Stephen Margetts; Milici; Rajko Dukic

ICTY transcripts in the case number IT-00-39-T, the Prosecutor v. Momcilo Krajisnik (on the authenticity of the document provided by Rajko Dukic) 

Page 20972

1 Thursday, 9 March 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at commence 2.33 p.m.
5 JUDGE ORIE: Good afternoon to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honour. This is case number
8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.
9 JUDGE ORIE: Thank you, Mr. Registrar.
10 Mr. Josse, I think there are two items on the agenda before we
11 continue with the examination-in-chief of Mr. Poplasen. The first,
12 although I do not know any details, is that there was a translation
13 issue.
14 MR. JOSSE: If I could deal with that first, please, Your Honour.
15 JUDGE ORIE: Yes, please do so.
16 MR. JOSSE: I sent an e-mail to offices of the Chamber this
17 morning. I asked them not to send it to the Judges because --
18 JUDGE ORIE: No, we have not -- I do understand that you have
19 provided an alternative translation. I have been informed that there was
20 an issue of translation and that the Defence considered an alternative
21 translation better, but I haven't seen it.
22 MR. JOSSE: Simply because I wanted the agreement of my learned
23 friends.
24 JUDGE ORIE: Yes.
25 MR. JOSSE: I think we've agreed this much -- I can hand it up,

Page 20973

1 although they haven't as yet agreed or commented upon the translation I'm
2 about to hand up. It's short. It relates to Article 3 of the decision
3 that we spent a lot of time on yesterday, so I've got plenty of copies
4 here.
5 JUDGE ORIE: Yes.
6 Madam Usher, could you please assist Mr. Josse.
7 Mr. Harmon.
8 MR. HARMON: Your Honour, I can tell you our position on this. We
9 have received communications from the Defence in respect to this proposed
10 re-translation. We have some issues with it. We will -- we have shown it
11 to our language assistants. We will be in touch with the Defence and we
12 will see if we can find a resolution as to an agreed-upon translation.
13 JUDGE ORIE: Yes.
14 Yes, I see that there are some differences. I notice that "war
15 commissioner" now reads "war delegation."
16 MR. JOSSE: It's nuance, Your Honour, rather than --
17 JUDGE ORIE: Yes.
18 MR. JOSSE: -- markedly different.
19 JUDGE ORIE: Yes. I suggest that -- of course, if the parties
20 would agree on the translation, the Chamber, if it comes down to
21 translations, would not fully rely on an agreement between the parties,
22 because the Chamber would like to have this checked through the services
23 of the CLSS. But if the parties would agree on what would be the most
24 appropriate translation, we could send that for review to the CLSS and see
25 -- see what the final result will be. When do the parties think they

Page 20974

1 could agree on ... Because the witness is now here, I would rather not
2 wait for ages.
3 MR. HARMON: Perhaps we can submit this issue on Monday, Your
4 Honour.
5 JUDGE ORIE: Yes, but then I would -- I would first --
6 [Trial Chamber confers]
7 JUDGE ORIE: As I said, it's fine if the parties agree on this,
8 but that's not the most important matter. I will ask CLSS whether they
9 could compare the translation suggested by the Defence team with the
10 translation as has been provided and to give whatever comment they'd like
11 to give, if that would be possible. We're talking about six or seven
12 lines. I take it that there must be a possibility that someone reviews
13 these seven lines, because it's only Article 3, from what I understand,
14 Mr. Josse.
15 MR. JOSSE: It is.
16 JUDGE ORIE: Yes. Then I don't know -- Mr. Registrar, perhaps you
17 could assist us in making already contact because it's not a -- I don't
18 know exactly how you divide your work, the -- those who are translating
19 written text I think is a different group from those who are assisting us
20 during the -- during the hearings.
21 Mr. Registrar, may I take it that you give these three -- we are
22 talking about a B/C/S original, the translation provided by the
23 Prosecution, and the alternative translation suggested by the Defence,
24 that it will be in the hands of the CLSS and that we hear as soon as
25 possible.

Page 20975

1 MR. HARMON: Your Honour.
2 JUDGE ORIE: Yes.
3 MR. HARMON: I'm sorry, this -- this is a document that was used
4 yesterday, was it, with the witness?
5 JUDGE ORIE: Yes.
6 MR. HARMON: Then I would not have suggested Monday because I was
7 not privy to the discussions with Mr. Josse about this. I thought this
8 was something that didn't have such an urgent nature. If I had known, I
9 would not have made that suggestion.
10 JUDGE ORIE: Yes, well, of course you have the material there as
11 well. So if everyone works on it, these seven lines, we would know as
12 soon as possible what would be the most reliable translation, and it still
13 is language, and translation is a complex matter, as we are aware of.
14 Then the next issue was, Mr. Josse, you asked for five minutes to
15 orally argue the admissibility of the Savkic exhibits.
16 MR. JOSSE: Your Honour, thank you. Could I, before my five
17 minutes begin, deal with the issue of provenance, because quite a lot has
18 happened about that since the last occasion the matter was aired in court.
19 As the Court is aware, Mr. Margetts sent an e-mail first to the
20 Defence and then to the Chamber, detailing the provenance of all these
21 documents. Having considered the matter, the Defence accept what is
22 contained within that e-mail; however, the issue so far as P1055 and P1056
23 is concerned remains slightly unresolved. And in the course of the last
24 24 hours - indeed it may actually only be today, to be fair - I have made
25 some further inquiries of Mr. Margetts because, Your Honour, the position

Page 20976

1 is that 1055, that was the first document that I objected to, that was the
2 one that the witness said was a forgery. It transpires that apparently it
3 was obtained from the archives of the Boksit company in Milici. Well,
4 unsurprisingly, that was of some real interest to the Defence, bearing in
5 mind what the witness was saying and bearing in mind how the witness --
6 the issue of forgery. So some further inquiries have been made and I
7 would invite Mr. Margetts to inform the Chamber about them and then
8 perhaps we could see how they can be entered effectively into the
9 evidence, because the Defence want these matters as part of the evidence.
10 JUDGE ORIE: Yes, I do understand. There was the document where
11 the witness testified, I think, that it was in the interest of the Boksit
12 company to have something on paper --
13 MR. JOSSE: Precisely. And in re-examination I asked him who it
14 was who forged them and he basically said it was Serbs within that
15 organisation, that's who he guessed had been responsible for it.
16 JUDGE ORIE: Yes.
17 MR. JOSSE: But perhaps Mr. Margetts could give the extra
18 information because, as I say, I'm very anxious that that be on the
19 record.
20 JUDGE ORIE: Yes.
21 MR. MARGETTS: Yes, Your Honours, first of all in regard to the
22 provenance and the e-mail we sent of 23 February, and it was subsequently
23 forwarded to the Trial Chamber, this is how we described the provenance of
24 that document: It was part of a group of documents delivered to the
25 Office of the Prosecutor on the 29th of October, 2002, by the liaison

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1 officer of the Republika Srpska government, Mr. Trifun Jovicic, and he
2 informed the OTP that the documents were obtained from the archives of the
3 Boksit company in Milici.
4 My learned friend made some further inquiries and asked whether we
5 could provide some further information in relation to that. We did so
6 today, an e-mail to my learned friend, and this is the information we
7 provided: The provision of these documents and a number of other
8 documents to the OTP arose from an interview that was conducted with
9 Mr. Rajko Dukic in Belgrade on the 1st of September, 2002. I - referring
10 to myself, Stephen Margetts - participated in that interview. And during
11 the course of that interview, Rajko Dukic undertook to provide documents
12 related to paragraph 2 of Exhibit P52 to us. And Your Honours will recall
13 Exhibit P52; it's the facsimile dated 15th December, 1992, sent to
14 Mr. Krajisnik and addressed to Mr. Karadzic. And in paragraph 2, it
15 refers to approximately a little bit more than 3 million Deutschmarks aid
16 provided to Republika Srpska, and it refers to the characterisation of
17 that as a tax liability. So that's the further information that we've
18 provided.
19 MR. JOSSE: Could I just add this: I then asked Mr. Margetts this
20 question in writing: "Are you saying that Dukic provided these documents
21 to Jovicic?" And he provided with the answer: "Correct."
22 MR. MARGETTS: Yes, Your Honour, I can confirm that that's
23 correct.
24 MR. JOSSE: And though I have said to Mr. Margetts that I invite
25 the Prosecution to make further inquiries, I think for the purpose of this

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1 argument that isn't necessary. It's quite clear to the Chamber that the
2 Prosecution accept that it was Mr. Dukic himself who provided them to the
3 liaison officer, who then passed them on to the Office of the Prosecutor.
4 Your Honour, these are my submissions:
5 The issue of these documents raises, in our submission, a number
6 of interesting and important questions. Could I begin by endorsing, in
7 effect, what Your Honour put to Mr. Margetts in the course of argument on
8 the 23rd of February, when, at page 20816 of the transcript, Your Honour
9 in effect said insofar as a forgery is concerned, and this related to
10 P1055: "Does a forgery -- if it's true that it's a forgery, this document
11 could well be understood as corroborating the witness's evidence that the
12 Crisis Staff never existed because documents that are produced are
13 forgeries. If, however, it very much depends on whether it's a forgery,
14 yes or no. If it's a forgery, then it might support the witness's views.
15 If not, well, it's likely to corroborate the Prosecution's view."
16 And then a moment later Your Honour said: "But is it for the
17 witness to demonstrate that it's a forgery or is it for the Prosecution to
18 demonstrate that it's an authentic document?"
19 Well, Your Honour, the Defence say that it's for the Prosecution
20 to prove that it's not a forgery and to prove that beyond a reasonable
21 doubt. And it's important to do things in the correct order because
22 clearly that is of some relevance. So far as Mr. Margetts's submissions
23 that then followed on the 23rd of February are concerned, we contend that
24 they were ostensibly misconceived. He classically put the cart before the
25 horse. In effect, so far as virtually, if not every document, he invites

Page 20979

1 admission of the document on the basis that the Trial Chamber can conclude
2 that the witness is lying. This is not a helpful approach, in our
3 submission, because it can't be proper or helpful for a party objecting to
4 the admissibility of their document from the other party to make a long
5 speech commenting on why the witness is not telling the truth. In
6 passing, we contend, that it's slightly surprising that the Trial Chamber
7 didn't stop Mr. Margetts.
8 Having said that, what it does mean is that if Mr. Margetts's
9 approach is correct, the basis of admission would necessarily entail, in
10 relation to any document objected, the Trial Chamber making all sorts of
11 findings about the witness, firstly, before deciding if the document
12 should be admitted into evidence at all; and secondly, of course, before
13 the end of the case and before hearing all of the evidence.
14 So Mr. Margetts's approach is fundamentally flawed, in our

15 submission.