⁹⁸⁶⁷

Monday, 9 September 2002

[Open session]

[The accused entered court]

[The witness entered court]

--- Upon commencing at 9.04 a.m.

JUDGE MAY: Yes, Mr. Ryneveld. We're going on with the evidence of Mr. Zdrilic. We'd started it Monday last week, so of course the witness remains under the declaration.

MR. RYNEVELD: Thank you, Your Honour.

WITNESS: JOHN ZDRILIC [Resumed] Examined by Mr. Ryneveld: [Continued]

Q. Mr. Zdrilic, if I recall correctly, at the conclusion of last day when your evidence was adjourned, you had been discussing with us a document that you had prepared under title Annexure JZ-1, and I believe you had indicated to us at that time that these were the names of a particular family, and you had described for us basically how this annexure sort of represented a family tree. You also mentioned, I believe, the purpose of the legend. The crosses meant that those people were reported missing or dead; is that correct?

A. That's correct.

Q. And the shaded or highlighted names, what did that represent again?

A. The persons that as a result of the DNA comparison that was conducted in the Madrid labs in Spain had now been identified with remains located in the Batajnica exhumation site in Serbia. ⁹⁸⁶⁸

Q. All right. Now, you've provided four of those attachments or annexures. I just want to deal with one more, if I may. That is number Annexure JZ-2. Do you have that with you? And can you put that on the ELMO for us, please.

Very briefly, Investigator Zdrilic, would you mind indicating to the Court what this particular document represents.

A. Again, JZ-2 is another family chart, the head of the family being Vesel and Hava Berisha, all persons on the chart being Berisha unless otherwise known. And it depicts their children and their children's children.

Again there are certain names that are highlighted, which are highlighted, and that can be seen, and these again are persons that have been identified as a result of DNA comparisons conducted by the Madrid labs in Spain.

Q. And again, the cross beside the name indicates that these persons are dead or believed dead; is that correct?

A. That's correct. There are crosses beside the names of those persons believed to have been killed in the Suva Reka cafe incident on the 26th of March. There is also the addition of a star beside some of the names, as denoted in the legend, and that star is the -- there were several bodies that were recovered in Suva Reka in 1999 as part of the exhumation process. Those persons that were recovered and identified have stars next to their names.

Q. All right. There also appears to be two names that are underlined. What are those? ⁹⁸⁶⁹

A. The two names that are underlined, as I'm indicating here, the first being Vjollca Berisha, 36 years of age, and her son Gramoz, eight years old, are both survivors of the incident in the Suva Reka cafe.

Q. I see. Finally, perhaps you could turn to JZ-3 very, very briefly. Again for the sake of brevity, this is again another family tree that you have provided; is that correct? Same legend, denotes the same indicators, the cross and the stars; is that correct?

A. That's correct. This is the family tree of the family of Faik and Bahrije Berisha.

Q. In particular, I'm interested in the name in the centre that's underlined as a child or as a -- I'm sorry, is that -- can you tell us -- the one that's underlined, who is that?

A. I believe you're talking about Shyhrete Berisha, 37 years of age. She was the wife of Nexhat Berisha, who is a son of Faik and Bahrije. Shyhrete is highlighted and underlined, who was also a survivor of the cafe incident in Suva Reka in 1999.

Q. And in your capacity as an investigator, are you aware of whether or not that individual has given evidence in these proceedings?

A. That's correct, Shyhrete Berisha gave evidence in these proceedings.

Q. Now, sir, just to bring that --

JUDGE KWON: Mr. Ryneveld, is Shyhrete Berisha a witness to --

MR. RYNEVELD: Yes.

JUDGE KWON: She was here as a witness.

MR. RYNEVELD: Yes, Your Honour. That was the purpose of the last ⁹⁸⁷⁰ question.

JUDGE KWON: Thank you.

MR. RYNEVELD: Might those annexures perhaps be marked as exhibits in these proceedings, Your Honours?

JUDGE MAY: Yes.

THE REGISTRAR: They will be marked Prosecutor's Exhibit 314.

MR. RYNEVELD: Thank you.

Q. Now, very briefly again, and I apologise if I'm repeating some part of your evidence from last day, but just by way of summary, sir, we've already marked the Spanish report as an exhibit in these proceedings. As a result of receiving the Spanish report and as a result of your knowledge of the investigations to date, were you able to indicate to date how many of the people from the cafe have now been positively identified in the Batajnica gravesite in Serbia?

A. To date, with the inclusion of the unnamed foetus, there has been 11 persons identified.

Q. 11 of approximately how many people that we know to have been in the Suva Reka cafe, approximately?

A. Approximately 44 to 48 persons.

Q. Now, sir, two other areas. The first area that I want to ask you about is the -- during the course of your employment with the Office of the Prosecutor, have you become -- have you had an opportunity to see certain documents that outline some of the correspondence between the Office of the Prosecutor or the Tribunal with Serb authorities in the Federal Republic of former Yugoslavia? ⁹⁸⁷¹

A. Yes, I have.

Q. And in particular, sir, perhaps with the assistance of the usher, I'm going to show you a packet of some ten documents which are highlighted. And if I can hand you the whole package, we perhaps can take them one at a time and put them on the ELMO.

MR. RYNEVELD: Your Honours, I have provided a very brief summary, but I wanted to perhaps show the document on the ELMO and ask the witness about these documents.

If you could put -- I'm sorry. We have additional copies. Now, Your Honours --

JUDGE MAY: Where is this in the statement, Mr. Ryneveld?

MR. RYNEVELD: This document is not in the statement, Your Honour. You will recall that during a discussion about whether or not the Prosecution would be asking whether Kevin Curtis would be called it was suggested that there were some documents that would otherwise have been introduced through Mr. Curtis that might be just as conveniently tendered through Mr. Zdrilic, and it was this method whereby we thought would be the most convenient way to simply introduce these documents into evidence.

JUDGE MAY: Well, you can explain, if you would, what the relevance of these documents is to this trial.

MR. RYNEVELD: Well, Your Honour, yes. Part of the relevance is that it's -- it is incumbent on us to show as part of the ingredient of the offence that the accused has been on notice, and these documents set out very clearly from 17th of March, 1998 on right through to the, I believe it was the 25th of March or 26th of March, 1999, letters from the ⁹⁸⁷² Prosecutor Louise Arbour, indicating to then President Milosevic that the conduct that has been noted to date causes grave concern that serious violations of international law continue to be committed and then warns the then president of the former republic of Yugoslavia that it was her intention to investigate, cautions that everything must be done to deter the commission of future crimes, looks to Mr. Milosevic to exercise his authority over his subordinates, to exercise his leadership in order to prevent the commission of further crimes and take all necessary steps to punish any of his subordinates who commit serious violations of international humanitarian law in Kosovo.

JUDGE MAY: These are letters written by the Prosecutor.

MR. RYNEVELD: That is correct. That is by Louise Arbour to Mr. Milosevic on the 26th of March, 1999. In other words, part of what we are trying to show is that not only have other international representatives been warning this accused of conduct which is totally unacceptable and may constitute war crimes but the Prosecutor herself warned throughout these proceedings. That is the relevance of this documentation.

JUDGE MAY: All right. We'll consider the matter.

MR. RYNEVELD: Thank you.

[Trial Chamber confers]

JUDGE MAY: We will admit this documentation as part of the record, part of the history of the matter. Yes.

MR. RYNEVELD: Thank you. I would propose very, very briefly, Your Honours, to put each of those documents on the ELMO and just highlight some of the letters, for the convenience of the Court if nothing ⁹⁸⁷³ else.

JUDGE MAY: Yes. Let us do this as expeditiously as possible. Whether we need it on the ELMO is a matter of doubt. Perhaps you could just refer us to the -- we have the documents. Refer us to the important parts.

MR. RYNEVELD: Thank you. And I'll do it through the witness by asking whether he concurs, if I may.

Q. Witness, the first document you have before you is the 17th of March, 1998 letter from the Prosecutor Louise Arbour to then President Milosevic. Would you agree, sir, that in that letter she's advising that she's gathering information to determine if there are grounds to believe that crimes have been committed or are being committed in Kosovo and advises that the Tribunal has authority to prosecute incidents in Kosovo and requests a report by the 25th of March, 1998, regarding names of people killed, injured, arrested, sexually assaulted, deprived of liberty, deported or forcibly transferred from Kosovo? Is that what that letter sets out?

THE INTERPRETER: Could the speakers please slow down. The interpreters cannot keep up.

MR. RYNEVELD: Yes. I've just been cautioned to slow down. That's the danger, of course, in trying to hurry.

Q. Sir, I'd like you to look at the second document, which appears to be dated the 14th of October, 1998, which purports to be a statement from the federal government's meeting, chaired by Prime Minister Momir Bulatovic. Does that document confirm the federal government's support of ⁹⁸⁷⁴ the Milosevic-Holbrooke agreement?

A. Yes, it does.

Q. And does it also set out that it approves the implementation of the Security Council's Resolution 1199 concerning "Observing flights in Kosovo"?

A. Yes, it does.

Q. The third document. This one is dated the 15th of October, 1998. Is that as well a letter from Louise Arbour to then President Milosevic in which, inter alia, she advises she intends to resume investigations into Kosovo at the earliest opportunity and to lead a team of OTP members on an investigative mission, meet with government and other officials, gather evidence, and interview potential witnesses, and seeks assurance that the visas will be provided in response to applications at the FRY embassy in The Hague? Is that what that letter basically sets out?

A. Yes, it does.

Q. The next document, Your Honours, is slightly out of order in the pile that was given to you. I've tried to go chronologically. The next document is actually the fifth in your binder. That is a 4 November 1998 letter from Zoran Knezevic, the then federal Minister of Justice of the FRY to Louise Arbour, Prosecutor of the ICTY.

JUDGE MAY: I'm not sure I have that.

MR. RYNEVELD: You do, but it's in different order, I'm sorry.

JUDGE MAY: Yes. I have it.

MR. RYNEVELD: Thank you.

Q. Now, Mr. Zdrilic, to your knowledge, does this document respond to ⁹⁸⁷⁵ Ms. Arbour's letter of the 15th of October and the FRY gives reasons why it does not accept the ICTY's jurisdiction over events in Kosovo, indicating that it's because there was no war there, and advises that competent state bodies were investigating all crimes committed, and indicates international forensics experts were being invited to assist their experts and of course expresses readiness to continue their cooperation with the Tribunal?

A. That's correct. And it appears in both English and Serbian.

Q. Both English and Serbian. Thank you.

MR. RYNEVELD: Now, Your Honours, the next document would then be document 4 in your -- in the order of materials, and then we'll go in order.

Q. The next document, sir, is dated the 6th of November, 1998. It's a letter from the president of the Tribunal, Gabrielle Kirk McDonald, to Ambassador Peter Burleigh, president of the Security Council of the United Nations in New York. Do you see that document?

A. Yes, I have it before me.

Q. And does this document, in summary, report the continuing refusal of the FRY to cooperate with the Tribunal by failing to issue visas to investigators of the OTP to conduct investigations in Kosovo and advise the position of the FRY not accepting any investigation by the ICTY in Kosovo to be in contravention of the decision of the Security Council? And also does that letter set out that the Prosecutor Louise Arbour had written a letter of the 15th of October, 1998, of her intention to investigate and request visas, and points out that this was the fourth ⁹⁸⁷⁶ time the president had brought instances of non-compliance by the FRY to the attention of the Security Council? Is that a fair summary of that document?

A. Yes, it is.

Q. Next document is also dated the 6th of November, 1998, and that's a letter from Louise Arbour to Zoran Knezevic, again the Minister of Justice of the FRY. That acknowledges receipt of Mr. Knezevic's letter of the 4th of November in response to her correspondence of the 15th of October. She advises that the FRY's non-acceptance of the Tribunal's jurisdiction over Kosovo is not consistent with international law. It sets out the Prosecutor's mandate and jurisdiction and advises that, in light of protracted armed violence in Kosovo, investigations are clearly required, and advises that the issue of jurisdiction is not for a state to determine but for the Tribunal itself formally in court. Is that a reasonable summary of what that document provides, sir?

A. Yes, that's an accurate summary.

Q. Turning to the seventh of 10 documents. The next one is 18th of January, 1999, again a statement from the federal government of the FRY meeting. Does this document denounce what they determine the "groundless, false, and malevolent assertions" on events that took place in Racak? It complains about activities of William Walker and pronounces him to be persona non grata and that he has to leave the Yugoslav territory within 48 hours? This document also reiterates that The Hague Tribunal has no jurisdiction in Kosovo, indicates that representatives of the Tribunal may come into their country to negotiate on the agreement but cannot inspect ⁹⁸⁷⁷ and investigate in Kosovo, and reaffirms readiness to continue cooperation with the KVM and the OSCE.

A. Yes, that's an accurate summary.

Q. Number 8. This is a 2nd of February, 1999 letter from Deputy Prosecutor Graham Blewitt to Zoran Knezevic, the federal Minister of Justice for the FRY. It refers to conversations had with the Prosecutor and forwards a request under Rule 7 bis (B) that the president notify the Security Council of failure by the FRY to comply with its obligations under Article 29 of the Statute, indicates that if the FRY wish to argue the question in open court, the Prosecutor would not oppose such an application, and then attaches the 1 February request by the Prosecutor of the president of the Tribunal. And this --

THE INTERPRETER: Could you please slow down, please, sir.

MR. RYNEVELD: Yes. Sorry again. I will repeat myself.

Q. Attaches the 1st of February request by the Prosecutor to the president of the Tribunal, which appears to be about a 25-page document, court-filed document. Do you see that?

A. Yes, that's all correct.

Q. Two more to go through, if I may. 25th of March, 1999, statement from the FRY government's meeting. This notes a decision by the FRY to sever diplomatic relations with the governments of the United States, Great Britain, France, and Germany for reasons of aggression and use of enormous military and killing potentials. It decides to consider diplomatic and overall relations with other countries that directly or indirectly took part in that aggression, gives credit to those governments ⁹⁸⁷⁸ and countries that expressed support and solidarity with the FRY's people, and then declares the imposition of further taxes to finance defence expenses; is that right?

A. It's an accurate summary.

Q. Finally - and Your Honours, I've already made reference to this in my explanation as to why these are relevant - this is a cover letter from Louise Arbour to Ambassador Grubic of the FRY embassy in The Hague, and I believe this is the 26th of March, 1999. It requests that the attached letters be conveyed urgently to President Milosevic and other listed officials and advises that the letters are being -- that the fact that the letters are being sent is being made public, and then it attaches her 26th of March, 1999 letter to then President Milosevic advising - and there are about eight points here - (A), the FRY's failure to cooperate with her office regarding the investigation of war crimes in Kosovo has been reported by the Tribunal's president to the Security Council of the United Nations; (B), advises that current reports of escalating violence in Kosovo cause grave concern that serious violations of international law continue to be committed; (C), provides as an attachment a copy of the salient portions of the Statute of the International Tribunal in both English and B/C/S lest there be any doubt by Mr. Milosevic as to the relevant law; warns that it is her intention to investigate all serious violations of humanitarian law that merit prosecution in the international forum, particularly those involving attacks on the civilian population; cautions that everything must be done to deter the commission of future crimes; looks to Milosevic to exercise his authority over his ⁹⁸⁷⁹ subordinates, to exercise his leadership in order to prevent the commission of further crimes and take all necessary steps to punish any of his subordinates who commit serious violations of international humanitarian law in Kosovo.

Would that also be a reasonable summary of what is contained in that document, sir?

A. That is an accurate summary and that also is contained in the documents in Serbian, with the attached Articles of the Tribunal.

Q. And you're able to read Serbian as well, are you not, sir?

A. That's correct.

MR. RYNEVELD: Your Honour, those are my questions with respect to that. Might that bundle of documents be marked as an exhibit for its historical value that the Court has permitted its admission.

THE REGISTRAR: Your Honours, that will be marked Prosecutor's Exhibit 315.

MR. RYNEVELD: One --

JUDGE MAY: Mr. Ryneveld, before we go on, normally these clips are in tab form where there are a number of documents referred to, but I see that in this case we do have a number attached to each. So in future, the documents can be referred to by the exhibit number together with the number of the document.

MR. RYNEVELD: We'll certainly keep that in mind. Yes, thank you, Your Honour.

Your Honours, that was intended to be my examination-in-chief of this witness. However, it occurs to me that there is one other area that ⁹⁸⁸⁰ I might ask this witness a couple of questions about in light of the previous witness's evidence on Friday.

Q. Mr. Zdrilic, on Friday, a witness testified with the pseudonym K41, and during cross-examination, that witness was asked if he knew the name of the investigator who took his -- took his statement. He was unable to recall the name of that investigator. Do you happen to know who that was?

A. Yes. That was me. I took the statement of K41.

Q. All right. And could you also indicate, sir, to your knowledge how K41 came to the Tribunal's attention.

A. K41 had approached another person who was -- who had been interviewed by the OTP, approached that person and expressed to him his intention to -- or his willingness to speak to an investigator from the Tribunal. As a result of receiving that information, I then made contact with K41 and obtained his statement.

Q. This other person that K41 approached to indicate that he wanted to make a statement, was that in fact the witness known as K32?

A. That's correct.

MR. RYNEVELD: I have no further questions. Thank you.

JUDGE MAY: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] [No translation]

MR. RYNEVELD: Am I the only one not getting translation?

JUDGE MAY: We're not getting the B/C/S.

THE INTERPRETER: Can you hear the English?

JUDGE MAY: We can hear the English now. ⁹⁸⁸¹ Mr. Milosevic, would you try again, please, and we'll see if we get it this time.

THE ACCUSED: [Interpretation] What I was saying was this: Before I start the cross-examination of Mr. Zdrilic, I should like to object, to raise an objection to this mass of paper, all these documents that have just been launched and pulled out by Mr. Ryneveld and which relate to correspondence between Louise Arbour, letters that she sent to the Yugoslav authorities, the responses she received from them, which have nothing to do with his testimony but they would have to do with the testimony of Louise Arbour, were she to appear here, or some other United Nations representative. And if somebody refers to the United Nations, then that would be it. Or representatives of the Yugoslav authorities, by the same token, who communicated with Mrs. Arbour. And I don't even see any formal or official reason for which Louise Arbour should communicate with a head of state and expects that head of state to supply her with an answer.

And among the documents that have been provided, we see an answer by the ministry -- Minister of Justice, the federal Minister of Justice to boot, who clearly explains and expounds the position of Yugoslavia with respect to this particular institution, and also Yugoslavia's position vis-a-vis the possible crimes, because it speaks about the fact that there is no doubt that any crime committed would be subject to the criminal laws of Yugoslavia.

Therefore, this type of correspondence indicates that Yugoslavia, in keeping with its laws, which are no different from the laws of other ⁹⁸⁸² countries, acts in conformity with them with respect to what is going on on its territory as a sovereign state and does not consider that where he clearly explains there was no war, the inclusion of any kind of illegal or even legal, if it were to exist, legal institution in the -- in deliberations into the subject of war crimes.

So I don't see the connection between the testimony of an investigator, that is to say an employee of this Prosecution, and this huge amount of correspondence which has been provided here. I think that it is absolutely untenable that we now delve into matters of this kind and all these allegations made here, all of which can be refuted one by one. We now have 27 pages of a letter or, rather, a statement or whatever you like to call it, by Louise Arbour, and that is something that is quite outside the frameworks of what you wish to represent here. And if you wish us to discuss this matter, then go ahead and bring in Louise Arbour and hear her as a witness, and then you can also enable me to ask her questions in that regard, because I can't see how I can ask these questions of Mr. Zdrilic pertaining to a letter by Louise Arbour and the stance and positions, of course, untenable which were put forward and which we have nothing to do with. By the same token, you could have asked the usher, the court usher to take the stand and say that he had this kind of letter in his hands. He has nothing to do with those letters, nor is he an interlocutor on the letters of Louise Arbour in my cross-examination. That is the objection and the comments I have to make.

JUDGE MAY: If it's an objection, no doubt you'll want us to rule on it. If it's a mere comment, you shouldn't be making it at this stage. ⁹⁸⁸³ But we take it as an objection.

The point that you make is one which we note. The reason that these documents are admissible through this witness is because he's a representative of the Office of the Prosecutor. He may well be the only one who we've allowed at this stage to be called and, therefore, he is in a position to produce these documents. As you know, we have rules which allow documents to be produced on the grounds that they largely speak for themselves, as these documents do.

So therefore, they are admissible through this witness. You can examine him if you wish to. If you wish to apply for somebody more senior to be called so that you can cross-examine them, we will hear that application. No doubt the Prosecution, too, have heard what you've said about it. But for the moment, these documents are admissible. As I say, they speak for themselves, and this witness can produce them. Yes.

THE ACCUSED: [Interpretation] Mr. May, that's precisely what all this is about, and I don't see how the details of Louise Arbour's letter is something that I could question Mr. Zdrilic about. He didn't write them, nor was he consulted by anyone as to what should be put in those letters. So it is just correspondence between the federal government and Louise Arbour herself.

[Trial Chamber confers]

JUDGE MAY: Mr. Milosevic, you must cross-examine this witness. I have told you why the documents are admissible. If, at the end of cross-examining this witness, there are matters which you wish to put to a ⁹⁸⁸⁴ more senior member of the Office of the Prosecutor which we consider relevant -- and just remember that you're dealing with cross-examination, not argument. If you want to argue with somebody or make points to us, you can do that in due course. But if you've got genuine questions which you want to ask, then we'll consider what better way to deal with this. But meanwhile, if you have any questions of this witness, you should ask them now so that we can get on.

THE ACCUSED: [Interpretation] Very well, Mr. May. I'll begin with the cross-examination of this witness now.

Cross-examined by Mr. Milosevic:

Q. [Interpretation] From your statement, Mr. Zdrilic, we can see that you work as an investigator of the Office of the Prosecutor and that you have been doing so sometime from the end of March 1999 and that, before that, you were for a number of years at different police posts - a policeman, a police officer, a detective and so forth - so your profession is a policeman and you are now working as an investigator; is that correct?

A. That's correct.

Q. I should like you to answer this question: As an investigator, are you duty-bound to gather as truthfully as possible all the facts relevant to the events that you are reporting and investigating, or is it your duty, as you are employed, as you are an employee of the OTP, is it your duty to select the facts in such a way as to endeavour to amass elements which would bear out this false indictment, confirm the false indictment? ⁹⁸⁸⁵

A. That's quite an extensive question you've asked, but certainly as an investigator it would be my role to strive and to work towards establishing the truth of any given incident or events that have occurred, and that's certainly what I've endeavoured to do as an employee of the OTP.

Q. All right. Then try and answer my questions more specifically, in more concrete terms. Taking the example that was mentioned a moment ago by Mr. Ryneveld, Mr. Ryneveld mentioned the example of Witness K41 who testified here, and your name appears in his statement -- on his statement. Now, does the contents of his statement represent, for the most part, contents to -- that is to say, are they answers to questions that you yourself asked him?

A. The statement itself is his statement. Certainly my role there is to assist him to record his information and to record in a chronological and logical way the events that occurred as he tells them to me.

Q. All right. I assume that when you take -- when you took his statement, that it was also part of your job to ask him questions that you considered to be relevant for the collection of facts which relate to the events he describes. Is that correct or not?

A. In part that would be correct. Where he outlines events to me or describes events, then in the course of recording that, I may ask him clarification questions or questions that require answers of greater detail so as to record those within his statement.

Q. All right. Let's take an example. In his statement, for instance, and he was questioned about this -- I don't know why we're ⁹⁸⁸⁶ hearing this interference. But he was questioned about it by the opposite party. And he was speaking about the event that took place in the village of Jeskovo. And on that occasion, he explained that civilians had died there and so on. Is that right?

A. I would need to see his statement again, but from the best of my recollection, yes.

Q. Yes. That brings me to the following point: You are an investigator, and I assume that you gather all the facts related to a particular event. According to my own information and facts, the event in this village of Jeskovo was also attended by the representatives of the Regional Centre of Prizren of the Verification Mission of the OSCE, and it was verified that there were nine terrorists killed in that particular event and that they were wearing uniforms and had weapons on them. And this is very different from what your witness says, Witness K41, whose statement was put forward here.

Now, I'm asking you as it was your official duty as an employee and investigator to learn of the events that took part -- place, and as you had at your disposal members of the Verification Mission, when you have this witness talking about the Jeskovo event, did you ask him questions on the basis of the documents you received from the Verification Mission and which testify to something quite different, completely opposite to what he himself was saying? Yes or no.

A. In response to the last part of your question -- you've actually asked me a lot there: In response to your last part, no, I did not have the benefit of any documentation from the Kosovo Verification Mission of ⁹⁸⁸⁷ the OSCE.

If you would like me to respond to the rest of what you've asked, I can do that as well.

Q. Yes, yes.

JUDGE MAY: If there's something you want to add, Mr. Zdrilic, you can.

THE WITNESS: [Interpretation] Your Honour, I was asked numerous things in the question there --

JUDGE MAY: No. The point which he was making was that there's a discrepancy, he says, between what the OSCE said happened in Jeskovo and what the witness said happened. Now, whether that's right or not is a matter we're going to have to determine when we've looked at all the evidence, and we can't re-litigate it now, but if there's something you'd like to say about your role, of course you can.

THE WITNESS: Thank you, Your Honour. Certainly, in brief, is that I -- any questions that you had in relation to the Kosovo Verification Mission and where they tendered and what reports they made would need to be addressed to someone from that organisation. Specifically in relation to this statement here, is I recorded the information as given to me by this witness. The information that he provided to me in relation to the Jeskovo incident is as recorded in his statement.

MR. MILOSEVIC: [Interpretation]

Q. All right, Mr. Zdrilic. But you must have known that the alleged incident in Jeskovo, at least judging by the date, coincides with the time ⁹⁸⁸⁸ when on that territory the Kosovo Verification Mission was active. In specific terms, that part of the territory was under the Regional Centre in Prizren, and that was led by General Maisonneuve. So you must have been aware of that fact. You must have known about that. Is that right or not?

A. Undoubtedly so. I certainly was aware of the presence, that they had an active presence in the region of Kosovo in that time.

Q. Well, fine. And that's why I'm asking you. Now, if you were fulfilling your role of investigator conscientiously, with the aim of gathering information and facts and reports relevant to what you were dealing in, what you were investigating, do you consider it to be your duty to hear or gather information from that centre, the -- which relates to their own work, their own competence about the same event that you are taking a statement from a Witness about? Yes or no.

A. That would be correct. If it was an incident or an area of investigation on which -- on which we were focused, and an example, of course, would be incidents as mentioned in the indictment, and that was mentioned by a witness and he offered a line of inquiry to corroborate or to obtain further information, or a line of inquiry which I knew that I could obtain further information, then I would pursue that line of inquiry.

Q. All right. Do you then deny that you knew that during the events the Verification Mission was there and that therefore --

JUDGE MAY: He's dealt with this. He's dealt with this. Now, there's no point arguing with the witness about what you say are ⁹⁸⁸⁹ discrepancies. He's told you his job was, and what he did was, to take the statement from the witness who we heard from, and he's described that. Now, you make a point that there was a discrepancy, and he's given an answer. Now, we cannot waste further time arguing about whether he knew or didn't know and whether it was relevant or not. He's answered you.

THE ACCUSED: [Interpretation] Mr. May, I am trying to ascertain here the way in which an investigator conducts -- does his job, because we don't challenge the fact that this investigator knew of the existence of the Verification Mission, so my question to him is why he failed in investigating the event getting from the Verification Mission reports which are quite certainly relevant. So why didn't he collect up that information and the facts and compare them to what he was talking about and investigating? May we then conclude that he wasn't performing his job the way in which he should have been?

JUDGE MAY: No. We'll allow the witness to answer that final contention and then we'll move on to something else. Mr. Zdrilic, do you think you can answer that question, the final point that's made?

THE WITNESS: Certainly, Your Honour. In short, seeing that we're specifically dealing with K41 and the time frame in which that statement was taken, that you will notice that it was taken not so long ago, that it was quite a short time ago. And then the -- speaking to that witness, even if I wanted to pursue further inquiries as a result of taking that statement, time certainly would not have allowed for that to have occurred. ⁹⁸⁹⁰ You will notice from earlier statements that I've taken, in early 1999 and certainly in 2000, where information has arisen in the taking of a statement, then of course we have pursued that line of inquiry.

MR. MILOSEVIC: [Interpretation]

Q. All right. Tell me, then, Mr. Zdrilic, in view of the fact that in your statement it says that from the 28th of March, 1999 you were working in the OTP as an investigator, did you have occasion to talk to, in view of the fact that you investigated the area, to talk to General Maisonneuve himself, who was the head of the Regional Centre in Pristina? Did you ever talk to him?

A. I have had cause to speak to members of the KVM, but General Maisonneuve was not one that I'd spoken to personally. So no.

Q. And did you talk to, as the Regional Centre was a large centre in Prizren, did you talk to anybody else, any other member? Because there was Pyoter Snetovkovski [phoen] there from Poland, for instance, and you had Osman Haakinem [phoen] from Finland, Andre Barodjin [phoen] from Russia, Antonio Lamusta [phoen] and Roberto Brunetti from Italy. Did you talk to any of those representatives who made up the team, General Maisonneuve's team in the area? Did you talk to any one of them and -- in the desire to establish some facts relevant to the job in hand that you were doing?

A. In answer to the question whether I personally spoke to any of the persons you've mentioned, the answer would be no. But as to whether colleagues of mine had spoken to those very same persons, for the same reasons that you've outlined, then the answer would be yes. ⁹⁸⁹¹

Q. Well, how come, then, their activities had no bearing and no place in your activity when you were engaged in taking a statement from a witness talking about an event that they verified in their course of duty and recorded and wrote down and could tell you something about that?

A. It's certainly not the case that an investigator would live in his own shell; that if I take a statement, then that is made available to and would be reviewed by my colleagues, certainly those working in the areas to which that statement is relevant. And in the same way, that if a colleague of mine was to take a statement from a person relevant to the area of operation where I was working, then I would make myself familiar with that statement and what it contained.

Q. Fine, Mr. Zdrilic. But if, for example -- let's take an example with respect to Jeskovo. There is a report by the Verification Mission which says that nine terrorists were killed, for instance.

JUDGE MAY: I'm going to find a reference to this to check out what you say. What is the reference, Mr. Milosevic, in the report to this allegation which you make? If you don't have it, you can let us have it tomorrow, but we need the reference.

THE ACCUSED: [Interpretation] Mr. May, I take it that the opposing party, including all its employees and staff, must consult the report of the OSCE mission in the regular course of its duties.

JUDGE MAY: Just give us the reference. That's all I'm asking for. Give us the reference and we'll check it out. You may well be right, for all I know. But there doesn't seem any point going on arguing about the -- with this witness about it. Listen for a moment. ⁹⁸⁹² The duty of a Prosecution is to put in front of the Court all the available information. If they have a witness who gives important evidence, then it's their duty to put that evidence before the Court in the form in which it is. It's not their duty to change the evidence or anything of the sort.

If there's evidence which contradicts what the witness says, as you allege in this case, then it's their duty to put that information before the Court, as they have done. They've provided you and the Court with this document from the OSCE.

Now, what happens next is that during the course of the trial, you are able, as you have done, to put the discrepancy, as you allege, to the witness. You can then refer us to it in due course in argument when we come to consider the witness's evidence and the totality of the evidence, but there is no point going on arguing with an investigator about it. No doubt you want to make the point over and over again, but there's no point and you won't be allowed to.

Now, unless you've got something new for this witness, we're not going on with this particular line of cross-examination. We will have from you, please, the reference to the Jeskovo incident, or if you don't give it to us, we will have to assume that it doesn't exist. That will be relevant, of course, when we come to consider all the evidence, but there's no point -- the witness has told you what he did. He's told you the inquiries which he carried out. And I've explained to you what the duties are vis-a-vis the Court and what the Court's duties are. Now, I don't think there's really much point going on unless you've got something ⁹⁸⁹³ new. Is there anything else you want to ask the witness? We will see about the correspondence if you want to ask anything about it. Mr. Nice, I don't know if you -- or Mr. Ryneveld, I'm sorry. Mr. Ryneveld, you've heard the argument about the correspondence. The accused may well have a point. There's not much point asking this particular witness about the correspondence in which he wasn't involved. It may be the sensible course would be to tender somebody of seniority.

MR. RYNEVELD: If -- that microphone is not working.

JUDGE MAY: It was working. I had my finger on it.

MR. RYNEVELD: Yes, Your Honour. Our view is, of course, that this documentation was part of the original supporting materials. It's been in the accused's possession for I don't know how long. Obviously since the indictment back in 1999. It's been available since then. Our point is simply that it's relevant, it's before the Court. If in the course of perhaps the continuation of our case it becomes necessary, we may seek leave of the Court to ask a more senior official to speak to those documents. But with respect to the Kosovo part of the case, of course, that would have to be an application for special leave by us in order to produce someone.

JUDGE MAY: Well, we may well order that that be done.

MR. RYNEVELD: Thank you, Your Honour.

JUDGE MAY: Now, Mr. Milosevic, do you have anything else for this particular witness about the evidence which he gave?

THE ACCUSED: [Interpretation] I have just started, Mr. May, and I think that we are wasting time, it seems to me, because many other things ⁹⁸⁹⁴ have been introduced here, many things which are not actually contained in his statement. Nevertheless, I shall go on.

Q. I just wanted to establish whether it was normal -- actually, I'm talking about an investigator, his duties, the way he carries them out, the way he works, because that is important for assessing the value of what is obtained here. Was it reasonable to assume that in terms of Witness K41, in view of the information that exists and the knowledge that exists with regard to that, were you duty-bound to put questions to him pertaining to that particular knowledge that was available?

A. Certainly the case would be, when asking clarification questions to a witness and obtaining a statement, then yes, I would draw from my own knowledge of the events that he's discussing.

Q. So this knowledge that I refer to just now is something that you did not bear in mind or, rather, you did not know about it. It was not available to you.

THE INTERPRETER: Microphone for Judge May, please. Your microphone, sir.

JUDGE MAY: If you've got some other matter you want to address, you can, but we're not going over this point which we've canvassed thoroughly.

THE ACCUSED: [Interpretation] All right.

MR. MILOSEVIC: [Interpretation]

Q. In your statement, already in the second paragraph, you say that what you did included several missions of yours in Albania in 1999, and you say there: "I spoke to numerous persons relevant to the Kosovo ⁹⁸⁹⁵ investigation, numerous displaced persons."

Here we heard the testimony of a journalist, Jacky Rowland, only recently, and she showed in her report that what they said in Albania is considerably different from Kosovo reality. Did you bear that in mind or not? Or did you just take for granted anything anyone would say to you when you interviewed them in Albania?

A. Certainly when interviewing a person, that once -- while there in front of the person, there is really no way of confirming the information being given to you. Rather, that you interview that person as effectively and professionally as you can, obtaining their information and recording that in the way of a statement. Upon having taken that statement, and at a later stage, what you strive to do then is confirm the information. Certainly any statements that I've been involved in that were taken in Albania and were then later used or relied upon, those statements were certainly confirmed by other information.

Q. All right. I'm talking about differences, you are talking about confirmations and affirmations, and that's only logical because you have the role of witness here and also employee of the OTP. Tell me, since you're already referring to this killing of the Berisha family in Suva Reka, did you have any information as to Marjan Krasniqi's testimony, Witness Marjan Krasniqi's testimony, who says that this killing in Suva Reka was committed by some local crime group or do you not have that information? And that is what is indicated.

A. In answer to your question, Marjan Krasniqi, which I believe is the name you're saying, the -- from the best of my recollection, I in fact ⁹⁸⁹⁶ took his statement, Mr. Krasniqi. And if I recall correctly, I took his statement in Albania in 1999.

As to whether he asserts that a local crime group were the instigators of the incident, that I don't recall, but I'd be happy to review the statement if it was handed to me, then maybe I could answer that a bit better for you. But I don't have an independent recollection of him saying that a local crime group committed the offence.

Q. All right. All right, Mr. Zdrilic, let us move on. Let us look at these questions.

In your statement, practically the bulk of your statement pertains to individual investigations, designations, and expert examinations, forensic examinations in the field of medicine. That is what you've been referring to, right?

A. Mr. Milosevic, I wouldn't have exactly worded it that way, but I think what I've done in my statement is to summarise the results of such persons, persons with medical or forensic expertise, have reviewed those results and summarised them in a plain English fashion in my statement.

Q. All right. Regardless of whether they are in plain English language or not, these are undoubtedly analyses that you're not an expert for and neither am I; is that right?

A. I would tend to think I have possibly more expertise than yourself, Mr. Milosevic, but I would agree that I'm not an expert at physically doing DNA comparisons myself.

Q. All right. And doesn't it seem to you that such a long portion of this text about DNA and comparisons and figures, about that and the expert ⁹⁸⁹⁷ work conducted by the teams that you are referring to, does push into the background some of the previous questions that I assume a policeman, an investigator, would have to have answers to first and foremost and only then can he follow up with DNA analyses and things like that. Isn't that right?

A. Yes, I would agree with that. Yes.

Q. Could you please then tell me whether you have a clear answer in response to the question how these people had lost their lives?

A. It is certainly a belief of mine that the people referred to as being the victims of the Suva Reka cafe incident, as outlined in the schedule of the indictment, were murdered both in two locations; at the house and within the cafe, and they were murdered by Serbian police in cold blood. That is certainly my assertion from the investigations that I've conducted in relation to this incident from 1999 until the present day, and ongoing, of course.

Q. All right. You say that you believe that it is so.

A. Most certainly.

Q. And do you have proof of that? And do you have an answer to the question as to which circumstances were involved when these persons lost their lives? Under which circumstances did they lose their lives?

JUDGE MAY: I'm going to stop you because this is what we've got to determine. It is precisely the question that we've got to determine. The witness's beliefs or views about it don't matter, with respect to him, because it's ultimately what we determine on the evidence which is put before us which matters. ⁹⁸⁹⁸ And there's a more general point I want to put to you because it recurs throughout the case, and since you're in person, it should be explained again because it's not always easy to grasp. When you have arguments about the evidence such as the one you're going to launch into with this witness, no doubt, about what happened in Suva Reka, those are arguments which should be addressed to us. And as I've told you before, there will be a time to do that. All the witness can do is tell you what he did himself. His opinion about the -- that evidence doesn't matter. The fact that he considers there is a case on a particular point doesn't matter, and the weight which he would give to the evidence which maybe you're going to ask him about. So all of this is not for the witness to deal with. It's a matter for argument and not a matter for questioning the witness about how he would prove a particular case. Now, as I say, you will have your opportunity to address us on all these points, but meanwhile, you must cross-examine this witness on what he did, not on what his beliefs or views may be.

THE ACCUSED: [Interpretation] I am endeavouring to put questions to him with regard to what he did, Mr. May, not anything else.

MR. MILOSEVIC: [Interpretation]

Q. Did I understand this correctly, Mr. Zdrilic, this expert work, professional work done by the forensic experts pertains to the mortal remains that were placed at their disposal, that were made available to them? That is one element. The other element is the following: All analyses pertained to and were done after June 2001; is that correct? Is that what comes out of your statement, report? ⁹⁸⁹⁹

A. I just require clarification for your question in relation to the forensic work. Are we talking about the forensic work as mentioned in my statement, the exhumations that occurred in Kosovo in 1999 and 2000, or are we referring to the DNA analysis being conducted in Spain? I'm not quite sure which one you're referring to or which one you're asking me about.

Q. I'm talking everything that you're talking about in your statement, Mr. Zdrilic. Do you have an answer to the question where these corpses were found, where they were exhumed?

A. Again, Mr. Milosevic, your question's not very clear. I presume we're talking about all the bodies. In answer to that, then, there were a number of bodies that were recovered from Suva Reka as a result of exhumations conducted in 1999 that was conducted by the British forensic team working on behalf of the OTP and upon its direction. Those remains were subsequently identified by relatives. And they are denoted in the charts which I prepared for the Court, and they were denoted with a star. The remainder of the bodies, without going through the whole course of where they went and whether they were buried and exhumed and so forth, it would appear to us that the final resting place of at least a number of the bodies is within the 13th of May SAJ training facility in Batajnica, near Serbia, and that those bodies found were located in the first exhumation conducted there, which was referred to as Batajnica 1. Now, by taking those -- by taking samples from those remains and comparing them - or bone samples - and comparing them to blood stains taken from known living relatives, to date there are 11 persons identified ⁹⁹⁰⁰ who are believed to have been victims of the Suva Reka cafe incident and whose bodies have now been located in Batajnica.

Q. All right, Mr. Zdrilic. Now you gave part of that answer. So to -- how many persons, dead persons, does your report or your statement refer to?

A. The statement before us -- this statement we're talking about here, there's -- all I've done is summarise the results mentioned. So within the body of the statement, it refers to 11 persons, but within the entire statement itself, it outlines all persons who were believed to have been the victims of the Suva Reka cafe incident as they are named within the charts themselves which were attached to the statement.

Q. So your testimony pertains to 11 persons. And you mentioned just now that some of these corpses were exhumed in Batajnica. When were they exhumed in Batajnica?

A. I couldn't give you a precise date, but I do know that that evidence has been presented before the Court. But the -- but to give you a brief answer, it was last year these bodies were exhumed from Batajnica.

Q. And when did the exhumation at Batajnica start?

A. Again, it's -- there is information before the Court. The precise date I do not recall, but it certainly, again, was last year. Throughout the warmer months of 2001, the exhumation was commenced and completed at Batajnica 1.

Q. All right. Am I right if, on the basis of what I've read out just now, I can conclude that forensic experts cannot tell when these bodies were brought to Batajnica, for example, how long they had been there in ⁹⁹⁰¹ Batajnica?

A. Those opinions would certainly be -- be questions for those who examined those bodies. That would be someone from the Belgrade forensic institute as it is my understanding that they conducted the exhumations of the remains that were exhumed from Batajnica 1. So certainly an expert from the institute would be better asked such questions.

Q. Well, this is more of a police question than a forensic question, because, to the best of my understanding, they can establish the length of time from when the death occurred in the case of a body that was found. However, I'm asking you because you are more of an expert in these matters than I am, as you had put it yourself.

Could they establish through any method whatsoever when these bodies were actually brought to Batajnica?

A. Appreciating the investigative techniques may be slightly different in our respective countries, but certainly an investigator could establish, or at least gather information leading towards establishing, when certain bodies were located in a location, for example, Batajnica 1. But an investigator would establish that information through the interviewing of witnesses, through obtaining information, possibly establishing or speaking to the person who was present when the bodies were buried or speaking to the person who conveyed the bodies there. So of course, Mr. Milosevic, I can only answer you in hypotheticals. That isn't something that is outlined in my statement. It is certainly something that would be a line of inquiry for an investigative team to pursue. ⁹⁹⁰²

Q. I understand, Mr. Zdrilic, but you're the one who is testifying, so I wanted to establish what you know about this for sure. Because -- or, rather, would you agree that it is very important to establish when these bodies were buried at Batajnica?

A. I don't know that I would necessarily agree, no. The -- whereas the information is obtained that these persons were -- died in March of 1999 and then were exhumed from a grave in Batajnica, Serbia, in 2001, to establish an exact date of when those persons were buried there, then no, I wouldn't agree. I don't see that that is of overwhelming relevance. Certainly no -- certainly not more important than establishing, for example, the identity of the bodies or establishing the cause of death of the bodies. Your question would probably come third or fourth in priorities of investigative priority.

Q. I agree that that question would probably come third or fourth, provided that you do remember that I asked you a few minutes ago how these persons lost their lives, under which circumstances, and then Mr. May said to me that that was up to them to decide on that and that you cannot assess it. So now I'm asking you these questions that come third or fourth because I assume that you are in a position to answer those questions as you were involved in those matters. So you do not know -- on the basis of what you analysed, you do not know when these bodies were brought to Batajnica.

A. No. I certainly couldn't tell you when they were taken to Batajnica. I could review the information that we have in-house and narrow down a time frame for you as to when it is. ⁹⁹⁰³ As I indicated earlier, that I've been involved in the investigations since at least March of 1999 and until the present day, and - as I said before - and that investigation is still ongoing. So what you have before you is the product of our -- is the product and result of our inquiries to date. There is still more to come.

Q. All right. Did I understand this correctly, that these bodies had first been buried at a particular location, then exhumed and subsequently brought to Batajnica? Or were they perhaps thrown into the Danube first and then taken out of the Danube and then taken to Batajnica? Can you at least describe the fate of these bodies that you are reporting about? What actually happened to these bodies?

A. Certainly in brief it is outlined in my statement, but to my belief and as a result of my inquiries, it is certainly my belief that these bodies were, once murdered within the cafe in Suva Reka, were loaded onto a truck. That truck was driven to a location which was referred to as the firing range, which was a disused VJ firing range. And that location falls between the villages of Korisa and Ljubizda in the municipality of Prizren. I certainly believe that those bodies were buried there. It is certainly know that persons attended that location and exhumed a large number of bodies from that location and loaded them onto a truck. It is also known that the bodies of persons murdered in the Suva Reka cafe were subsequently located in Batajnica 1 on the outskirts of Belgrade.

Q. All right. Do you remember, perhaps, because here in your statement you mention in the penultimate paragraph that the bodies were ⁹⁹⁰⁴ taken out of the ground by a bulldozer and the cleaners personally boarded -- loaded them onto buses. And then in parentheses, it says "statement of witness Ali Gjogaj." I'm just quoting your statement. Did you take Ali Gjogaj's statement yourself?

A. I'm certainly familiar with his statement, but no, I don't believe I took it. I believe his statement was taken by a colleague.

Q. All right, and do you remember Ali Gjogaj's testimony?

A. Unfortunately, I don't. I didn't see his testimony because I was out of the country at the time.

Q. All right. And do you remember that there was a problem there concerning dates and that Ali Gjogaj first claimed that this exhumation from the firing range took place in the spring of 2000?

A. I really don't see how you expect me to answer that. As I say, I'm not familiar with his testimony so I can't help you any further with the testimony of Ali Gjogaj.

Q. All right. Did you look into the possibility, Mr. Zdrilic, of these bodies having been transferred a few months before they were discovered in Batajnica rather than in 1999? Did you look into that possibility at all?

A. Bearing in mind there's certain things I can't discuss in view of ongoing investigations that we are conducting, Mr. Milosevic, there are numerous possibilities that we would consider and we would continue to consider and continue to have them in our minds until such time as we eliminate them. That, of course, would be a possibility, that they were transferred to Batajnica a short time before they were discovered. In ⁹⁹⁰⁵ fact, that's certainly the case; there's no knowing how many times these bodies may have been transferred.

What is known, as I expressed to you, was that the bodies were buried at the location which I referred to as the firing range, and what is known is that at least nine, to date, of those bodies have now been identified from Batajnica 1 on the outskirts of Belgrade. They're what's known are known, we're still filling in the gaps and we'll continue to do that and we'll narrow it down further.

JUDGE MAY: We are going to adjourn now. Mr. Milosevic, you've had the same time as the Prosecution. We will allow you -- since your cross-examining, a certain amount of time was taken up with legal argument, we will allow you another quarter of an hour with this witness, if you require it.

THE ACCUSED: [Interpretation] That is insufficient, Mr. May, highly insufficient.

JUDGE MAY: Twenty minutes. We will adjourn.

--- Recess taken at 10.30 a.m.

--- On resuming at 10.55 a.m.

JUDGE MAY: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. As far as I was able to understand, it is possible that the bodies were brought to Batajnica a relatively short time prior to their being dug up there. Is that right, Mr. Zdrilic?

A. That would be a possibility, but certainly in my view that would be highly unlikely. ⁹⁹⁰⁶

Q. Well, all right. And would it be unlikely even if the motive were that evidence and proof should be fabricated to show that the authorities wanted to hide crimes by allegedly transporting bodies from Kosovo to other parts of Serbia?

A. As to whether the authorities were attempting to fabricate evidence is something that I really couldn't give an opinion on, but as I said to you, it would seem to date, at the stage that our investigations are at, that it's highly unlikely that these bodies were transferred to Batajnica a short time before but, rather, a considerable amount of time before. That would further be highlighted by the condition and the circumstances of the area where the exhumation was undertaken. It's certainly an area which was well overgrown, well -- if I could put it this way: It wasn't an area which was freshly disturbed, so that in itself would indicate that that grave or that mass grave had been there for some time.

Q. For some time if you include the overgrowth, et cetera. Would it be sufficient from October to November 2000 up until May, June, 2001, which means the whole of the autumn and winter and practically a part of spring as well? That would be quite sufficient for what you are describing now, wouldn't that be so? Yes or no.

A. It may be so, yes. The question would be better asked of someone who was engaged in the actual exhumation itself and someone who has expertise of the terrain in the area in which we're talking about.

Q. Well, let us assume that everything is documented by photographs before the exhumation began, that the location, the spot was photographed ⁹⁹⁰⁷ so as to be able to establish, at least to a certain extent, what it was all about. Do you know anything about that?

A. As far as I know, the photographs relating to the exhumation of Batajnica 1 have been made available to this Court. And yes, you are correct, that by reviewing those photographs, then you would have a visual depiction of that area prior to exhumation.

Q. All right. The witness who towards the end of last week was here and answered questions, a question in particular put to him by one of the gentleman in the Trial Chamber, I think his name was Stijovic, they asked him in passing or, rather, he said that there was a burial site dug up in Kosovo, and he was asked what was done, and he said that the identification of the bodies had taken place and that the bodies were handed over to the families.

Now, tell me this: If it wasn't the way I put it, how would it be possible that that same police force, when it digs up a body, identifies it and then hands it over to the family once this had been conducted and then suddenly this same police force, these same policemen, or what you refer to as Serbian forces, dig them up and take them to their own backyard to bury them there? Does that seem to you be logical, to a professional policeman such as yourself?

JUDGE MAY: Mr. Zdrilic, if you can't answer the question, just say so.

THE WITNESS: The entire first part of that, Your Honour, I couldn't answer. The last question, "Does that seem logical to a professional policeman?" Then no, that would not seem logical at all. ⁹⁹⁰⁸

MR. MILOSEVIC: [Interpretation]

Q. All right. Let's just deal, as I have very little time at my disposal, for a moment with something very briefly. How do you conduct the identification process when you don't perform a DNA analysis? How is it done then?

A. If we're referring to identifications which are conducted in Kosovo itself, then identification can be done by a number of means. Naturally, a presumptive identification can be done from information obtained from -- from inquiries, from investigations being conducted. And then upon exhumation, a physical identification can be done using family members to identify those bodies. That form of identification was certainly possible in the exhumation process which was undertaken in 1999.

Q. Yes, but when the exhumation in 2001 was conducted, that certainly wasn't possible.

A. There was no exhumations -- and I may be corrected here, but there was no exhumations undertaken by the OTP within the area of Kosovo in 2001.

Q. And tell me, is it possible, is it sufficient for identification purposes for you to find certain personal ID documents, parts of clothing, et cetera? Is that sufficient to identify somebody; documents, bits of clothing, et cetera?

A. In itself, that solely, then no, that would be insufficient to give a positive identification.

Q. All right. And tell me this: Is it possible to conduct an identification process by looking at the bodies after the time lapse such ⁹⁹⁰⁹ as went by with the bodies that you are testifying about?

A. By physically looking at the bodies, then it may be possible but it would be highly unlikely.

Q. All right. Now, did you take samples of DNA for analysis of the 11 bodies dug up at Prizren?

A. You would have to clarify for me what 11 bodies we're referring to.

Q. Well, somewhere in the report mention is made of a certain number of bodies that were dug up nearby Prizren, 11 as far as I was able to understand. Did you take DNA samples from them or is it just what you described, were those the only cases in which DNA samples were taken or samples for DNA analysis?

A. To assist the Court, I think you're referring to within the statement I mentioned an examination of the site referred to as the firing range in the municipality of Prizren, between the villages of Korisa and Ljubizda, that there was a large number of artefacts located. Those artefacts were identification documents, clothing, shoes and other such items. Of those artefacts, there were some 11 artefacts which -- somewhere in the vicinity of 11 artefacts which were identified by family members as belonging to persons believed to have been victims of the Suva Reka cafe incident in March 1999. So the number 11 which I think you're referring to is a reference to the artefacts which were identified from that exhumation in 1999.

Q. And can this be checked out? Can you check out the objectivity of the laboratory involved or performing the DNA analysis? Is there any way ⁹⁹¹⁰ you can do that?

A. We're now referring to the objectivity of the Madrid labs in Spain; is that correct?

Q. Any. I'm asking a question of principle. Can you check out the objectivity of the work of any laboratory in view of the fact that DNA analysis is performed in it? Can you do that for any laboratory?

A. Well, it certainly can be checked in as far as their results. And the summary and the conclusions that they draw from those results, that can certainly be checked. So the answer is yes, you could check the objectivity.

Q. And were double samples taken for the DNA analysis?

A. I'm not certain how many samples were taken. The -- again, that would be a question for the forensic institute in Belgrade as to how many samples they took. What I am aware is that there was a set of the samples conveyed by a member of the institute in Belgrade to the institute in Madrid in Spain.

Q. All right. Is -- can the samples for analysis be contaminated? For example, in the Glodjani case where they said that analysis was impossible because of the contamination involved?

A. I think you've answered your own question. Is it possible that samples could be contaminated in a case? Then, yes, of course. Were samples contaminated in this instance? Again, that would be a question for the forensic institute in Belgrade, although, I would consider that highly unlikely in as far as I consider the institute and having seen the work that they conduct and the way in which they conduct themselves as ⁹⁹¹¹ being a highly professional institute in what they do. Now, I have no reason to believe that there was any contamination in the samples that were provided to the Madrid institute in Spain.

Q. No, I'm not expressing any doubts with respect to the institute in Belgrade. I'm asking you a question of principle with respect to that, and I do believe that they were very professional and conscientious in the work they did. What I'm dealing with now is the institute in Madrid. Because of the way in which the DNA samples were stored, can there have been any failing there?

A. Again, my answer would be similar. I have no reason -- no reason to believe that -- that the institute in Madrid are any less professional than the institute in Belgrade. And I would be assured -- or again, I have no reason to believe that the samples have been contaminated in any way.

Q. All right. Could you explain this to me now, please, what this other report says about genetic identification of the bodies found in the Batajnica 1 locality. It is on page 8. It is chapter 6, your results and conclusions, in fact. Now, I'm not quite clear on this, so I'd like to hear your explanations, because you state that the samples, the bones, et cetera, are assigned numbers. There are numbers. They are numbered. And you saw the multilocus SDR profile, and then you have the number and you say this indicates that the two bone samples were probably from one and the same person, so this indicates that they came from the same person. Then the next sentence goes on to say: "However, we cannot exclude the possibility of them being derived from a certain Besik Shaban ⁹⁹¹² [as interpreted], the biological father," et cetera. So the results indicate that they come from one and the same person although you cannot exclude that they originate from somebody else. So what holds more water, if I can put it that way, the first statement or the second statement, that they do in fact come from one and the same person or that you cannot exclude the fact that they came from two different people, that is to say they belong to someone else? Which of those would you give preference to?

A. Just in way of clarification, it's not a case of giving preference because certainly they go hand-in-hand. What the conclusions there are saying is that they have received bone samples which were numbered BA22 and BA59. As a result of the DNA examinations that they've done, establishing the DNA profile, the profile of those two samples is that they determined that those two samples, BA22 and BA59 came from the same individual. So that's one of their conclusions. Those two bone samples come from the same individual.

Going further from that, they're also saying that those bone samples from the same individuals cannot be excluded as being Vesel Shaban, clearly a reference to Vesel Shaban Berisha which we see in the family chart that I prepared, JZ-1, who is the biological father of Kuci (Vesel) Dasurije, also who can be seen from the first chart. So if I take you back to the first chart, JZ-1, you will see that at the top of that chart, the head of that family is Vesel Shaban, 61 years old. A cross next to his name, denoting a person believed to have been killed in the incident, the cafe incident in Suva Reka, that that ⁹⁹¹³ person -- that two bone samples have been examined and found to be one and the same person. Those bone samples have then been identified through DNA comparison as being the biological father of Dasurije Kuci, who is the person to the far right of that same chart, who is the daughter of Vesel Shaban and Sofia.

So what they're doing is twofold: One, saying that we have two bone samples that are one and the same person; and two, we're identifying that -- those bone samples as being the biological father of Dasurije Kuci.

I hope that makes it clear.

Q. Is that your explanation? If we skip one point and go on to the next one where it says BA29, 37, et cetera, indicates that these two samples should come from the same person but we cannot exclude the possibility, et cetera, et cetera. Is that -- do you have the same explanation for that particular case as you did for the one just now?

A. A very similar explanation. BA29 and BA37, as you've rightly pointed out, have, yes, been identified by DNA that as being from the same individual. And then that individual has been identified as being two things: As being, one, the biological daughter of Vesel Shaban Berisha; and two, also the biological daughter of Sofia Berisha, which is the point you skipped, her identification. It was the point in between. So we have the two heads of the family, or the people at the head of this family free, Vesel and Sofia, both being identified as being the biological parents of Dasurije Kuci; and then from that identification, Fatmire, their daughter, has been identified as the biological daughter of ⁹⁹¹⁴ both those persons.

Q. All right. On page 2, on the second page here, at the top and at the bottom, you have two points in which it says that it is excluded that there is any connection between the individuals listed here. So what is claimed in this analysis? How many individuals do you actually have? Where is the link found, with how many of them?

A. You may need to re-ask that question. I'm not very clear what you're after.

Q. Where was the definite link established? On page 9, at the top of the page, we don't have any numbers we just have squares indicating the individual paragraphs, so on page 9, at the top, it says: "It is, however, excluded that the person from whom this sample stems," and then at the bottom it says, "it excludes this individual," et cetera. So where was the link found? With how many individuals on the basis of the analysis conducted? Where did you find positive links, with how many?

A. I'm not exactly seeing what you're referring to, but in answer to your question, as a result of DNA comparisons conducted by the Madrid institute in Spain, in total to date, 11 persons have been identified by DNA comparison as 11 persons who are believed to have been victims of the Suva Reka cafe incident in March 1999. Eleven persons have been identified that their remains have been located at the Batajnica 1 exhumation site.

Q. Now, tell me this in view of the fact that you're a policeman yourself: Without a doubt, these people were dead, and without a doubt ⁹⁹¹⁵ several of them were identified. Now, does this in any way -- can this any way be used as evidence to answer the question as to who killed them, under which circumstances, when, what the motives were, et cetera, et cetera?

JUDGE MAY: Mr. Milosevic, we're now going back to the old point, and there's no need for the witness to answer that. The answer is obvious.

You've now had an hour and ten minutes cross-examining this witness, which is more than enough, much more than the time which really should have been spent. You can ask one more question of him.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Zdrilic, you are well acquainted with the localities in which the Serbs were killed, massacred, burnt, and so on. Your institution, your service, your profession or whatever, or your colleagues, did they conduct an investigation and identification in the same way you did with these 11 individuals in the cases where the victims of the crimes were without a doubt Serbs?

A. Most certainly, Mr. Milosevic. Conducting the investigation as part of the OTP, certainly our goal was to investigate incidents which were bridges of humanitarian law whomever the victims were and whoever the alleged perpetrators were. So without prejudice or favour is that we worked in the area of, initially, in Albania, as we discussed, and then within the area of Kosovo and anywhere else that our investigations led, to gather evidence of -- of incidents, alleged incidents that occurred within the region of Kosovo within the time frame we were looking. ⁹⁹¹⁶

Q. Yes. But what I'm asking you is this: Do you have a similar report, along with all the DNA and all the rest of it, because I have in mind over 1.500 Serbs who disappeared. Many of them are assumed to have been killed, hidden somewhere, and so on. So do you have similar analyses which would indicate investigations into the deaths of these Serbs who had disappeared or ones that were casualties in any way and were dug up from various locations throughout this campaign in Kosovo? Do you have similar reports on that?

A. I personally don't but I am certainly aware that the OTP is conducting investigations along the same lines that you're asking about, and personally I know that I have gathered information which would be relevant to such things. And if I'm called upon to testify about those matters before this institution, then I will.

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] Mr. May, may we just clarify one point? All right, I know you're not going to let me ask any more questions although I do have another 30-odd questions here - I would have - but that's not important. I'd just like to clear up one matter with respect to all this mass of material that Mr. Ryneveld has supplied. Now, I think that there was a question that somebody from a higher level should be questioned here and examined with respect to all these documents. Now, I'd like to make this more specific: If we're dealing with letters, the letters of Louise Arbour, then there's no question of a higher level of any kind, it is -- I would have to have Louise Arbour. If we're talking about the Minister of Justice of Yugoslavia, then it is the ⁹⁹¹⁷ Minister of Justice himself, not anybody else. So these are questions -- these are all matters in which I can examine only the signatories of these documents, and they're the ones I mentioned.

And another matter: You said that John Zdrilic, Mr. May, was the only officer or employee of this so-called OTP, the Prosecution, whereas many staff have testified here; Fred Abrahams, Mr. Baccard to name a few, Paul [as interpreted] and so on, a series of others, all employees of the OTP.

JUDGE MAY: I'm going to interrupt you. It's true that these, most of them, were former employees, it's right that one or two current ones have, but it's quite appropriate that this witness could produce the correspondence. As for the matter as to the appropriate witness who should be produced for cross-examination, that is something which we will consider.

Now, have the amicus any questions?

MR. WLADIMIROFF: No issues left, Your Honour.

JUDGE MAY: Mr. Ryneveld.

MR. RYNEVELD: Very briefly, Your Honours. Just a couple of matters for clarification.

Re-examined by Mr. Ryneveld:

Q. During one of the questions in cross-examination, Mr. Zdrilic, you were asked about the possibility of authorities perhaps fabricating evidence. What -- and you responded you didn't know. What authorities did you have in mind when the accused asked that question that prompted your response? ⁹⁹¹⁸

A. The authorities clearly were referring to, being the exhumations being conducted within Serbia, that the authorities would be the authorities of Republic of Serbia and the Federal Republic of Yugoslavia.

Q. In that answer, did you include the authorities of the Office of the Prosecutor?

A. Most certainly.

Q. Did your answer include the possibility that the Office of the Prosecutor would be involved in fabrication of evidence?

A. My answer would certainly be that the Office of the Prosecutor was not involved in the fabrication of any evidence, also in as far as that we were not directly involved in the exhumation that was conducted.

Q. Another question, sir, about the possibility of these graves in Batajnica -- or the bodies having been freshly moved there. Since the 12th of June, 1999, are you familiar with the presence of KFOR in Kosovo?

A. Yes, I am.

Q. And to your knowledge, would any exhumations or any transport of bodies from Kosovo since the 12th of June, 1999, require permission from an organisation such as KFOR who had jurisdiction over Kosovo?

A. Most certainly.

Q. They would require -- I'm sorry. Perhaps my question's not clear. They would require the permission of KFOR?

A. That's right. Correct.

Q. And you -- the third thing: You mentioned that you are aware, on the issue of the transport of the samples from Belgrade to Madrid, you indicate that you know it was taken by someone. Was that Professor ⁹⁹¹⁹ Dunjic?

A. To the best of my recollection, yes.

Q. And he is a professor from the Belgrade institute; is that correct?

A. That's correct.

Q. And he transported -- to the best your knowledge, he transported those samples to Spain?

A. He facilitated the handover of the samples from the Belgrade institute to the Madrid institute.

MR. RYNEVELD: Finally, Your Honours, this is not so much re-examination as it is to assist the Court. During the initial cross-examination of this witness, suggestions were made about the OSCE report, "Kosovo, As Seen As Told." I might refer Your Honours to page 340 of that report where it talks about security force operations on the 11th of March in Jeskovo. And --

Q. Now, Investigator Zdrilic, when you took the statement from K41, to your knowledge was he describing an incident in February of 1999 involving Jeskovo?

A. That's correct.

MR. RYNEVELD: Your Honours, you will note there on pages 340, if I can draw your attention to it, there is a suggestion that there was an operation on the 11th of March, 1999. So it appears to be either a different time, or secondly, if it was the same time, the report indicates that for the majority of the operations, OSCE/KVM patrols were denied access to the area. They then talk about the report that the UCK had ^{9920 BLANK PAGE 9927} infiltrated into Jeskovo, a previously deserted village, about a week earlier. Then skipping a paragraph which starts with the words: "On the 12th of March, OSCE/KVM teams were invited by the police to visit Jeskovo, the village at the centre of the police operation on 11 March. The verifiers saw the bodies of seven armed men in black UCK uniforms. According to the police, all had been killed by small-arms fire during the security force operation."

Then the next sentence is relevant as well. "The teams were not able to conclude that the UCK members had died in the locations where they lay," et cetera. So if Your Honours want to refer to that during the course of your deliberations, page 340, I believe, is the relevant passage that was in question during cross-examination.

JUDGE MAY: Yes. Thank you. Mr. Zdrilic, thank you for giving your evidence. You are free to go.

THE WITNESS: Thank you, Your Honour.

[The witness withdrew]

JUDGE MAY: Mr. Nice, we will have to consider, as I say, who the appropriate witness is to be tendered for the correspondence.

MR. NICE: If I can make one observation. The issue surely is simply whether the letters were sent and received and whether the statements were made. Although I've been following the cross-examination only intermittently, I don't understand the accused's challenge that he received the letters sent to him to challenge that they were sent to him. So we're entirely at the Court's disposal. ⁹⁹²⁸

JUDGE MAY: We think there should be a witness called. If I may say, this is an example - and why I hesitated before I admitted the evidence - of where opportunities are given for further cross-examination and further taking up of court time on peripheral issues. Perhaps the Prosecution could consider that, that if opportunities are given to the accused to ask for cross-examination, he's likely to ask for it.

MR. NICE: Your Honour, yes. But so far as these particular matters of historical -- of history and events, we do regard them as significant. But the candidates for producing the documents other than Mr. Zdrilic or another officer on the team, such as the case officer, there's then his superior, the person at the level of commander as it was then, I think, renamed now, or someone else within the Office of the Prosecutor, the question remains what is the issue to which the witness is going to go? It doesn't appear to be whether the letters were sent and received. And the accused hasn't identified the issue.

JUDGE MAY: But it's again the difficulty of an accused in person and how far he can be pressed on these matters and how far it's right that he should be able to cross-examine. In any event, it can be the subject of further consideration.

Perhaps you could tell us about the conduct of this part. Who is it proposed to call next?

MR. NICE: Olivera Antonic-Simic, who, as I explained last week, will be called shortly by me, and then it will be Mr. Coo.

JUDGE MAY: It is anticipated we are going to finish tomorrow or not, given the time taken today? ⁹⁹²⁹

MR. NICE: I would hope we can finish tomorrow, but there are a number of administrative matters that I want to raise, and I hope that they -- I don't think they'll take very long, but it's probably a good idea that they're not squeezed into the last five minutes of court time as sometimes happens. So I hope that the Court will at least allow us to go into Wednesday, if it becomes necessary, although we'll do our best --

JUDGE MAY: The Court seems to be cut off for no apparent reason. Leave it now, but in future, let's not cut off public debate.

MR. NICE: So there are a number of things that I just want to tidy up. I also want to start the process of setting sail for the next part of the trial and letting you know how I see that.

JUDGE MAY: So it may well be that Wednesday is a more realistic view of when we're going to finish.

MR. NICE: If we work on that basis, we won't feel under any particular constraints, but I'm still hopeful that we'll actually finish tomorrow.

JUDGE MAY: In which case we will start the next part of the case two weeks after we conclude, which is likely to be the Thursday, the date of which eludes me at the moment.

MR. NICE: The 26th, I think.

JUDGE MAY: Very well. You were going to call the witness.

MR. NICE: Thank you. And this witness, like the associated witness, is having facial distortion but nothing else, and that of course is at the request of her employers rather than, I think, herself. Your Honour, the problem that developed with the unfortunate ⁹⁹³⁰ reference to without citation of the entry in As Seen As Told led me not only to search to find the entry but to inquire whether we have an electronic version that would be electronically searchable. Now, we've got an electronic version. We're not yet sure to what degree it is searchable, but if there is one that is searchable, I suspect that might be rather helpful to the Chamber and we'll make it available.

JUDGE MAY: At least to one of our number.

MR. NICE: Your Honour, yes. And I'll try and do the same thing - I'll get Ms. Graham to make a note to this effect - that Under Orders, I'm pretty sure that Under Orders will be available to us electronically, and if it is searchable, I think that will help a great deal. This next witness, as I say, she's tendered, I'll just ask her a half a dozen questions and that will be all.

The accused cross-examined the previous related witness about the statement of this witness. The witness was aware of the nature of the cross-examination, is concerned that a longer extract of the statement should have been considered. I understand her concerns. It may be that her statement should at some stage should be exhibited. In any event, I'll show the longer passage on the overhead projector.

[The witness entered court]

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

WITNESS: OLIVERA ANTONIC-SIMIC

[Witness answered through interpreter]

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth. ⁹⁹³¹

JUDGE MAY: If you would like to take a seat. Examined by Mr. Nice:

Q. Is your name Olivera Antonic-Simic?

A. Yes.

Q. Apparently employed with the Security Information Agency, formerly with the State Security Service, or RDB, having worked overall since 1996 for those organisations?

A. Yes.

Q. Did you work together with Mr. Stijovic, a previous witness in this case, when he conducted some interviews of the man Rade Markovic?

A. Yes.

Q. On those occasions, were you involved at all in the content of the interviews or were you simply involved in their recording, their being typed and printed and so on?

A. I was only involved in the typing and printing of the statement.

Q. Amongst those interviews, was there one dealing with the refrigerator truck?

A. Yes.

Q. As to the content of that interview or any of the interviews, what do you say to the suggestion, if it's going to be suggested, that Mr. Markovic was in any way tricked into signing statements or that statements were presented to him in a completed form for signature? What do you say to those suggestions?

A. I did not attend that, no.

Q. It reads, "I did not attend that." The question was: What do you ⁹⁹³² say to the suggestion that there was any tricking of him or getting him to sign statements that were not his own? Any truth in those statements?

A. That's precisely what I want to say, that this was not done in my presence.

Q. Thank you. I think you saw on television or some other way the evidence of Mr. Stijovic; is that correct?

A. Yes.

Q. Did you disagree with any part of it that he gave?

A. No.

MR. NICE: There's concern that one passage of your statement which was referred to was incomplete. May the witness have a copy of her statement in her own language and may the usher place the statement concerned on the overhead projector, the bottom part of the front page.

JUDGE MAY: It might be helpful if we had copies now. I know we have in the past. If they're available.

MR. NICE: Certainly. I think -- I hope they're available. Can we have the original, and if we can place the bottom part of the statement on the overhead projector.

There is a picture coming up on the video evidence button that normally records what's on the overhead projector. It doesn't seem to be working.

Very well. On the other channel, on the video channel.

Q. Does the third from last paragraph of your statement, Ms. Antonic-Simic, read as follows, and I'll read it simply in full because you're concerned about the way it was dealt with on the previous ⁹⁹³³ occasion:

"Today, Tuesday, 3rd of September, 2002, Investigator Fulton of the Office of the Prosecutor at the Criminal Tribunal for the former Yugoslavia showed me a photocopy of a statement. I have examined the statement and can confirm that the copy statement appears to bear my signature. I cannot be more specific because this is not an original document. It also appears to bear the signatures of Mr. Markovic and Zoran Stijovic. The content of the statement is familiar to me, however, I am really not in a position to confirm that the contents of the statement that has been shown to me are what I typed on that particular day. I would have typed this statement over a year ago, so I really cannot recall the exact contents, however, the statement does refer to the matters that were the subject of one particular interview." And did you then go on to say how the interviews were conducted in a professional way? And is what you said in your statement true?

A. Yes.

Q. Yes. Thank you very much. You may be asked some further questions.

JUDGE MAY: Mr. Milosevic, the witness has given evidence about a very limited matter, and I would have thought you would be able to deal with it briefly in cross-examination, certainly by the next adjournment, which is at a quarter past twelve. Yes.

THE ACCUSED: [Interpretation] All right, Mr. May. I hope I will be able to do so. However, beforehand, I wish to make an observation. This is probably a very rare occasion in the practice of regular courts ⁹⁹³⁴ that the Prosecution brings witnesses to challenge the statement made by their own witness, because namely, General Radomir Markovic was a Prosecution witness. So then they didn't like his testimony and now they're bringing in other witnesses to refute what he said.

JUDGE MAY: You can say what you like at the right time. This isn't the right time. This witness has come to give evidence on a very narrow issue, and you should get on with questioning, such questions as you have.

THE ACCUSED: [Interpretation] All right. Very narrow. Cross-examined by Mr. Milosevic:

Q. [Interpretation] Mrs. Antonic-Simic, you watched Stijovic's testimony. You confirmed that a minute ago. He explained that you were actually not a typist.

A. I'm not.

Q. I asked him something about that. You watched that, so I don't want to waste any time by repeating it. But then he said that, "In that particular case, her job was to be a typist, but she is not a typist." What are you actually? What were you then?

A. An analyst.

Q. An analyst? Did you work in the department of Mr. Stijovic?

A. Yes. I worked in the organisation unit in which he was one of the heads.

Q. Is it customary when such interviews are conducted that there is not a typist present, a mere technical person? Is it customary to take somebody from a higher level? Because you're not a typist, you're a ⁹⁹³⁵ professional analyst, to the best of my understanding on the basis of what you said.

A. Yes, that does happen sometimes.

Q. When does that happen? In what cases?

A. I am not the person who can answer that question. Simply in that specific case, I got instructions and I carried out the instructions given to me by my superior.

Q. So you typed only what Mr. Stijovic dictated; is that right?

A. I typed what Mr. Stijovic and Mr. Radomir Markovic dictated.

Q. All right. Tell me, how many times were you present during the talks with Markovic or, rather, when Stijovic came to see Markovic?

A. I cannot remember the exact number, but it was several times. This went on, I think, for about two months.

Q. Two months?

A. Several times.

Q. And during those two months, how often did you go; every day, every other day, once in every five days? Approximately.

A. Well, it was almost every day, almost every day.

Q. So you were present at least 50 times during the interviews that Stijovic had with Radomir Markovic; is that right?

A. I really don't know the number. I really don't know the number.

Q. All right. But if you say two months, almost every day --

A. Possibly.

Q. Possibly it was that often. And how long did these interviews usually last, the interviews that you had with General Markovic, that you ⁹⁹³⁶ and Stijovic had with him?

A. Several hours.

Q. What was the minimum, what was the maximum length of time?

A. I really cannot say. I do not remember. A few hours approximately. That's the most precise answer I can give now.

Q. All right. Tell me, what were these interviews conducted? What time of the day most often?

A. Sometimes in the morning, sometimes in the afternoon, depending on the possibilities involved, the possibility to enter the premises, that is to say, depending on the other commitments that Mr. Markovic had.

Q. All right. Tell me, since there were tens of interviews that lasted several hours respectively, what were all the subjects of these interviews?

A. I really cannot remember all of that. There were different topics.

Q. All right. Well, then, mention a few topics, for instance.

A. I don't know whether I'm now in a position to speak about different subjects except for this one in view of the confidentiality of the information concerned.

JUDGE MAY: There's no need to answer if you feel you're bound by confidentiality. It's of doubtful relevant anyway. There were other topics other than this one; is that right?

THE WITNESS: [Interpretation] I think so.

MR. MILOSEVIC: [Interpretation]

Q. All right. Tell me now, most of the interviews that you ⁹⁹³⁷ conducted, these tens of interviews that you conducted, did they mostly pertain to the things that Mr. Markovic was accused of or did they pertain to some other activities of the State Security Service; the work, organisation methods, anything else?

JUDGE MAY: I've said that the witness needn't answer that.

THE ACCUSED: [Interpretation] I don't understand, Mr. May. If I'm not asking you -- if I'm not asking her to disclose state secrets here and to answer concrete questions, if I'm just asking her about areas, I don't see that that is a secret that she cannot speak about.

JUDGE MAY: What is the relevance of this to her evidence?

THE ACCUSED: [Interpretation] First of all, I would like to hear the answer and then I'm going to tell you why I think it's relevant.

JUDGE MAY: No. If you want to ask the question, you can tell us why it's relevant first.

THE ACCUSED: [Interpretation] Well, it is relevant, Mr. May, because the witness is giving evidence. So it is relevant what she talked about, because she is testifying about what General Markovic spoke about, and I am asking her what did they speak about.

JUDGE MAY: We're dealing with one particular issue as to whether he was pressured in any way into making a statement, the statement which has been exhibited. That is the only issue which she's giving evidence about.

THE ACCUSED: [Interpretation] Mr. May, is that the only issue or not is a very relative thing, because the question raised here is whether Mr. Markovic's treatment at all was lawful and whether the unlawful ⁹⁹³⁸ treatment of a person in detention can be considered to be pressure exerted upon such a person. Here you have a statement that a police officer brought in and that could not have been the result of tens of interviews that took place over a period of two months. It could have been the result only of one interview.

JUDGE MAY: That was your interpolation, and no doubt it can be clarified with the witness as to how many interviews there were. If you want to put that the statement was the result of a great many interviews, you can put that, but what else the discussions were about does not appear at the moment, to me, to be in any way relevant, particularly if there are problems of confidentiality.

MR. MILOSEVIC: [Interpretation]

Q. All right, Mrs. Antonic-Simic. Most of these interviews, weren't they devoted to the questions related to what Mr. Markovic was accused of?

A. No.

Q. To what extent were these interviews devoted to that? Up to what extent?

A. As far as I can remember, there was no discussion of the matters that Mr. Markovic was accused of.

Q. Very well. Tell me, do you remember whether Mr. Stijovic warned General Markovic that he had the right to have an attorney present?

A. I cannot remember whether he did or not.

JUDGE MAY: I thought the evidence was, from Mr. Stijovic, that these were interviews under a provision in the criminal procedure which did not require an advocate to be present. That's my recollection. I ⁹⁹³⁹ could be wrong.

THE ACCUSED: [Interpretation] Well, if you recollect it, Mr. May, then you will also recollect that such statements cannot be used in court proceedings then, if you wish to quote Stijovic now and that particular provision of the law.

MR. MILOSEVIC: [Interpretation]

Q. So, no. Tell me, please, with regard to what it says here, whether, for example, this question about which the statement was given, was it the subject of the interview that took place during the course of one day or two days or several days?

A. As far as I can remember, only one day.

Q. So only one day. Out of several hours of interviews during two months, this took place only in one day.

THE ACCUSED: [Interpretation] Mr. May, yesterday Mr. Nice gave us, as he said, the official translation of the statement of Mr. Markovic. Did I understand this correctly?

JUDGE MAY: Yes, as I understand it.

THE ACCUSED: [Interpretation] All right. Would you please be so kind as to give me a photocopy of the statement of Mr. Markovic in Serbian, because I haven't got one at the moment.

JUDGE MAY: Have the Prosecution got a copy? No doubt the witness has been -- I mean, the accused has been supplied with this before.

MR. NICE: Yes, I have here a bundle of them coming your way.

JUDGE MAY: We've got one.

THE ACCUSED: [Interpretation] I'm not challenging the fact that it ⁹⁹⁴⁰ was given to me beforehand, but I haven't got a copy here right now.

JUDGE MAY: And the witness should have a copy.

THE ACCUSED: [Interpretation] Let me just remind you, gentlemen, I put a question to Mr. Stijovic when I quoted part of this statement of his, whether it is possible that General Markovic, a man who spent his entire career in the police, could say a sentence like this, which reads as follows: "This was a meeting that was most probably dedicated to the problem of Kosovo and most probably, in addition to the persons mentioned, it was attended by representatives of the army of Yugoslavia, although I cannot claim that with absolute certainty." So "most probably it was dedicated to the problem of Kosovo and most probably it was attended by the representatives of the army of Yugoslavia." I asked him how it was possible if the meeting was in -- in the library, it was not a big rally in a big field so you cannot know what was present -- actually, I'm speaking about this because the translation reads [In English]: "most likely devoted ..." "Most likely." [Interpretation] "Most likely" means most likely. And then, in order not to have such an imbecilic sentence, in the translation, it says [In English]: "Those listed was probably also attended by representative of VJ although I cannot say that for certain." [Interpretation] So two different explanations are used here. From the point of view of language, it is all right, but from the point of view of the authenticity of the text, it's not, because this sentence is unbelievably stupid. That's the way I should put it. Because if anybody, especially with that kind of maturity --

JUDGE MAY: Mr. Milosevic, you've been through it before. You've ⁹⁹⁴¹ made your point. That will be a matter for us, whether it's stupid or not or whether it just reads like any ordinary sentence. We'll have to consider that. But as far as the witness is concerned, you've been speaking for two or three minutes without a question. What is the question for the witness?

THE ACCUSED: [Interpretation] All right. All right.

MR. MILOSEVIC: [Interpretation]

Q. Mrs. Olivera Antonic-Simic, please, in your written statement, you say quite precisely - I only have it in English, I'm going to read it to you in English so that I would not misinterpret it, and I don't want this to be abused: [In English] "The content of the statement is familiar to me --"

[Interpretation] I'm not getting an interpretation here, so I don't know --

JUDGE MAY: Try again.

MR. MILOSEVIC: [Interpretation]

Q. [In English] "The content of the statement is familiar to me, however, I am really not in a position to confirm that the contents of the statement that has been shown to me are what I typed on that particular day."

[Interpretation] So that's what you said, that you cannot confirm that that is exactly what you typed on that day. And a few minutes ago, you said that that was the subject of your interview only during one day; is that right?

A. Yes. ⁹⁹⁴²

Q. And the third thing you said in response to Mr. Nice's question a short while ago when he asked you what your reaction would be if somebody were to say that -- well, let me not quote Mr. Nice now, I'm paraphrasing -- that this statement was given to him for signature. You answered that you were not present then.

Then, thank you, I have no further questions.

JUDGE MAY: I'm sorry, I want that final point clarified. What I thought you said, Mrs. Antonic-Simic, was that while you were present, there was no tricking of Mr. Markovic or getting him to sign statements which were not his. What the accused has put is that you were not present when Mr. Markovic signed, which, as you'll appreciate, are two different things.

If we look at the original version of the statement, Mr. Markovic's signature appears on a number of places, and your own signature appears. Were you present when Mr. Markovic signed the statement on each page and at the bottom, next to your signature?

THE WITNESS: [Interpretation] Yes, I was present. What perhaps created confusion is -- or actually, what I have to state is that I was present and I signed every statement that was authentically taken. That is to say, every statement was taken, typed, printed out, and signed in the premises of the district prison in Belgrade. As for the possibility that was mentioned here, that is, tricking or, rather, planting some other statement instead, that is something that I cannot testify about because I was not present during any such thing. So I was present when the statement was taken if this signature is on the ⁹⁹⁴³ authentic original version of the statement. Then this signature confirms its authenticity.

My reservation in my statement given to the investigators pertained to the fact that a photocopy of the document was shown to me. And from the point of view of substance, the fact is that I took -- or, rather, typed that statement more than a year ago, as I said in my statement. Even then, I did not make an effort to remember it. So even now - that's what I said here - I cannot say with certainty that that is the text that I typed. That is because time went by and the fact that I do not recall the substance, the content of the statement.

JUDGE MAY: Does anybody else want to ask any questions? Yes, Mr. Tapuskovic.

Questioned by Mr. Tapuskovic:

Q. [Interpretation] Ms. Simic, just two explanations. In all these talks, conversations that you had, every time, was -- were the minutes recorded every time or did Mr. Stijovic make notes of his own first and then take them in to the office and then worked with them further?

A. Mr. Stijovic and Mr. Markovic had talks, and during those talks, Mr. Stijovic would make notes. What he did with those notes I really can't say. I don't know. But when Mr. Markovic agreed to give a statement on a particular topic, that statement in that particular room in those premises, it was compiled, dictated, typed, and printed, and signed.

Q. During those long conversations, in view of the fact that Mr. Markovic did not have any professional guidance or assistance, did he, in any of those talks, ask to have a break? Was he tired? Did he want to ⁹⁹⁴⁴ rest for -- and have a pause?

A. No. The premises are such, the ambiance is such that nobody can be in a particularly good mood.

Q. No. I wanted to know whether he had any legal assistance and did he show any reservations in that regard?

A. No.

Q. And can you explain in any way or not explain -- do you know what date was placed on the document underneath his signature?

A. Yes. I think that it is a question of handwriting, because I can see that the figure, the digit, which has been mentioned as being in dispute, that it is a 1 that looks like a 2, but I think that is a matter of handwriting.

Q. And one more point: You listened to Mr. Markovic's statement on television.

A. Only partially, yes. Not in full, but partially.

Q. Thank you, Mrs. Simic.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

MR. NICE: Just one thing, please, Your Honours, arising. Re-examined by Mr. Nice:

Q. In the preparation of these statements generally, were drafts prepared that were reviewed by Mr. Markovic before the final version was printed and signed?

A. Yes. Every statement was in fact dictated out loud. I typed them out. When this was completed, I would print out the statement and hand it over to Mr. Markovic for him to read and sign. If he were to have any ⁹⁹⁴⁵ comments or corrections to make, we would introduce those, we would make those, and then we would present a final version, print that out in a certain number of copies, and that would be signed. Once again, it would be read through again and signed.

Q. Just dealing with His Honour's point, the copy of the Markovic statement that we have bears a signature under the name "Olivera Antonic-Simic." Of course it's only a photocopy, but is that your signature?

A. Yes. That looks in all aspects like my signature.

Q. Thank you very much.

MR. NICE: Nothing else of the witness save for considering whether the -- her own statement should now be exhibited in light of the cross-examination.

JUDGE MAY: Yes. Reference has been made to it. It should be exhibited.

THE REGISTRAR: Your Honours, the statement will be marked Prosecutor's Exhibit 316.

MR. NICE: Your Honour, just before you adjourn, first of all, the witness, may she be released? An then I've just got one thing to help you with.

JUDGE MAY: Yes. Mrs. Antonic-Simic, thank you for coming to give evidence. You will be released. If you wouldn't mind hanging on a minute. There may be one or two other matters which we have to deal with before we go.

MR. NICE: It may be a bit Luddite of me, but the hand-operated ⁹⁹⁴⁶ system was actually quieter. But I'd better not be heard saying that.

JUDGE MAY: Yes.

MR. NICE: Your Honour, I know that at the beginning of Mr. Coo's evidence -- wait a minute. Has Your Honour finished with the witness and said the usual words?

JUDGE MAY: I think so. Thank you for coming. You're free to go.

[The witness withdrew]

MR. NICE: I know at the beginning of Mr. Coo's evidence, there are arguments of the amici on matters of law or fact that may need to be considered. Two points arise: One, on one of the issues that's been raised, I discovered there's a recent authority that adds to the authorities we had before. It's on the question of the position of -- as expert of somebody who has an interest in the outcome of the proceedings. It's part of a very long judgement, so I've got three of the judgements in full; one for Court in case they want it, one for the amici in case they want it, and one for the accused in case he wants it. I've then got extracts of the three pages that are relevant. In fact, only a couple of paragraphs are relevant, and I hope they're properly in context.

JUDGE MAY: Perhaps you could hand them in, please.

MR. NICE: Yes. The case is part of the Factortame litigation. It's in the English Court of Appeal, and as the extracts show, it's only pages 19 to 21 that are material. In reality, it's --

JUDGE MAY: No, don't put that machine on yet. Yes.

MR. NICE: It's the second page, page 20, just the first couple of paragraphs that help you, but you've obviously got to have it in context. ⁹⁹⁴⁷ Sorry, I can give more versions of that for the Judges.

JUDGE MAY: Thank you.

MR. NICE: Two more extracts for the Judges if you wouldn't mind. This will be to the Bench. Thank you.

And the second point about the objections, I ventilated with you yesterday how the procedure might be. I observed that the amici didn't object to my proposal but the Court had its own view. However it's dealt with, it might be helpful, if not otherwise objectionable, for me to have Mr. Coo in court because insofar as I will be summarising to you, if we deal with it in advance, his position in relation to a number of passages, I would rather he was here to make sure I get it right.

JUDGE MAY: Yes. Well, we will hear the argument first. It's prepared in that way, and it would be simpler. And we've got the written representation, so any oral representations could be short. It would be convenient to deal with them all together. At the same time, we will allow Mr. Coo to be in the court during the argument.

MR. NICE: Thank you very much.

JUDGE MAY: We'll sit again in 20 minutes.

--- Recess taken at 12.15 p.m.

--- On resuming at 12.39 p.m.

MR. NICE: I don't know if the Chamber wants Mr. Coo to take the solemn declaration ahead of the argument.

JUDGE MAY: No. We'll deal with the arguments first and the solemn declaration later.

MR. NICE: Thank you. ⁹⁹⁴⁸

JUDGE MAY: Yes.

MR. NICE: We will deal with the issue of materials first of all. There have been two reports filed, and I think in each case the actual report has been supplemented by a report which has been slightly expanded by cross referring footnotes to tab references. I'm actually working from the versions that don't have the tab references and haven't converted all my marks to the other ones, but we will do whatever is convenient for the Chamber.

As to the second of the two reports, there was first a draft and then a final version. I am, of course, working from the final version.

JUDGE MAY: Yes.

MR. NICE: I don't know whether the Chamber, as it were, has focused on the narrow issue or whether it's using the first version of the reports or the versions that have cross-references which slightly threw the page numbering out. We will find out as we go along.

JUDGE MAY: Yes. Well, the answer is that I've got the latest version of the final report.

MR. NICE: Thank you. Your Honour, I don't know how you'd like me to deal with the objections made. The --

JUDGE MAY: Can I say briefly we have had the chance of reading full argument, and therefore, we do not want to hear that rehearsed. Any new argument, of course, we'll listen to.

MR. NICE: Well, then, Your Honour, I've added the latest authority, the --

JUDGE MAY: Perhaps you could just take us to that, briefly. ⁹⁹⁴⁹

MR. NICE: Yes, certainly. It's in the -- it's a decision of the English Court of Appeal, given on the 3rd of July in the case of The Queen on the application of Factortame against the Secretary of State for Transport. It's quite unnecessary to set out the facts of the case, which are fairly complicated. It concerns Spanish fishermen and their rights in England.

But at page 19 and 20, the position of the expert witness is covered. On page 19, which is the first of the short extract I've provided as well as providing the full report, the overriding duties of the expert are set out. I needn't take you to those. On page 20 at the top of the page, picking up a quotation from Lord Justice May in Field v. The Leeds City Council, we read as follows, and then it's this part of the paragraph, paragraph 69 and 70 which seem to be relevant to me: "As to questions of opinion and generally," said Lord Justice May, "I entirely agree with the Master of the Rolls, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter." The judgement goes on to say that: "This is a decision to be contrasted with observations made by Mr. Justice Evans-Lombe in Liverpool Roman Catholic Archdiocesan Trustees v. Goldberg," cited --

THE INTERPRETER: Would you mind slowing down, please. Thank you.

MR. NICE: "That involved a claim for professional negligence in relation to advice given by a Queen's Counsel --" I'm going too fast. I'll slow down. Very sorry. "-- specialising in tax law to the ⁹⁹⁵⁰ plaintiff about its tax affairs. The defendant called to give expert evidence the Queen's Counsel who shared his chambers and was a personal friend of long standing. The question of whether, in these circumstances, the expert's evidence was admissible was raised at an early stage of the trial. The judge decided not to deal with admissibility at that stage, but to deal with that question in the course of his judgement. The action then settled, but the judge felt it appropriate to deal with the admissibility of the expert's evidence. He held that the evidence was inadmissible on the grounds of the public policy that justice should not only be done but should be seen to be done. He put the matter in this way:

"I accept that neither section 3 of the 1972 Act nor the authorities under it expressly exclude the expert evidence of a friend of one of the parties. However, in my judgement, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the --"

THE INTERPRETER: Could you please slow down.

MR. NICE: "... which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely, the extent and nature of the relationship between the proposed witness and the party."

The Court of Appeal differed from that view, as we see from ⁹⁹⁵¹ paragraph 70, in holding that: "This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal." From that, I take it to mean the composition of the tribunal, I interject.

The judgement goes on: "We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the Court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question, the judge will have to weigh the alternative choices open if the expert's evidence is excluded..." And then it focuses on the overriding objective of the English Civil Procedure Rules.

My further apologies to the interpreters for forgetting myself. Your Honour, that judgement fits entirely with the arguments. And I would have argued and do argue, with common sense and all our experience, witnesses, in criminal trials in particular, typically and very often are in one sense a part of the prosecution, to use, as it were, the most pejorative term by which police officers, forensic scientists, ⁹⁹⁵² pathologists in such cases can be described, because they're engaged and employed by the very same service. And we've seen in this case and in all the cases here, on an entirely regular basis, members of the OTP, as it were, or people engaged and contracted to the OTP, giving evidence. So I know Your Honour doesn't want me to go over the ground that's already set out in the written argument, but this recent judgement which it seemed appropriate to draw to your attention as it turned on or touched on one of the issues raised by the amici simply confirms that position. Of course, in this case, the amici do not suggest that Mr. Coo is other than an expert and only invite your consideration of this as an issue.

The other issue --

JUDGE ROBINSON: Mr. Nice, is there a distinction between a person who is in the permanent employ of a party and gives evidence as an expert for that person, on the one hand, and a person who is employed on an ad hoc basis as an expert?

MR. NICE: There is the factual difference. There is no difference of principle.

JUDGE ROBINSON: Both would be -- the evidence of both would be -- would be admissible.

MR. NICE: Certainly, yes. There's no difference of principle at all. I suppose probably in the United States -- but I must ask probably Mr. Shin for guidance on this; in the United States, it's probably the latter type of witness who is more attacked and savaged in cross-examination because he's contracted on an ad hoc basis and, I ⁹⁹⁵³ believe, typically subject to deep inquisition over the fees he's received and matters of that sort, things that don't happen, for example, very much if at all in England. So probably in some jurisdictions the independent expert is regarded as more suspect than the in-house expert. But so far as the legal position is concerned, there is no difference in principle and none of any significance in this case where we have, of course, had already ad hoc experts, we've had a case officer or so giving evidence, bringing, if not expertise, matters closely analogous to expertise and so on. We also set out in the paper the many other examples in this Tribunal of exactly this type of evidence being given.

As to the other headings and then the detailed points, I don't know if the Chamber wants me to go through the detailed points. I've flagged them all.

It seems to me there are just two other points I'd like to emphasise at the moment. One, the objection issue raised about an expert giving evidence on -- or giving opinion about evidence that's already been given.

First of all, this expert and any other would always acknowledge that questions of fact are entirely a matter for the Chamber. So his expert opinion is entirely contingent on what -- whether the evidence given is ultimately accepted. Having made that obvious point, it's also worth bearing in mind that typically this is exactly what experts do. If you take the perhaps most famous of the traditional experts, the pathologist in a murder trial, who will come at the end - again, typically, not always, but typically at the end - of a prosecution's case ⁹⁹⁵⁴ or towards the end of it. He gives a great deal of evidence based upon various different factual hypotheses built on the evidence.

JUDGE MAY: But the objection here is that much of what this witness is saying is pure comment and nothing more.

MR. NICE: Well, Your Honour, I don't read the criticisms as being to that effect. I think I read them more, I must say, as being criticisms of dealing with ultimate issue, which is the other point I wanted to come to. They're certainly not comments.

I think one will find, looking through the particular matters that are objected to, that they were either quite narrowly summaries of -- or not summaries, replication of what actual documents say, sometimes they are the result of analysis by Mr. Coo under the skills that he has and that are particular to him as an expert, and sometimes they are comments, particularly, for example, in Part II, I think, on such matters, the Part II, section E, for example, where he's dealing with crime site linkage. There he is dealing with evidence that has been given and drawing threads together in relation to that. But, of course, everything that he says is recognised by him and by us as being entirely dependent, where it is evidence based, on the findings that the Chamber makes. But what he is doing is exactly the same as experts do.

If you take the other most standard expert in ordinary domestic litigation, the forensic medical expert dealing with a personal injury claim, the alleged malingering plaintiff or claimant, as they would now be called, the evidence as to the physical symptoms and signs of the claimant are given, probably challenged, and ultimately the Court has to assess ⁹⁹⁵⁵ where the truth of that part of the evidence lies. The experts then enter the witness box and say, "Well, on the basis that the symptoms are genuinely described, this is the ideology. If I'm wrong -- if their symptoms are misdescribed, then my opinion is of less or no value," and it's an entirely standard exercise that courts deal with. And as I've revealed by my two very simple examples, they are dealt with both before juries and, of course, before judges, because even before juries, judges are well able to so direct the jury as to allocate expert evidence to the -- to its proper scope depending on their factual findings.

JUDGE ROBINSON: I think on some occasions the objection is that the matters on which opinion is given are not matters that require expertise.

MR. NICE: Yes. There are some of those towards the end, I think. There are so many that I haven't scheduled them in particular. Shall we look at those? I think they come -- just find them -- in the second report, if my recollection is correct, towards the end. Yes. It's -- in the formulation I have of the report, it's on the second report, and it's Registry page number 13837, but it's probably better if I give a different reference. It's the second report, Part II C, page 13. And it's paragraph 18 is one of the examples that Your Honour had in mind, I think. And the paragraph --

JUDGE MAY: Sorry to interrupt you, but a better example might be five pages further on at page 18, paragraphs 25 and 26, when all the witness is doing is commenting on the evidence. General Drewienkiewicz, ⁹⁹⁵⁶ for instance, was offering his professional military opinion, he says, about one --

JUDGE KWON: That's Part II B.

MR. NICE: Yes, I'm sorry, it's a question of page numbers. The page numbering further on is earlier. Yes. Thank you very much. 25, I have that. No, I don't. Part II B, paragraph --

JUDGE KWON: 26.

MR. NICE: 26. I'm sorry to have interrupted Your Honour. Your Honour was --

JUDGE MAY: I was making a comment that here is a comment about a witness. It's not expert opinion, it's merely a straightforward comment on the witness which it is for us to determine.

MR. NICE: Your Honour, of course the assessment of the evidence is for Your Honours to determine. That we accept. I've said that several times.

What the witness is identifying here is the symmetry between the evidence on this occasion that's been given and the doctrine that he's dealt with on a de jure basis, particularly in Part I of his report, going to show that the two match. And on this sort of topic and on others, it would be important for the Chamber to know - and these are occasionally matters I would elicit from the witness in addition to what is already in his report - that there is that evidence that he's seen contrary to the drive of the doctrine of the VJ army in the particular area. So here is the doctrine; as a matter of fact, here is some evidence from General Drewienkiewicz that matches with it; no, I haven't found any evidence to ⁹⁹⁵⁷ the contrary effect. And that's --

JUDGE MAY: The other problem is that this goes into matters which you really should be arguing. It's for you at the end of the case to pull those threads together and put the argument rather than for -- to do it through a witness.

MR. NICE: We certainly will be doing that, but we respectfully suggest that there's, first of all, nothing at all wrong with this being in the report, and it's there to be considered if only for you to pass over it and say, "We'll make our own mind up about that." But it's very helpful to have evidence that, well, here's something that's been given in evidence, and as a matter of fact, this fits with what I had, I think you'll find in case, decided as a matter of expert opinion was the doctrine of this army. These things match. And it's, in our submission, better to have that from the expert than to have it just from me.

JUDGE ROBINSON: Mr. Nice, I agree with Judge May. That is a matter that should be dealt with in closing argument by you. There is no expertise that's required in saying that the one matches the other.

MR. NICE: Well --

JUDGE ROBINSON: That's legal argument.

MR. NICE: If at least two of you are of that opinion, there's probably little point in my saying more. I'm not seeking to do a count, but I'm simply going back to my example --

THE INTERPRETER: Microphone for Mr. Nice, please.

JUDGE KWON: That's three of us.

MR. NICE: Three of you. I won't rerun that. Take another ⁹⁹⁵⁸ typical example. The most typical example, I suppose, almost, in a murder case beyond the pathologist is the psychiatrist dealing with issues of diminished responsibility. He will explain the test to the jury and will indicate some of the things you might be looking for, and he will then say, "Well, I understand evidence has been given, or I've been in court and I've heard evidence given of this. If that's accepted, then that fits with this theory." Everybody understands that, by making that particular proposition, he's not interfering with anybody else's factual remit. And indeed juries, of course, are carefully directed in such cases it's for you to decide the facts and then to apply the legal test. But he says, "Well, there's the test. If this behaviour is accepted as having occurred, it fits with it."

So that what's happening here is entirely standard. And if I may say so, the amici don't, in their paper, which, of course, is designed to do that which the accused would not be able to do and no doubt has been as thorough-going and comprehensive as it can be, given that they all feel that they're not in a position to make choices and to abandon their weaker arguments, they don't point to any prejudice at all, and there is none, because as professional judges, all three of you, I remind myself, are able to decide which parts you want to accept and which parts you don't need to be troubled with. But the scope of the report is, in our submission, entirely appropriate to the expertise of this witness and to rules that apply.

And may I make one other point: A lot of objection is made as to things being, it's said, "ultimate issue," and there are two responses to ⁹⁹⁵⁹ that. The first is that, well, pretty well all jurisdictions now allow experts to give ultimate issue evidence. We haven't cited any, I think, that don't, because the old fiction that somehow the decision-maker had to be protected from somebody else's opinion has gone, even for juries. So to pick up again the diminished responsibility example, although the fiction of drawing a line between ultimate issue from the mouth of the expert and the decision of the jury's finally gone, it has actually been effectively dead for decades and people have been giving ultimate issue evidence.

So point number one, ultimate issue is not in itself a ground for objection in any event. Although the amici suggest several of these are ultimate issues, they're not. Ultimate issue is guilt or innocence of the particular offence charged, and you can always try and say that something's an ultimate issue when it's a part of the overall evidential material. And the various issues raised and dealt with by Mr. Coo aren't ultimate issues. The ultimate issue is guilt or innocence. And that again, of course, is why the diminished responsibility example is always such a good one, because in a murder/manslaughter case where the killing is admitted or accepted and the only issue is diminished responsibility, then the issue on diminished responsibility does determine the verdict as between one and the other. And that's why it was, I think, for long enough thought undesirable for experts to say, "Well, I am of the view that this accused suffers from diminished responsibility." But even that's gone. But we aren't anywhere near that territory in the material here from Mr. Coo which deals with a number of issues along the way. ⁹⁹⁶⁰ I have taken some time but I hope that's helpful. In our respectful submission, the appropriate course would be to take the reports as they stand. The amici will always be in a position to, perhaps as they rather forecast yesterday, make their points insofar as the witness doesn't satisfy them, and one would hope yourselves, but it's for you to decide that what he's doing is not what the amici suggest he's doing and for you to decide in due course, there being no prejudice to taking the reports in full.

Can I help further at the moment?

JUDGE MAY: Thank you, Mr. Nice. Mr. Wladimiroff, is there anything you wish to add?

MR. WLADIMIROFF: Thank you, Your Honours. Not that much. Actually, it's not the first report that worries the amici the most. That is more or less a description of the objective facts which describe how the army, the MUP, and the local defence works and exists in abstract. We have filed some observation on that part of the report as well, but the focus of our concern is the second report.

The second report is more like a kind of note that a law clerk perhaps may draft for one of the Judges of the Court, for all the Judges in the Court, to consider. It really deals with matters which we feel are matters for the Court and not a matter for the expert, because he, in his report, actually reviews the evidence which is reviewed by him and then he is commenting on that evidence on the level which we feel does not require expert opinion or expertise.

Now, let me try to summarise what the issues are. Our main ⁹⁹⁶¹ concern, as I said, is that both reports consist of various evidentiary topics which are matters for the court and not subject to expert opinion, and the focus is on the second report.

What we have submitted is that an expert opinion would only be permissible if it would assist the Court in matters which require specialist knowledge to understand the matter before the Court and to assess it. In that respect, we have taken reference to the Boniton [phoen] case, as quoted, as our observations on the second report. We suggest that not all issues in the reports are matters that require expert assistance, especially not when conclusions are drawn on factual issues that would not require any assistance of an expert, as Judge Robinson rightly recognised. These were issues, as we have identified, which are easy to understand and that really doesn't need any assistance of an expert.

The amici indeed have raised the issue of permanent employment of the expert by the OTP. Let me say that we do not say that the employment as such does disqualify him from giving evidence. We concur with the judgement in the Factortame case, as said by the Prosecution, but the problem is a different one.

The issue is that an expert should avoid eagerness to prove matters rather than to provide expertise opinion. We are worried, we have a pointed at topics that may evidence such eagerness. We have suggested it shows bias to the accused. This, of course, is a matter for the Court to consider. We do not say, as we have said under sub 5 of our second filing, that we do object in a way that it should be excluded but it is a ⁹⁹⁶² matter that has been raised by the amici for the determination of the Trial Chamber because it worries us.

In our observations, we have suggested that the expert has drawn conclusions which are not properly founded or which are beyond his expertise, and we say that the test seems to be this: An expert can assist the Court by testifying to the best of his expertise, knowledge, consistent with the general understanding of the peer group of the matters at hand, after analysing the materials reviewed by him. We also suggest that an expert cannot make -- cannot make evidential assessments instead of the Court or simply draw conclusions from the evidence from a perspective which is not within his expertise, as I defined it. For example, Mr. Coo's a military expert but not an expert in interpreting statements in relation to military matters, nor is he an expert on legal issues as, for example, constitutional law. We submit it's for the Court to assess these kind of matters. It's for the Court to assess the evidence before it. The expert should not replace counsel for the Prosecution in arguing the probative quality or the pervasiveness of the materials reviewed by him, and we also submit that the expert cannot create evidence by adding an opinion which is not in his remit as, for example, his conclusion drawn from the law.

For all these reasons, we believe the expert has submitted opinions and conclusions which are not within his remit as an expert as has been set out, in our opinion. For that reason, we ask the Court to consider these objections and either exclude them or give them proper weight, as we suggested. ⁹⁹⁶³ That's all I have to say.

JUDGE MAY: Thank you, Mr. Wladimiroff. Mr. Milosevic, this is a narrow issue which we're dealing with. You have the right to address us on it. It's whether we should admit this particular evidence or not. Now, you will have the chance, if we do admit it, to cross-examine the witness, so there's no need to go into the merits or anything of that sort. It's purely a question of law, but you can address us on it if you want, having seen the arguments.

THE ACCUSED: [Interpretation] Well, I shall make a few comments with regard to this, but I will be much, much shorter than anyone else over here.

I do not see that anyone can challenge the fact that the main characteristic of a court expert before legal courts anywhere in the world - so that is to say the basic characteristic of a court expert before legal courts anywhere in the world - is impartiality. I assume that no one is denying that.

Over here, it is quite clear that an employee of the Office of the Prosecutor, who has a duty that he is paid for, that is to say, to prove what the other side claims, cannot be considered an impartial person. However, in this specific case, there is also a clear picture of the entire construction, as it were. Here it can be seen that this false prosecution takes its own assertions as proof of their very own assertions.

This is a very special perpetuum mobile that we have been seeing here, and in this particular case, it is clearly demonstrated. Moreover, ⁹⁹⁶⁴ the Prosecution takes its own assertions as proof of its own assertions is done by its own employees in the role of witness. So I would say that this is a violation above all violations of all basic rights that apply to impartiality and ascertaining any kind of truth which would be the role of an impartial court of law. However, as far as this institution is concerned, I certainly would not be surprised if this witness - and I say "this witness" under quotation marks because there can be no mention of a witness here - I would not be surprised if such statements were actually to be taken as proper.

I would even like to add that Mr. Nice, when speaking a few minutes ago - again I cannot quote him exactly, but I can paraphrase what he said, but I think I'm right when I do this - that as regards his employment, that is to say that this witness is employed by the OTP and he quoted this example from the British judicial system, does not have to disqualify the witness as such. He says that employment does affect the weight that is attached to the evidence. Well, that's the whole point. That's the whole point of somebody's testimony, especially here where this entire kaleidoscope of false witnesses has appeared before us, is in the weight that can be attached to it. This kind of testimony, witness statement - and I say all of this under quotation marks because there can be no mention of that - I think that all of this is quite clear. I'm sure it's clear to you too, but you probably have your own criteria according to which you're going to rule on this particular matter. I spoke about this on several occasions already.

I see that the amicus, these friends of the Court of yours, are ⁹⁹⁶⁵ not very categorical in propounding their own positions, but I would like to quote their position from the papers here, provided by them. On page 2, it says: "However, there is a crucial question of the independence of the witness and the fact that the OTP uses the services of its own employee to testify as an expert. What an absurdity. Mr. Coo is employed as a military analyst by the OTP and has been so since June 1999. In view of this status of an OTP employee, the amici believe that the obligation of impartiality for court witnesses, expert witnesses which is essential can thus be compromised."

They are not very energetic - how shall I put it? - in expounding on this but it's quite obvious that even your friends could not neglect this altogether.

I believe that no further comment is needed. Thank you.

[Trial Chamber confers]

JUDGE MAY: The Tribunal has a chance to consider this. Yes, Mr. Nice. Did you want to add something?

MR. NICE: I wasn't going to add anything; I thought you were about to address us.

JUDGE MAY: Please. I'm going to. I'm going to give our ruling, but there's no need to --

I should say that the Chamber has had the chance of reading the written submissions and considering them -- and considered them. It has had the chance now of hearing oral argument, and I will give the ruling. The first issue is the question of the independence of the expert, whether it's right that a witness who is employed by one of the parties ⁹⁹⁶⁶ should be permitted to give evidence as an expert, on the ground that his impartiality is thereby tainted.

The Trial Chamber has considered this point and the objections raised by the amicus and echoed by the accused but nonetheless comes to the conclusion that this is not a matter of admissibility but one which affects the weight to be granted to the witness's evidence. That view is reinforced by the judgement which we have just been shown of the Court of Appeal of England and Wales in The Queen on the application of Factortame against the Secretary of State for Transport of 3rd of July, 2002, where the opinion of Lord Justice May in Field against Leeds City Council, unreported 8th of December, 1999, is given.

As to questions of opinion and generally, there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight, but that is another matter.

And in Factortame itself, the Court of Appeal, or Justice Waller, said that: "Expert evidence" - in paragraph 70 - "comes in many forms... It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings ... but such disinterest is not automatically a precondition to the admissibility of his evidence." We agree with those observations.

The next ground of objection raised by the amici is that some statements and conclusions in the report are based on insufficient evidence. This, too, is a matter which goes purely to the weight of evidence and not to admissibility. ⁹⁹⁶⁷ The most substantial objection to the evidence is on the grounds that it goes to the very issues which the Trial Chamber has to decide, the ultimate issue, as it's called.

The Trial Chamber notes first that, as the Prosecution have it correctly, this -- the ultimate issue doctrine, as it's called, is essentially a common law concept now obsolete in many jurisdictions. For instance, the United States Federal Rules of Evidence permit experts to dealt with the ultimate issues, Rule 704(A). And in the United Kingdom, in the case of Stockwell, 97 Criminal Appeal Reports 260, the Court of Appeal specifically rejected the former prohibition against ultimate issue evidence. Likewise in Re M v. R, 1996, 4 All England Reports 238, the Court of Appeal again allowed that such evidence should be given in civil cases.

Therefore, the rule which simply provides that a witness may not give evidence on those matters, or give an opinion on those matters which are ultimately for the Trial Chamber to decide, namely the guilt or innocence of the accused, that rule is now very much in abeyance and, therefore, the Trial Chamber finds that it has no standing in an International Tribunal where a Trial Chamber consists of professional judges well able to decide for themselves upon matters even if an opinion has been offered on them by a witness.

I would add that it must no doubt be suspected, must be the case, that the rule in common law jurisdictions was introduced for the protection of juries.

Finally, since reference has been made to it, the Trial Chamber in ⁹⁹⁶⁸ Kordic and Cerkez excluded certain evidence of a Mr. Cigar in relation to ultimate issues. However, that can be distinguished as a ruling on the particular facts in that case in which the Trial Chamber commented that the expert report was littered with conclusions and inferences and would not assist the Trial Chamber since it was not evidence of probative value under Rule 89(C) of the Rules of Procedure and Evidence. The reference to Kordic and Cerkez is in the transcript at pages 13305 to -07. On the other hand, in the current case there is no question of a report being littered with conclusions, as it was in Kordic. There are very few, and the Trial Chamber considers the evidence to be relevant and of probative value under Rule 89(C).

However, the Trial Chamber will exclude certain evidence in the report which is based on observations, on questions or comments made by the accused during cross-examination, and on certain observations on the evidence given by other witnesses.

In relation to the questions or comments by the accused, the Trial Chamber notes that this is not evidence. The point has been made often enough to the accused that what he says in cross-examination is not evidence and amount to rhetorical or hypothetical questions. In the view of the Trial Chamber, it is not appropriate for comments in the expert report to be based on these propositions put forward by the accused. As to the expert observations on the evidence given by other Prosecution witnesses, in some cases these comments amount to no more than assessment of the evidence and argument which it is for the Trial Chamber and not for the expert to make. ⁹⁹⁶⁹ For these reasons, the following seven passages in Part II of the report will be excluded, and it may be helpful if counsel and also the witness -- if the witness and counsel would take out the report, I will deal with the passages.

The first is section B, page 1, para 1, the third sentence and the quotation. So it is the sentence beginning: "There is evidence that this principle was recognised ..." and there is then a quotation from the transcript. Those will be excluded.

Two, page B -- I'm sorry. Page 18, part B, paragraph 25. This is again a comment by the accused. The whole of that paragraph is out, is to be excluded.

The next paragraph contains an inappropriate comment, in the Trial Chamber's view, on the evidence of a witness, so that paragraph will be excluded.

Going on next to the page 20, the bottom paragraph, paragraph 31. The clause in the first line of that paragraph: "... and statements to the same effect by the accused," together with the footnote 53, again relates to comments by the accused, will be excluded. Paragraph -- part C, paragraph 6, which is page 5; Part II C, 5. The second and third sentences in paragraph 6, again a comment by the expert on matters which are for the assessment of the Trial Chamber. So the sentence beginning, "Very similar tactics ..." and the other sentence beginning, "And Colonel Ciaglinski ..."

Section C, page 13, paragraph 18, the third sentence, beginning with, "Witnesses such as General Maisonneuve ..." and ending "... for ⁹⁹⁷⁰ particular indictment sites" again will be excluded on the same grounds as being argument and a matter for the Trial Chamber. And finally, part D, Part II D, page 1, the paragraph 1(A) and (B). So beginning with, "In their testimony, Colonel Richard Ciaglinski ..." this is subpara (A), and over the page including subparagraph (B), "And arguments supporting this contention should be made in closed session ..." Again, both of those subparagraphs are excluded as the view of the Trial Chamber is that they are purely matters of argument and comment and not appropriate for the expert to make, a matter which the Trial Chamber will have to assess in due course. Subject to those particular exclusions, the evidence will be admitted.

MR. NICE: Thank you. Your Honour, I ask that the witness take the solemn declaration and provide his curriculum vitae. He will then be banished from further contact until tomorrow, or we could break now.

JUDGE MAY: He's ready. Yes. The witness will take the declaration.

WITNESS: PHILIP COO

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

Examined by Mr. Nice:

Q. It's Philip Coo, correct?

A. Yes, Your Honour.

Q. And, Mr. Coo, you're employed by the Office of the Prosecutor as a military analyst? ⁹⁹⁷¹

A. Yes, I am.

Q. How many years?

A. Roughly three years; I began in June 1999.

Q. We'll look at your background in a second or so, but military analysts working in this office review what categories of material, generally?

A. Generally material of a military nature; and the sources of that information can come from a diversity of sources for that information.

Q. Can you give us some examples so that those watching can have an idea? Sometimes there will be military orders.

A. Yes. We have access -- in this case, I had access to a number of military orders issued by the VJ and the Supreme Command. I also made use of open source material, including the VJ's weekly journal, Vojska. I used the VJ legislation -- sorry, I should say the FRY and Serbian legislation that we had access to in the OTP. Those are just a few examples of the types of material I used in drafting the report.

Q. Very well. Now, by background, you are or were a soldier, correct?

A. Yes, I was.

Q. How many years were you a soldier?

A. I spent ten years as an intelligence officer in the Canadian Forces.

Q. Starting in what year and finishing in what year?

A. I was commissioned in 1988, and I ended service in 1999 when I began working at the OTP. ⁹⁹⁷²

Q. An intelligence officer throughout, explain to us in the most straightforward and simple terms what an intelligence officer does when working within an army, or within your army, and on what materials.

A. The primary purpose of an intelligence officer is to assess a diversity of information and put together a picture for a commander of what's happening on the ground, and in addition to what's happening on the ground, also the intelligence officer's role may be determining the structures of the organisations opposing his commander.

Q. Intelligence of what's happening on the ground could relate to your own troops, could relate to the other side's troops, could relate to allied troops. All three or typically just one or two of those?

A. Typically just the enemy, what's described in our terms as the enemy.

Q. Within the ten years that you were engaged, you may not have been engaged in any active battle, I'm not sure, but what sort of materials did you have that were similar to or different from the materials that you have to work on here?

A. I had access to doctrinal materials which provided information on the doctrine, the ways in which various militaries operated. That material wasn't from exactly the same sources as the sources I used here in drafting this report, but the nature of the information was very similar.

JUDGE MAY: Mr. Nice, I think we'll have to come to an end fairly shortly.

MR. NICE: I think I probably will come to an end within a couple ⁹⁹⁷³ of sentences.

Q. You set out in the curriculum vitae available to the Court, even if it hasn't been publicly filed, your history as an intelligence officer and the schools you attended, that is, the military schools you attended and the positions you held. We may come back to one or two of them later, but at retirement, you held the rank of?

A. I held the rank of captain when I retired.

Q. And were at that stage working on what particular post?

A. At that time, I was in charge of an intelligence section in a reserve unit in Western Canada.

JUDGE MAY: Very well. We will adjourn now. Mr. Coo, I must tell you formally that don't speak to anybody about your evidence until it's over. That does include, of course, members of the Prosecution team.

THE WITNESS: Yes, Your Honour.

JUDGE MAY: Very well. We will adjourn now. Nine o'clock tomorrow morning.

--- Whereupon the hearing adjourned at 1.45 p.m., to be reconvened on Tuesday, the 10th day of

September, 2002, at 9.00 a.m.