

16 carrying out of the inquiry. That was something we would have to assess

17 on a different basis. Now, your submission doesn't proceed in that way.

18 You're mixing all aspects of reliability together and saying we've got to

19 make a judgement about the quality of the evidence in our ultimate

20 consideration before we decide whether to admit it or not.

21 MR. NICE: I certainly hope I'm not mixing questions of

22 reliability. In dealing with Your Honour's question in the like two

23 parts: Where material was produced at the Prosecution's hand, Human

24 Rights Watch reports, OSCE, matters of that sort, there was extensive

25 evidence given by the compilers of the circumstances in which and of the

1 disinterested character in the part of the staff employed the materials

2 obtained. Sorry, it's a long and unattractive sentence but you know what

3 I mean. They give evidence that their staff were drawn from here, there,

4 and everywhere and were properly trained and that they produced the

5 material in a routine and satisfactory way.

6 Now, it may be, to pick up Your Honour's potential distinction,

7 that in allowing the evidence in at that stage, both issues of reliability

8 were in everybody's minds, that then the method of production being

9 directly shown to be reliable, that is to say this is -- these are the

10 questionnaires, they were prepared by my staff, they were processed and I

11 took overall responsibility for the compiling of the report, as one of the

12 witnesses might have said. But also, that if you have hundreds of

13 witnesses -- or not witnesses, hundreds of people answering questions and

14 an overall conclusion in the form of composite reports of the kind we've

15 seen being prepared, then there is sufficient indicia over all of

16 reliability of the content for it to be relied upon as to the truth or the

17 general truth of its content.

18 THE INTERPRETER: Could the speaker be asked to speak into the

19 microphone.

20 MR. NICE: Certainly, and probably to slow down, but ... I

21 apologise if I get carried away a little bit.

22 So my recollection -- I suppose we'd have to look at the arguments

23 more fully to check whether the distinction that Your Honour draws was in

24 our minds, but with that distinction in mind, I think that the documents

25 were dealt with for reliability on both bases at the time.

1 Now, reliability here is on the following basis: I have assumed

2 reliability so that, in the absence of more evidence, the Court can rely

3 on this or may rely on this for the truth of its content. Let me say at

4 once if the Court says that even though these documents are produced there

5 is no question of the Court relying on the content at all without more,

6 either coming from the named witness and the named people or something to

7 that extent, why, then, my application would be unnecessary. But there

8 could be no purpose on the accused's part, and I don't think that he urged

9 otherwise, for his adduction of this material other than to go to show the

10 people in the gully or elsewhere killed in Racak were fighting members of

11 the KLA. That's why he wants this material in, and that's why it is

12 potentially important for the reasons that I've given.

13 Your Honours, if I can return to the theme of the material going

14 to show that material produced by Dragan Jasovic should not be adduced,

15 you have the three statements but can I invite you also to look at

16 Spotlight 16, and with my observations about the police and judicial

17 system generally in mind, can I also explain to Your Honour that in

18 countries where -- it can sometimes be that in countries where police and

19 judicial systems occupy politicised positions, organisations that have the

20 courage to operate according to human rights norms that are acceptable are

21 extremely important sources of information.

22 This one -- and it's more than possible that I will apply to call

23 somebody from this organisation if it's judged appropriate and helpful.

24 This one is headed by Serbs, and you can see from another document that

25 its leader has cited, someone prepared to take grave personal risks in

1 order to preserve standards, you may conclude.

2 If you will be good enough to go to the index, which is the second

3 page, you'll --

4 JUDGE BONOMY: What's the standing of this document in our debate,

5 though? Because I've written on it, when it was dealt with yesterday,

6 "Nothing established from this document."

7 MR. NICE: Well, Your Honour --

8 JUDGE BONOMY: Now, what's the status of it for us to consider at

9 this stage?

10 MR. NICE: At this stage I'm inviting you to consider it entirely

11 de novo as if I'm bringing it to you for the first time on an argument

12 about reliability of Jasovic's material.

13 JUDGE BONOMY: How can you do that?

14 MR. NICE: This is a published -- Your Honour, I can and I'd be

15 grateful if I can expand on it even if Your Honour rules against me in due

16 course.

17 This is a document published in February 1995 by an utterly

18 respectable human rights organisation.

19 JUDGE BONOMY: So you say.

20 MR. NICE: So I say. And if you'd be good enough to look, please,

21 at the index, you'll see that 3.3 document of February 1995, page 15, I

22 think it's actually page -- it is page 15, relates to electric shocks at

23 Urosevac police station, and you'll bear in mind that the witness alleged

24 that she'd had no complaints of torture of any kind, and if you look at

25 this well-known publication, what I'm taking you to is but one sample of

1 what is said here was established from 195 people who were interviewed.

2 And at page 3. -- at page 3.3 on page 15, at the foot of page 15 and then

3 over to page 16 --

4 JUDGE BONOMY: This is 1994 you're talking about.

5 MR. NICE: 1994.

6 JUDGE BONOMY: What is the relevance of that to the evidence that

7 we were considering yesterday?

8 MR. NICE: It's the same police station, and it shows, if Your

9 Honour would be good enough to allow me to explain, it shows, apart from

10 recorded systematic use of violence, it shows at the very police station

11 an 18-year-old, and I turn to page 16 --

12 JUDGE KWON: Mr. Nice, could you hold on a minute.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Mr. Nice, you may continue.

15 MR. NICE: I'm grateful.

16 JUDGE ROBINSON: We'll hear from the others on this document.

17 MR. NICE: Yes. On page 16, then, from the same police station in

18 1994/5, which is, for example, the time of the police trial that the

19 witness did deal with and, more materially, is the same police station as

20 these three people were interviewed at, we see and Your Honours can read

21 it quickly, more quickly than I can read it at acceptable interpretation

22 speed, an account from a young man being beaten and electrocuted at the

23 police station by the police.

24 Now, if that is material, published material, contemporaneous with

25 the events described, or fairly contemporaneous within an overall study

1 that --

2 JUDGE ROBINSON: What year is this?

3 MR. NICE: 1995. And if I can take Your Honours back -- I don't

4 want to read out the gory details of the electrocution -- and

5 incidentally, on the previous page, page 14, there is police brutality at

6 the Urosevac farmer's market, so there is another incident in the same

7 area. If Your Honours would, for speed, be good enough to come back to

8 the cover page or the front page, the centre spoke with 165 persons who

9 claimed to have personal experience with politically or ethnically

10 motivated searches, arrests, or detention. A large majority also

11 described torture or instances of cruel, inhuman or degrading treatment

12 during questioning by the Serbian police in Kosovo. In a number of these

13 cases allegations of mistreatment at the hands of the police were

14 confirmed by medical reports signed by ethnic Serb or ethnic Albanian

15 doctors. It was impossible to study all the cases brought to the

16 attention of the centre field researchers. In-depth documentation and

17 analysis were made of only a relatively small proportion of the large

18 number of cases recorded, and so on. So that's the basis of this report.

19 Now, Your Honours, as I say, I'm happy for these purposes to treat

20 it, and indeed should treat it for these purposes, as freestanding

21 material, starting afresh. The Defence offers the tabs 46 and so on into

22 evidence. I'm in a position to say, but here is a contrary statement of

23 three of these witnesses, not only denying the content or the material

24 part of the content of their statement but explaining how the statements

25 were taken by the named officer.

1 I point to you other published material going to show a pattern of

2 violence, including violence and torture at the police station concerned.

3 The Chamber asks itself the question: For the purposes of producing

4 important evidence through hearsay material, can the Chamber be satisfied

5 that there are sufficient indicia of reliability in both the categories

6 that His Honour Judge Bonomy referred to, and my respectful submission

7 would be that it could never conceivably be satisfied as to the important

8 element of reliability, that is to say, the content of the statements for

9 the truth of their contents.

10 And so my request to the Court is to reconsider the production of

11 those exhibits and to rule that they be not admitted.

12 Before turning to our own exhibits and the consequences one way or

13 another for that --

14 JUDGE KWON: Pausing there, Mr. Nice.

15 MR. NICE: Yes.

16 JUDGE KWON: What you are asking of us now is to agree with you

17 that the judicial system of Serbia at that time was part of politics.

18 MR. NICE: I'm not asking you to agree with that yet. Of course

19 not. But I am making it quite plain what the Prosecution's position is,

20 which is why it may be necessary, if witnesses like this are called, to

21 explore the matters by all the material available according to the rules

22 of admissibility of this Tribunal.

23 I mention it because there may be in the Chamber an assumption

24 that a judicial or police system is entitled to some credit beyond that to

25 which the evidence may show this one is entitled, and therefore I'm

1 inviting you simply to have in mind our position so that no witness starts

2 with special credit and that there should be no special deference paid to

3 witnesses of the kind we've just seen on account simply of the position

4 that she held, and indeed I asked some opening questions that marked the

5 distinction between, for example, that witness and others named in this

6 case who have been dealt with as people whose evidence could not be

7 accepted in written or other form. Investigators. Investigators that we

8 know about, she was given every opportunity to say anything she liked

9 about them, are unimpeachable, it would appear, by reputation. She has

10 been the subject of many allegations. We only looked at some of them

11 because we didn't have time. The allegations made by lawyers, and I may,

12 if necessary, apply to call one of the lawyers who dealt with the police

13 case. But also other public allegations of an extraordinary kind, if not

14 founded on some accuracy on the part of those reporting to them -- to the

15 people recording them.

16 All I desire is that there should be no special credit given to

17 what is said to be a functioning judicial process or a functioning police

18 service.

19 JUDGE KWON: It is still for you to prove.

20 MR. NICE: Your Honour, respectfully, no. This Chamber has to

21 have and has to develop a real understanding and view of what happened in

22 the former Yugoslavia. And the problem is, and it is a real problem for a

23 Court that can only hear material adduced in the adversarial system, that

24 it may invest institutions in other countries with qualities with which

25 it's familiar from its own experience, and there may be no reason to do

1 that. And I'm simply inviting the Chamber to be careful to establish a

2 level from which it starts to assess the evidence.

3 But Your Honour said it's for me to prove that. Respectfully, no.

4 We --

5 JUDGE ROBINSON: The real view, Mr. Nice, that you would want us

6 to have of the judicial system can only be one that is based on evidence.

7 MR. NICE: Precisely so. But when His Honour Judge Kwon says the

8 burden's on me to prove that, I can only prove it through witnesses called

9 to assert the contrary, which is why I took some time, to His Honour Judge

10 Bonomy's disquiet yesterday, in trying to get to the witness who took

11 every opportunity it may be to extend answering, to show allegations of

12 some of those that we have available made against her and supported in

13 part by the material coming from doctors. So that -- I needn't repeat

14 myself.

15 Yes, if it's material to explore this in detail and to establish

16 it in detail, then it has to be done by evidence and I'll go further with

17 that with other witnesses. I've gone some way already.

18 My urging on the Court is not simply to give artificial credit to

19 one institution crediting it with qualities that that institution simply

20 may not have. And I repeat, there is something slightly curious, it may

21 be, in giving credit to, if Chamber was so to do, to a judicial and police

22 system in the former Yugoslavia thus to allow this type of statement in

23 when it has said as against its own investigators -- not its

24 investigators, that would be the accused's characterisation; the

25 investigators of the Office of the Prosecutor because they are, in a

1 sense, working for a party so-called, that they're not to be credited with

2 reliability when everything about the creation of this institution and the

3 work of the investigators here shows that they came here to work for and

4 do work for the highest standards of modern humanitarian law and, what's

5 more, are engaged, as everybody else here is, not in prosecuting just one

6 sector of society but looking at investigating and prosecuting all of

7 them.

8 JUDGE ROBINSON: As far as I'm concerned, Mr. Nice, you're making

9 too much of this point.

10 MR. NICE: Very well. I was responding to His Honour Judge Kwon's

11 question.

12 JUDGE ROBINSON: The Chamber only acts on the basis of the

13 evidence before it except where presumptions are permissible according to

14 law.

15 MR. NICE: Your Honour, I was responding to His Honour Judge

16 Kwon's question, and Your Honour's explanation of the position in a sense

17 reinforces my position: There is no presumption of credit -- I can

18 express it in Your Honour's terminology: There is no presumption of

19 credit in favour of material produced by this particular system.

20 JUDGE ROBINSON: Or against.

21 MR. NICE: Or against. Neutral. I entirely accept that until

22 evidence is available to show one way or another.

23 So in our -- in our submission, the statements produced reinforced

24 by this version of Spotlight should drive the Chamber to the conclusion

25 that if the accused wishes to rely on the words of the people interviewed,

1 then it's those people who should be called, not by us in our time or in

2 an extended rebuttal case, but by the accused in his time.

3 Your Honour, then can I make the obvious point about the

4 consequences of your decision on this application for material we've

5 adduced or sought to adduce. If the evidence is excluded, then obviously

6 the videos and the interviews produced would not be subject of an

7 application to be produced. It would be unnecessary. If, on the other

8 hand, the Chamber rules against me, and I'm not encouraging that in any

9 sense, I'm just allowing for that possibility because I cannot make this

10 application any more strongly or with any more force and concern than I

11 do, but if it rules against me, then in the same way as the Lituchy

12 counter-statements were allowed in I would invite the Chamber to state

13 that the counter-statements of the three witnesses and indeed the

14 counter-videotapes, which have only be viewed in part but can be viewed in

15 full, should be available to the Chamber for consideration.

16 I can deal with other exhibits --

17 JUDGE KWON: Can I ask a technical question in relation to that.

18 Why did you not try to produce it pursuant Rule 92 bis while you could

19 have done that?

20 MR. NICE: You mean over the weekend.

21 JUDGE KWON: Yes.

22 MR. NICE: First of all, we wouldn't have had a legal officer down

23 there who could have taken the statement. If necessary, we can deal with

24 92 bis later, but we always need a legal officer or a judge down there.

25 These exercises aren't that easy. They take a great deal of organisation,

1 and as it were it's difficult enough to find the people and then to

2 find --

3 JUDGE KWON: I think I understand that.

4 MR. NICE: And also there's the question, and we can serve it

5 under 92 bis, and we may do that if it ever becomes necessary, but can

6 I -- Your Honour actually triggers me to think of something else which

7 I've been meaning to say: That the Chamber would also want to have in

8 mind that all this material that the accused has produced through the

9 particular three witnesses but through this last witness has come to our

10 attention at the last possible moment, his intention to rely on it. Now,

11 if we'd had advance notice of detail and so on and so forth, we might have

12 been able to do a great deal more. We might have been able to find those

13 other interviewees who are probably alive, but we couldn't.

14 With future witnesses who may be invited to produce the same

15 material we simply may not have the time or the success that we've had

16 with Andric, Lituchy, and this witness. And indeed with this witness had

17 it not been for the happenchance of the Easter vacation almost certainly

18 we wouldn't have been able to present you with material as valuable for

19 the exercise of judging reliability as we have.

20 JUDGE BONOMY: Are these the exhibits you say were not included in

21 a Rule 65 ter disclosure?

22 MR. NICE: As I understand, none of this was --

23 JUDGE BONOMY: Why don't you object to them then?

24 MR. NICE: I drew it to your attention right --

25 JUDGE BONOMY: Yes, you did but unless you tell us that you object

1 because you'll be prejudiced, then it's difficult to take a firm decision

2 against at least considering the position, but --

3 MR. NICE: Your Honour, with great respect, two or three answers

4 to that. I've taken objections along the way. I've made efforts and

5 applications to limit the scope of the accused's evidence. They have all

6 been -- they've been by and large nearly all rejected and I've made it

7 clear that my anxiety is not to limit him by reason of his own amateur

8 status as a litigator; I'm anxious that if material may assist the Chamber

9 and he wants you to see can go in, it should go in. So I have to balance

10 things but I have always tried to draw to your attention this.

11 JUDGE BONOMY: We had a brief discussion, though, about 65 ter and

12 the absence of material from the disclosure at the stage -- at the

13 beginning of the evidence of a witness. Now, it may not -- was it Gojovic

14 or was it this witness?

15 MR. NICE: It wasn't this witness. It may have been Gojovic, and

16 there --

17 JUDGE BONOMY: And there was a warning given to the accused at

18 that stage.

19 MR. NICE: There was a warning that the accused would be kept to

20 the terms of his 65 ter, but of course the 65 ters are so narrow, are so

21 general they pretty well encompass anything.

22 JUDGE BONOMY: No, no. But as far as the material, the exhibits

23 are concerned, they should be disclosed. At least, the existence of the

24 material and the fact that it may be relied upon should have been

25 disclosed.

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1 MR. NICE: Should have been disclosed.

2 JUDGE BONOMY: Yes.

3 MR. NICE: Plus the fact that we ought to have had some

4 notification -- it's impossible for us to work without some notification

5 of the detail of what a witness is going to rely on by way of exhibits if

6 he relies on a 65 ter summary as broad as these are, and --

7 JUDGE ROBINSON: Mr. Nice, you might also have in mind that in the

8 Prosecution case the Chamber was fairly lenient in relation to disclosure

9 of exhibits in relation to the Prosecutor.

10 MR. NICE: Your Honour, there are two important answers to that

11 question. First, the Chamber was generous in the sense that where

12 documents had not been produced -- had not been identified in our 65 ter

13 list, they were not the subject either of objection by the accused, the

14 amicus, or exclusion by the Chamber, correct. But secondly, the Chamber

15 will recall not only that all exhibits wherever possible were provided in

16 advance but they were regularly provided twice; once generally and then

17 once specifically as long in advance as it was possible for the accused to

18 have once we knew what was going to be relied upon.

19 Of course the general generosity -- I'm not sure it's actually the

20 right word, but the general generosity of approach is one that I've also

21 had in mind in limiting my objections. I simply don't want to be, and I

22 don't want to be seen as somebody who is confining an amateur litigator

23 like this accused by technical provisions, and it's a balance I have to

24 draw between taking that -- that strict position and an overeasy one which

25 perhaps His Honour Judge Bonomy is wondering whether I've taken in

1 relation to these exhibits. But that's what I've been trying throughout

2 to do, and it was with that in mind, just dealing, for example, with the

3 question of general admissibility, that we raised with you, for example,

4 scope of evidence in a few early motions and then explained quite

5 specifically that if you ruled against us, then we would regard that as

6 helpful for our future approach, and it seemed to us that the general

7 drift of the Chamber's rulings was to be inclusive and generous, and that

8 guides me in the approach I take.

9 But nevertheless, it's only by chance that we've been able to lay

10 before you material showing that this evidence is unreliable or doesn't

11 have the indicia of reliability upon which it would be appropriate to

12 rely.

13 Your Honours, I made reference to --

14 JUDGE BONOMY: The rule -- sorry.

15 MR. NICE: Yes, of course.

16 JUDGE BONOMY: I've had a look at the rule while we've been going

17 on, and it's -- it's rather the other way around. "No evidence shall be

18 admissible if obtained by methods which cast substantial doubt on its

19 reliability or if its admission is antithetical to and would seriously

20 damage the integrity of the proceedings."

21 Now, the trouble is that the evidence you submit as indicating the

22 method by which it was obtained casting substantial doubt is not really

23 evidence at the moment. It didn't come in as part of the Prosecution

24 case. It's part of an investigation carried out, and it's -- I have

25 difficult with its status.

1 MR. NICE: Well, its status as evidence formally may be for

2 ultimately -- for later consideration, but -- and I drew Rule 95 to your

3 attention as one of the overriding Rules of the Tribunal, but the case law

4 rulings, coming from Tadic, I think, on the admissibility of hearsay

5 material all requires generally satisfaction with indicia of reliability.

6 And, of course, if we look at these particular statements, we can also

7 have in mind that one of them on our information, one of the makers of the

8 statement is now dead, so that that would have to satisfy, if produced in

9 the normal and other way, would have to satisfy conditions set out in one

10 of the Rules of the Chamber to which we would have had an opportunity to

11 reply and deal with in detail had we been given notice.

12 Your Honours, I referred to a recent filing dealing with the basis

13 of admissibility of certain Prosecution hearsay material that was relied

14 upon by the assigned counsel in their pleading. I simply draw to your

15 attention that it is, in case anybody wants to discuss it, it is

16 confidential because part of the material referred to in it was, I think,

17 in closed session, but I don't desire to go into it in detail now but it's

18 there for you to consider.

19 Your Honours, that's all I say on my basic submission. Would it

20 be help if I just to turn to the documents we've looked at?

21 JUDGE ROBINSON: Yes.

22 MR. NICE: There is the article by Natasa Kandic, the later

23 article which made an allegation against the last witness. I would invite

24 the Chamber to say --

25 JUDGE KWON: You are referring to B92.

1 MR. NICE: B92, yes. I would invite you to say that that is

2 material that by the very fact of its being published in the environment

3 with which you're becoming or are familiar, is material going to the

4 witness's reputation, and although she of course denies it, it's something

5 that you should know exists.

6 As to the next document, it was the petition, we've dealt with

7 that this morning. I'll deal with that with a later witness.

8 We then had a complaint --

9 JUDGE BONOMY: Sorry. I'm trying to catch up.

10 MR. NICE: Sorry.

11 JUDGE BONOMY: Yes. Thank you.

12 MR. NICE: We then had one -- I think four documents at least

13 relating to Fazli Balaj, the lawyer and his clients, a complaint by him

14 the telegram to the Ministry of the Interior, the complaint by the lawyer

15 to many organs, including the judge and others, about torture, and the ten

16 medical certificates, and I'd invite those to be admitted. The witness

17 dealt with them.

18 The next document was the Spotlight report number 16. Without

19 reference to its value simply as a publicly available document in the

20 previous discussion and for want of time, and I have to observe that this

21 witness was capable of taking a lot of time, I did my best to be fast but

22 limited success, a part of this was put to her, not all of it but I would

23 have done if I had had more time, in particular on page 23 as a public

24 expression of the nature and purpose of the 1994 criminal proceedings over

25 which she either presided or in which she was involved, and this is a

1 public document, it's part of our case on the functioning of the judiciary

2 at that time, and I'd invite the Chamber to admit it for that purpose.

3 I would now also invite the Chamber to admit it for the purpose of

4 showing that there were indeed public complaints of torture,

5 notwithstanding some of the recent answers of the witness where she said

6 no such complaints were known of by her effectively.

7 We then come to the six exhibits, the three videos and the three

8 statements, which I would seek to be admitted on the same grounds as in

9 Lituchy unless the Chamber accedes to my application to exclude all

10 documents bearing the signature of Dragan Jasovic.

11 And then, finally, there is this document which the Chamber will

12 recall, the note by the Prosecutor concerning Racak which was -- it's

13 still not translated. I'm not sure whether it should qualify as a

14 Prosecution or a Defence exhibit. The witness produced it, voluntarily

15 read parts from it, and I simply obliged her to read the full context, but

16 I think one way -- or I respectfully submit, one way or another it ought

17 to be before you as an exhibit. I'm neutral as to on whose account.

18 Your Honours, if I can help you further.

19 JUDGE KWON: No doubt you will wish to exhibit medical reports

20 from Pristina faculty of medicine.

21 MR. NICE: Yes.

22 JUDGE KOWN: There's ten of them.

23 MR. NICE: There's ten of them, yes. I thought I had already

24 mentioned them. If I haven't, it's my oversight. Yes, the ten medical

25 certificates. That is the fourth of the four documents concerning

1 allegations of torture by Isak Aliu, in respect of Isak Aliu.

2 Your Honours, I'm sorry to have taken some time. I gather from

3 Ms. Dicklich that by taking that time I've currently now gone over 50 per

4 cent if we add administrative time to the time I took whereas my own

5 cross-examination was well within the 50 -- well less than the 50 per

6 cent, but there it is. Thank you.

7 MS. HIGGINS: Your Honours, if I may address the points in turn

8 that Mr. Nice has raised, starting firstly with the statements taken by

9 Dragan Jasovic.

10 The Court has or should have in mind at the start that the witness

11 was an investigating judge, as His Honour Judge Bonomy has already stated,

12 and that these documents are part of her court files; documents that were

13 not prepared for this litigation but prepared way back for the purposes of

14 other investigations that came into her hands.

15 The documents, as Your Honours will have