1 Friday, 2
2 [Motion Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.30 a.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: [Interpretation] This is case number IT-99-36-PT,
8 the Prosecutor versus Radoslav Brdjanin and Momir Talic.
9 JUDGE HUNT: Appearances for the Prosecution.
10 MS. KORNER: Your Honour, Joanna Korner, Anna Richterova, assisted by
11 Adele Erasmus, case manager, for the Prosecution.
12 JUDGE HUNT: Thank you. For Mr. Brdjanin.
13 MR. ACKERMAN: Good morning, Your Honours. I am John Ackerman. I
14 appear here this morning on behalf the Radoslav Brdjanin. Thank you.
15 JUDGE HUNT: Thank you. And for General Talic.
16 THE INTERPRETER: The microphone is not on, Your Honour.
17 JUDGE HUNT: Your microphone was not on, Mr. de Roux, but we note
18 your appearance and with Mr. Pitron.
19 First of all, Mr. Brdjanin, are you able to hear the proceedings
20 in a language which you understand?
21 THE ACCUSED BRDJANIN: [Interpretation] Yes, Your Honour.
22 JUDGE HUNT: And General Talic, you, too?
23 THE ACCUSED TALIC: [Interpretation] I can, Your Honour.
24 JUDGE HUNT: We'll commence with the application for provisional
25 release by General Talic. Which of you is to conduct the application?
1 Mr. de Roux, the application for leave to file a reply was lost
2 somewhere between the translation section and the registry, but we've now
3 got it, and we will grant leave. It does deal with at least one matter,
4 new matter raised in the Prosecution's response; but mainly, if I may say
5 so, it is repetitive of what you said in your motion. But if we allow you
6 to file it, it will, I hope, save you from having to deal with it orally
7 during the course of the hearing. And the Prosecution can respond to it
8 orally at the end of the motion.
9 Yes, Mr. de Roux.
10 MR. DE ROUX: [Interpretation] Mr. President, ladies, gentlemen: I
11 have the honour today of requesting the release of General Talic for
12 several reasons which are simple and which I will try to present briefly.
13 JUDGE HUNT: Excuse me, Mr. de Roux, we do have your written
14 submissions in the motion and in the reply, so you need not repeat
15 anything you said there. But if you want to add anything to it, by all
16 means do so. At what stage do you want to call your witness?
17 MR. DE ROUX: I will call the witness in one minute, but -- and we
18 have, of course -- but I want to repeat very briefly, [Interpretation] I
19 would like to repeat what I believe is the very heart of this matter: an
20 arrest, a 17-month detention, and since then, since then, an indictment
21 which your Tribunal at its hearings in the November hearing found so vague
22 that it asked the Prosecution to provide us with a more specific version.
23 Since then, we have not received anything from the Prosecution,
24 and I think that there is a principle which applies in all countries of
25 the world which is the one distinguishing detention from the accusation
1 itself for the Prosecution.
2 For the time being, the Prosecution, in very general terms, very
3 vague ones, that this is not collective responsibility and that we are not
4 judging collective responsibility of a government or a state or a people.
5 You are judging a man. And for this reason, it is appropriate that the
6 indictment contains sufficiently specific facts, and you noted that that
7 was not the case. The Prosecution did not correct these difficulties, and
8 I believe that it is time to ask for application of Article -- Rule 5 of
9 the Rules, your own, your own Rules of Procedure and Evidence, in such a
10 way that faced with this situation, Rule 65, that is, in a trial which
11 seems to have no end - I don't know when this trial is going to take
12 place - General Talic might be able to be released under certain
13 conditions, under conditions which will be explained to you by the witness
14 whom we have called, who is the Minister of the Interior of Republika
15 Srpska, the new Government of Republika Srpska, because elections took
16 place not so long ago. And to hear this witness, I will give the floor to
17 my colleague, Mr. Pitron.
18 JUDGE HUNT: Thank you. Yes, Mr. Pitron.
19 MR. PITRON: [Interpretation] Mr. President, ladies and gentlemen,
20 good morning. You have ...
21 [The witness entered court]
22 JUDGE HUNT: Perhaps we'll have the witness make the declaration
23 and then you can take him.
24 Sir, would you make the solemn declaration in the document which
25 is being handed to you.
1 THE WITNESS: [Interpretation] I solemnly declare that I will speak
2 the truth, the whole truth, and nothing but the truth.
3 WITNESS: PERICA BUNDALO
4 [Witness answered through interpreter]
5 JUDGE HUNT: Sit down, please.
6 Yes, Mr. Pitron.
7 MR. PITRON: [Interpretation] Mr. President, ladies and gentlemen,
8 you have in your file several documents, especially guarantees which were
9 provided by the Republika Srpska on 10th of November, 2000, which was
10 signed by Mr. Dodic, the Prime Minister. There is a document entitled
11 conclusions signed by the new Prime Minister, Mr. Ivanic, which is dated
12 25 January, 2001, which repeats the guarantees one finds in the previous
13 documents, and another document signed by that same Prime Minister on the
14 same date which authorises the Minister of Internal Affairs here to
15 represent -- to speak on behalf of the government to you.
16 You also have two other documents, a declaration by Mr. Bundalo,
17 who was the Minister in the -- of the -- Mr. Bundalo in the government,
18 who gives promises and guarantees in respect of Mr. Momir Talic.
19 Therefore, what I would like to do with you is to ask several
20 questions of the Minister so that he can explain the scope of the
21 guarantees which were provided by the Government of Republika Srpska and
22 how he's going to ensure that these are respected.
23 Examined by Mr. Pitron:
24 Q. Mr. Bundalo, would you give us your name, your first name, and
25 your current position.
1 A. My name is Perica Bundalo. By occupation I'm a graduate lawyer,
2 and since the 12th of January this year, I'm Minister of the Interior in
3 the Government of Republika Srpska.
4 Q. Mr. Minister, could you describe to us exactly what your functions
6 A. My function is that I am a Minister in the Government of Republika
7 Srpska, so one of 19 Ministers in the cabinet, and I head the Ministry of
8 Internal Affairs, which has a staff of over 9.000, and I have the
9 competencies provided for by the Law on Internal Affairs, the Law on the
10 Government, and a series of other regulations.
11 Q. Mr. Minister, I would like you to tell the Tribunal whether you
12 know General Talic.
13 A. I do not know General Talic personally, but from the mass media, I
14 am familiar with his name, the functions he performed before the war,
15 during the war, and after the war. According to what I know, I can say
16 that during the war, he was the Commander of the 1st Corps of the army of
17 Republika Srpska. After the war, he was Chief of Staff of the Main Staff
18 of the army of Republika Srpska. And as a citizen, I know that he enjoys
19 great respect among the people and in the army, and that his arrest caused
20 astonishment, to put it mildly.
21 Q. Mr. Minister, I'm referring to the document which was signed when
22 Mr. Ivanic, who was the Prime Minister, on the 25th of January, 2001, and
23 which authorises you to appear as a witness before the Tribunal. Have you
24 seen that document?
25 A. Yes, I have.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Q. Are you familiar with the guarantees which were provided by
2 Republika Srpska in respect of General Talic?
3 A. I am familiar with the text of the guarantees provided by the
4 former government led by Prime Minister Dodik. I'm also familiar with the
5 confirmation of the guarantees given by the current government, and in
6 that context I wish to say that before a decision was made at a government
7 meeting, the Prime Minister and myself had consultations to see to what
8 extent the Ministry of the Interior is able to assume upon itself the
9 obligations stemming from the wording of the guarantees. I gave
10 assurances to Mr. Ivanic, the Prime Minister, that the Ministry of the
11 Interior is capable fully to comply with all those guarantees and propose
12 that the government should confirm the text of the guarantees that had
13 been previously given.
14 Q. Mr. Minister, I'd like to go back a little bit. You say that you
15 are familiar with the document. Could you tell us whether the document in
16 respect of the guarantees for General Talic was discussed by yourself on
17 the level of the government, and whether it was the subject of a
18 discussion and consensus?
19 A. As I have just said, I had a discussion with the Prime Minister
20 and also with my associates to see whether all the technical and other
21 requirements are available, and I was given assurances by my associates
22 that the Ministry of the Interior, and especially the Public Security
23 Station in Banja Luka, has all the necessary personnel and technical
24 requirements to provide these guarantees; and there was absolute consensus
25 among the government with respect to these guarantees.
1 Q. Mr. Minister, I would like to move to a second document which is
2 your own declaration. You know that document. The document on the bottom
3 of the page, is it yours -- the signature on the bottom of the document,
4 is it yours?
5 A. Yes, that is my signature.
6 Q. In the document you speak of various measures that could be used
7 to apply the guarantees given by the government. Could you tell us in
8 concrete terms what measures the police can take?
9 A. All the measures required in respect of monitoring and securing
10 the individual provided for by the rules starting from the takeover of
11 General Talic from the Dutch authorities here, his monitoring, his
12 escorting to Republika Srpska, daily monitoring of his movements,
13 preventing any possible contact with witnesses, preventing any possibility
14 of fleeing, reporting regularly to the Tribunal as envisaged by the
15 guarantees, up to bringing him back to this Tribunal when required to do
17 Q. Could you confirm for us in specific terms that the monitoring
18 that you're able to put in place will prevent General Talic to meet
19 anybody who would not be authorised by the Tribunal?
20 A. I can absolutely confirm that, that we are capable of fully
21 meeting the requirements stemming from these guarantees.
22 Q. Mr. Minister, I thank you.
23 MR. PITRON: [Interpretation] I have concluded for the time being,
24 Mr. President.
25 JUDGE HUNT: Ms. Korner.
1 Cross-examined by Ms. Korner:
2 Q. Mr. Bundalo, your government came into power, I think, after the
3 elections last November?
4 A. Yes, that is correct.
5 Q. And the government of the Republika Srpska is made up of a number
6 of different parties?
7 A. Yes.
8 Q. It includes a number of members of the SDS party founded by
9 Mr. Karadzic?
10 A. I'm not aware of that. As far as I know, there are ministers from
11 the Party of Democratic Progress to which I believe before I took up my
12 post, there are ministers from the socialist party, and there are
13 ministers which are non-party members, which are not members of any party.
14 Q. I'll rephrase the question. Are there any members of the
15 government who are members of the SDS?
16 A. I am not aware of any.
17 Q. Does that mean there are not?
18 A. I think there aren't any.
19 Q. I don't want to belabour this too long, Mr. Bundalo, but as the
20 Minister of the Interior, don't you know to which party other ministers
22 A. I have already answered that question.
23 Q. One small matter: You told us at the beginning of your evidence
24 that you discussed with the Prime Minister, Mr. Ivanic, whether the new
25 government would confirm the guarantees given by the old government under
1 Prime Minister Dodik; is that correct?
2 A. We did discuss that so that I could confirm to the Prime Minister
3 whether we have the necessary personnel and technical facilities to
4 confirm those guarantees, and I told the Prime Minister that we do have
5 all that. And that was a precondition for this government to confirm the
6 guarantees provided by the previous government.
7 Q. Do I understand from that that you did not consider yourselves
8 bound by any guarantees given by the previous administration?
9 A. I didn't understand the question.
10 JUDGE HUNT: I think what you're saying is, "Prior to that
11 discussion you did not feel bound"; is that what you're asking him?
12 MS. KORNER: Yes.
13 JUDGE HUNT: It would be best to make that clear, I think, in the
15 MS. KORNER:
16 Q. Prior to the discussion, your government did not feel bound by the
17 guarantees given by the previous government.
18 A. This government is a legal government. With respect to this
19 particular question, as all other questions, will be discussed separately,
20 and the government will take upon itself the obligations that it considers
21 it should in each particular case.
22 Q. Can I move on, please. Your President, when he was elected,
23 stated that the question of Mr. Sarovic - I hope I pronounce his name
24 correctly - stated that cooperation with this Tribunal, namely, The Hague,
25 was a challenge and a hard question. Would you agree with that?
1 A. I have nothing to add to that statement.
2 Q. So you are of the same opinion, are you, Mr. Bundalo, that
3 cooperation with this Tribunal is a challenge and a hard question?
4 A. I think your question goes outside the scope of my presence here
5 and my role in this case, but I must admit that for my government, it is a
6 sensitive question.
7 Q. Has your government put into place any measures to arrest some of
8 the outstanding indicted persons who reside in the Republika Srpska?
9 MR. PITRON: [Interpretation] I apologise, but, Mr. President, it
10 seems to me that we are getting outside the scope in which the Minister
11 was invited to comment, so I object to this type of question.
12 JUDGE HUNT: It is very relevant to the issue which we have to
13 decide, Mr. Pitron, as was made clear by us in the Brdjanin decision.
14 You proceed.
15 MS. KORNER:
16 Q. I will repeat the question, Mr. Bundalo. Has your government put
17 into place any measures to arrest outstanding persons against whom
18 indictments have been issued?
19 A. I have to say that this government was elected at a session of the
20 People's Assembly on the 12th of January, that it has been taking over its
21 duties in the days that followed - so I actually took up my post on the
22 26th of January - and we were simply not in a position to undertake any
23 specific moves except those that are part of the daily duties.
24 I also wish to express my personal conviction that this government
25 will address the question of The Hague Tribunal from a different
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13 English transcripts.
1 standpoint and in a different way than has been done hitherto. I wish to
2 point out that that is my personal opinion.
3 Q. So there has been no discussion as yet as to whether or not your
4 government proposes to attempt to arrest any of the outstanding persons,
5 for example, Zeljko Meakic, Momcilo Gruban?
6 A. We simply have not had the time yet to start any discussions along
7 those lines.
8 Q. I want to move then, please, to General Talic himself. It is
9 right, is it not, that your government takes a greater interest in the
10 welfare of General Talic than almost any other person awaiting trial?
11 A. I wouldn't put it that way. As far as I have been informed, we
12 have taken upon ourselves certain other guarantees linked to the release
13 of some other detainees in The Hague Tribunal. So there's no special
14 relationship towards General Talic.
15 Q. That's not quite right, is it, Mr. Bundalo? General Talic is the
16 only defendant at this -- accused at this Tribunal for whom the Republika
17 Srpska has assumed responsibility for his defence; isn't that right?
18 A. That is all that has reached you, but as far as I know, the
19 provision of other guarantees is also ongoing.
20 Q. I'm not talking about guarantees. I'm talking about the
21 responsibility for the instruction or the payment of counsel for his
23 A. I'm not informed about that.
24 Q. You don't know.
25 A. I do not know because that is not part of my competency.
1 Q. Are you aware of the offers which General Talic has made to this
2 Tribunal in respect of guarantee -- personal guarantees that he will
3 return to stand his trial?
4 A. I'm not aware of his personal guarantees. I have come here to
5 speak about the guarantees provided by my government and my Ministry.
6 Q. So you were not informed of anything that he was personally
7 offering to do.
8 A. I was not informed, though I think that both guarantees should be
9 viewed together, and they should help the Trial Chamber in making a
10 decision about the provisional release of General Talic, taking into
11 consideration his personal guarantees as well as the guarantees of my
13 Q. Were you aware that an offer has been made that General Talic
14 himself proposes to provide a bail bond; in other words, to put up money?
15 A. I don't know about that.
16 Q. Has there been any discussion, to your knowledge, whether or not
17 that money will be put up by the Republika Srpska?
18 A. Not to my knowledge.
19 Q. Were you aware that there was a guarantee being offered by
20 General Talic that he would not discuss the case in which he is involved
21 with any person other than his counsel?
22 A. That is part of the guarantees that we are providing. Among the
23 other things that we are guaranteeing, we are also guaranteeing that we
24 will make sure that he has no contact with witnesses in his case or any
25 other witnesses in any other case. So that is one of the component points
1 of the guarantees we are offering.
2 Q. Not a witness. The guarantee, the offer, is apparently "any other
4 A. I fully agree with you. "Any other person," that is right.
5 Q. You have offered to have the police, police patrol, to follow him
6 day and night.
7 A. Yes, that is correct.
8 Q. Is it proposed that this police patrol will prevent him entering
9 houses belonging to other people?
10 A. I am quite confident. In our organisation, we have special
11 organisational sectors that are specially trained to provide surveillance
12 and security, and those men under my direct command would be assigned to
13 monitor General Talic and to report to you as the Tribunal periodically as
14 you may require them to do. In other words, they would make sure that he
15 would not be able to contact any other person.
16 Q. At all?
17 A. At all, if such is your requirement.
18 Q. I want to ask you about one gentleman in particular, please. Do
19 you know a gentleman called Bosko Kelecevic?
20 A. I am familiar with the name, but I do not know him personally.
21 Q. Isn't he at the moment the chief of intelligence in the Republika
23 A. I am not aware of that, but even if he is, I think that he will
24 soon be replaced.
25 Q. I'm so sorry, you say you're not aware of it, but you say that
1 even if he is, he will soon be replaced. How do you know that if you're
2 not aware of that?
3 JUDGE HUNT: I'm not sure that that is what he did say. He said
4 that he's familiar with the name, but he does not know him personally.
5 MS. KORNER: All right.
6 Q. Well, perhaps I can repeat the question. Is he or is he not the
7 chief of intelligence?
8 A. No, I don't know that.
9 Q. You're a member of the government, Mr. Bundalo. Who is the chief
10 the intelligence, please?
11 A. The Secret Service does not come under the Ministry of Internal
12 Affairs, and its very name, the Secret Service or Intelligence, makes it
13 clear that very little is known about the composition of that service and
14 even the person heading it.
15 As far as I know, this government that was elected at the last
16 general elections and that took up its duties in the course of January
17 will be making many personnel changes in all segments of the state
18 administration, and from that I conclude that the head of that service
19 will also probably be replaced.
20 Q. Are you saying that the head of the Secret Service and the head
21 thereof is not accountable to the government?
22 A. According to the regulations governing the work of the
23 intelligence service, this service is accountable directly to the
24 president of the state, the president of the Republic, and less so to the
25 prime minister. So let me underline and repeat, to the president of the
1 Republic and partially to the prime minister. He is not accountable to
2 the government as such.
3 Q. So any guarantee that you can give this Court would not cover that
4 Secret Service or its heads' activities?
5 A. I am giving the guarantees here on behalf of the government of
6 Republika Srpska and on behalf of the Ministry of Internal Affairs which
7 fully stand behind these guarantees and are capable of fully meeting all
8 the requirements of this Tribunal.
9 Q. Two more questions about Mr. Kelecevic. Were you aware that he
10 was the Chief of Staff and Deputy Commander to General Talic?
11 A. As a citizen, I'm aware that he held senior military positions in
12 the previous period. That's all I'm able to say.
13 Q. Do you know whether there has been any contact between General
14 Talic and Mr. Kelecevic since the General's arrest?
15 A. I'm not aware of that.
16 Q. From what you tell us, you would not be in a position, would you,
17 to know one way or the other?
18 A. I have to remind you that Mr. Talic was arrested 17 months ago,
19 that I have been in this position for 20 days only, that in the period
20 prior to that I was not involved in politics at any high level, nor did I
21 hold any senior positions, so that information of that kind would not be
22 available to me.
23 Q. Thank you very much, Mr. Bundalo.
24 JUDGE HUNT: Ms. Korner, you've mentioned two names earlier on,
25 Meakic and Gruban.
1 MS. KORNER: Meakic.
2 JUDGE HUNT: Thank you. They are the subject of public
3 indictments, are they?
4 MS. KORNER: Yes, they are.
5 JUDGE HUNT: Are they the only ones living in the Republika Srpska
6 who are --
7 MS. KORNER: No, they're not.
8 JUDGE HUNT: -- under that term?
9 MS. KORNER: No. I gave examples, Your Honour, I can put the rest
10 that are --
11 JUDGE HUNT: It's a matter for you.
12 MS. KORNER:
13 Q. Mr. Bundalo, are you aware of the name Dusan Knezevic?
14 A. No, I never heard of that name.
15 Q. Indicted in respect of the Omarska and Keraterm camps.
16 A. I don't know that.
17 Q. Predrag Banovic, indicted in respect of the Keraterm camp?
18 A. I'm not aware of that.
19 Q. Ranko Cesic, indicted in respect of the Brcko incidents?
20 A. I don't know him.
21 Q. Milan and Sredoje Lukic, indicted in respect of Visegrad?
22 A. I don't know them.
23 Q. Blagoje Simic, indicted in respect of Bosanski Samac?
24 A. I know from the media that he has been indicted, but I do not know
25 the man himself.
1 Q. Gojko Jokanovic and Radovan Stankovic, indicted in respect of
3 A. I don't know them.
4 Q. And last, Karadzic?
5 A. I know the name.
6 Q. Living in Pale?
7 A. I don't know that.
8 Q. You do not know that Radovan Karadzic, the ex-Prime Minister of
9 the Republika Srpska, is living in Pale?
10 A. I don't know that.
11 MS. KORNER: Yes. Thank you.
12 JUDGE HUNT: Re-examination, Mr. Pitron.
13 MR. PITRON: [Interpretation] No, Mr. President. I think that the
14 questions were complete. I have a rather brief summarising comment I'd
15 like to make, however.
16 JUDGE HUNT: But first of all, I will let the witness go or do you
17 want him to remain for some reason?
18 MR. PITRON: [Interpretation] Yes, Your Honour.
19 JUDGE HUNT: Thank you, sir, for giving evidence. You are now
20 free to leave.
21 [The witness withdrew]
22 JUDGE HUNT: Mr. Pitron.
23 MR. PITRON: [Interpretation] Mr. President, ladies and gentlemen,
24 I believe the episode that we have just experienced is particularly
25 illustrative of the two conceptions which are in opposition here at this
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13 English transcripts.
1 Tribunal between the Defence and the Prosecution.
2 We have concrete elements and we have abstract elements. What do
3 we concrete before us? We have an individual who has been in detention
4 for 17 months, against whom there is no structured indictment, and the
5 Tribunal has not failed to point that out at its November hearing when it
6 asked the Prosecutor to be more specific in respect of the charges against
7 our client.
8 We have a file in which most of the witnesses are unknown to us.
9 We don't know their names, and there are parts of their statements which
10 we don't have. What can we do faced with that? First of all, we waited,
11 and I have to say that we waited with confidence, because we did not doubt
12 that the Prosecution would be in a position to support its accusations and
13 that we would be able to defend ourselves. But after 17 months, Your
14 Honours, without a specific indictment, without witnesses whom we know,
15 and 40.000 exhibits in the case file, tens of thousands of which do not
16 concern our client, it seemed to us that we had to come out of the trial
17 and gone into what in France we call a judicial comedy. And on that
18 basis, it seems to us that we were now well-grounded in asking that
19 justice go down its path under conditions that are not inhuman for our
20 client. This means under conditions which would allow him to be free and
21 to be under surveillance.
22 Faced with these concrete elements, what has been presented to you
23 in the few moments which we've just gone through? Once again, the
24 legitimacy of a government democratically elected has been put into
25 question. You have just been told names of several people who have been
1 mentioned whom we do not know and who have nothing to do with our case,
2 nothing at all. Systematically, the guarantees have been denied. These
3 guarantees which were asserted by the Minister of the Interior, who told
4 you in every possible way that he was in a position to ensure that on a
5 daily basis, day and night, General Talic would be under surveillance.
6 Faced with specific elements which all demonstrate a single
7 resolve on our point to keep in detention General Talic, you were
8 presented only with accusations which were not grounded against the
9 assertions of a Minister who was democratically elected.
10 It seems to me that we have conditions today for your Tribunal,
11 through its wisdom, acknowledge that it is not necessary in order for
12 justice to be carried out that the accused be kept in detention. Much
13 more than that. It seems to me that this would be normal, natural - and I
14 hope that my words will be interpreted properly into English - that it
15 would be redounding to the honour of the Tribunal for it to admit that one
16 can consider that one can be a general, a Serbian general, and also to be
17 in good faith and not to try to run away from ones judges.
18 Do I have to recall -- and that's where I'll stop. Do I have to
19 recall that the highest authority of Republika Srpska, spontaneously, did
20 not hesitate to come to this Tribunal without having to have the police
21 look for him, and that is Madam Plavsic. Why? Why, what she -- what she
22 did, would the General not do also? Thank you very much.
23 JUDGE HUNT: Well, Mr. Pitron, I think I am bound to put this to
24 you to have you give what answer you have to it, but you will recall,
25 because you were present, that on the 11th of January, 2000, your client
1 said this:
2 "As far as I know, all the crimes that were done by military
3 personnel in war are tried by military courts or international military
4 courts or the warring states. This is logical and just because the
5 military prosecution and military justice system is there to deal with the
6 army and has the best knowledge of military organisation. I personally
7 feel that justice and law would be satisfied only if I were tried by a
8 military court of law, that is to say, generals who have taken part in the
9 civil wars."
10 What do you want to say about that statement?
11 MR. PITRON: [Interpretation] I remember my client having said
12 this. As you have just recalled, Mr. President, that comment was made
13 during one of the first hearings that took place a few months after his
14 being in detention, in a completely different context than the one we are
15 in today. At that time, no guarantee had been requested or even
16 considered. The General was not aware of any of the exhibits in the case
17 file, practically none. With him we hadn't yet had the discussions which
18 we've been having over the past several months, and I think that I can say
19 very sincerely that the measure of the charges against him and this trial,
20 all of this was unknown to him.
21 From January 2000 to January 2001, we have seen 12 months going
22 by, 12 months of incarceration; 12 months of isolation; 12 months of
23 reflection; 12 months during which the authorities of Republika Srpska
24 were asked to provide guarantees; 12 months which, in my opinion, mean
25 that one cannot say today to the General that he said what he said and
1 then hold him -- criticise him for that. One really could ask him
2 directly. That might be the best thing to do.
3 JUDGE HUNT: It's a matter for you, Mr. Pitron.
4 Now, Ms. Korner, I had not asked you whether you proposed to lead
5 any evidence because you had filed nothing in answer to the Scheduling
6 Order. So what would you like to say?
7 MS. KORNER: I don't -- we certainly are not calling any
8 evidence. I think that our submissions have been made very clearly in the
9 written response and there's nothing further I wish to add.
10 JUDGE HUNT: There is something in your written response that I
11 would like to ask you about. I realise these things are put into a
12 computer and once it's in a computer it appears to gain some authority
13 which it probably does not deserve, but the case of Neumeister and
14 Austria, to which is referred in all of these cases, once read, simply
15 does not support the assertion made by the Prosecution, and yet it's
16 repeated again and again even after we drew attention to the error.
17 MS. KORNER: I noticed, Your Honour, after -- it's not meant to be
18 a defence. It's our error. It was done very speedily. The application
19 arrived just before the Christmas break, and as Your Honour rightly said,
20 a lot of this is cut and pasted from what's ever in the computer.
21 I had overlooked the fact that Your Honour had already made some
22 trenchant remarks about us quoting this case, and as a result of the
23 speed, it went in. It's been the standard response.
24 JUDGE HUNT: Perhaps somebody will now cure the problem by
25 changing the precedent in the computer.
1 There's nothing further you want to add?
2 MS. KORNER: There is not.
3 JUDGE HUNT: Thank you. Well, the Trial Chamber will reserve its
4 decision on the application for provisional release. Hopefully we'll be
5 able to give it next week. Now, the Status Conference.
6 [Status Conference.]
7 Now, Ms. Korner, may I ask you about your justification document.
8 MS. KORNER: Yes.
9 JUDGE HUNT: We do have some concern that there seems to be almost
10 a deliberate myopia about this which has to be faced up to.
11 The third -- can I take you to the third protective measures
12 decision, and paragraph 9 where we attempted to explain to you what should
13 be disclosed inter partes in such an application.
14 In the first paragraph of the example we gave, we said that the
15 witness lived in a municipality in relation to which a particular agency
16 had reported that there is presently a high risk of retaliation if it were
17 known that a Bosnian Muslim was to give evidence against a Bosnian Serb.
18 And then after the example had been given, we said the details could then
19 be completed on an ex parte basis which would identify the municipality
21 Now, in your justification document, you ignore that, and you say
22 what we are asking you to do is to reveal to the accused the municipality
23 in which the witness lives, and having set up that straw man, you then
24 proceed to knock it over.
25 MS. KORNER: Well, I'm afraid Your Honour is going to have to
1 direct me.
2 THE INTERPRETER: Microphone, please.
3 MS. KORNER: I'm afraid Your Honour is going to have to direct me
4 to the passages Your Honours has in mind. I received a communication from
5 Mr. Bohlander which was, I understand, copied to Defence counsel, saying
6 that we were not complying with Your Honours' ruling, and it may be that I
7 am missing something, but I thought that we had complied with Your
8 Honours' ruling as far as we were able for the reasons we set out very
10 One of the difficulties which Your Honours' proposed, as it were,
11 blueprint for how we should deal with this was that by identifying the
12 agency which had dealt with the particular municipality, that taken into
13 junction with the details that remain in the unredacted version could
14 identify the person.
15 JUDGE HUNT: Well, let's just take that one by one. The Office of
16 the High Representative has provided a report which you have given us
17 which deals with all - if not all, most - of the municipalities in the
18 Republika Srpska. So there would be no problem in referring to that
19 report because the only argument you put up about naming others is that
20 they deal only with some municipalities. So there would be nothing wrong
21 or there would be nothing that could possibly identify a person by
22 reference to a report of the OHR.
23 MS. KORNER: Well, I mean, Your Honour, I'm looking now at the
24 various witnesses.
25 JUDGE HUNT: Yes. Well, you see, just let me finish what I was
1 saying. I said I would take it bit by bit.
2 In paragraph 6 you deal with what your concerns with are, and
3 you're talking about the premature disclosure of such information. And on
4 page 5 of your response -- your document, you say, "It is the
5 Prosecution's submission that the information which is provided ex parte
6 may be used by these individuals if it were disclosed to identify the
7 witnesses or confirm their identity, and to determine or confirm that the
8 witnesses or their families are or will be returning to a specific
9 location in Republika Srpska."
10 Now, if there's one thing that the example we gave you made clear,
11 that would not be revealed at this stage.
12 MS. KORNER: Yes.
13 JUDGE HUNT: Well, now, that seems to me to make it fairly clear
14 that if you did what we had asked you, which was to indicate that a
15 particular witness lives in, works in, proposes to return to, or has
16 business connections with a municipality, without identifying it, except
17 to say that it is one of the municipalities of which the OHR has said
18 there are problems for proposed Muslim witnesses. Now, that seems to me
19 to be so simple that your submission that you cannot comply with it could
20 not honestly be held.
21 All you have done in your document, despite everything we have
22 said to you in the third protective measures decision and elsewhere, is to
23 say that each of these witnesses is a person who will be giving direct
24 evidence against the accused, as if to say that was the end of it. You
25 have revealed nothing else. You have not given the Defence any
1 opportunity to apply its mind to whether they object to or accept the
2 protective measures you seek.
3 MS. KORNER: Well, Your Honour, can I -- I'm sorry, thank you.
4 Can I take Your Honour to the proposed blueprint that Your Honour
5 gave on page 5 of Your Honours' -- of this Chamber's decision.
6 JUDGE HUNT: Yes. Yes.
7 MS. KORNER: Your Honour stated that one of the complaints was
8 that we hadn't even said to which ethnicity the witness belonged, so we
9 dealt with that in all cases. We gave further information about the type
10 of person and the type of evidence that he was anticipated to give. In
11 fact, there were only two, I think, of the witnesses who, it was
12 suggested, would give direct evidence against either defendant. I'm just
13 checking that.
14 JUDGE HUNT: I would have thought myself that the most important
15 point you could make in support of your application to delay the
16 disclosure of the identity of the witness is that that witness is in
17 danger. That's what the rule refers to.
18 The Defence has been given no idea of that from what you have put
19 in your document.
20 MS. KORNER: No, because if we specify -- other than -- I see Your
21 Honour's point, that we could have merely referred to the OHR document as
22 a whole without referring to any of the other.
23 JUDGE HUNT: That is abundantly clear. You couldn't have read it
24 any other way.
25 MS. KORNER: Yes. But the actual specification of the actual
1 dangers, Your Honour, we submitted in the ex parte motion, would identify
2 or could identify that.
3 JUDGE HUNT: The letter that Mr. Bohlander gave you identifies
4 precisely what it is we want to hear from you as to why we should not
5 disclose it to the Defence to enable them to make submissions, and that is
6 that the witness either lives in, goes to work in, intends to return to -
7 or some other expression, I've forgotten what it is - a municipality which
8 has been described by the OHR as presenting difficulties for Muslim
9 witnesses against Serb -- Bosnian Serbs, without identifying the
11 Now, your response, I understood, was that's all dealt with in the
12 motion. It's not dealt with in the motion. The motion doesn't even begin
13 to grapple with that issue.
14 MS. KORNER: If that's what Mr. Bohlander told you, then I have to
15 say that is an inaccurate representation.
16 JUDGE HUNT: Well, what is your response?
17 MS. KORNER: Your Honour, I said I did not understand, and I
18 said - it may well be me - what it was, what further information Your
19 Honour wanted than that which was contained in the motion.
20 JUDGE HUNT: Well, I do not understand how you could possibly
21 understand it in that way.
22 MS. KORNER: Well, Your Honour, it may well be that I have failed
23 to understand with chapter and verse. But if Your Honour's ruling is that
24 what must be added into the justification are the words "and proposes to
25 return to a municipality which is the subject -- which is recorded in the
1 report from OHR," and we have not done that, Your Honour, then I'm sorry,
2 and that can be done.
3 JUDGE HUNT: There seems to be a continual series of apologies
4 which I am becoming very distressed about.
5 The Prosecution has been dealing with this case for over a year
6 now, and I would have expected that you would have a better grip on what
7 this is all about; and this describes it, and I really mean it, a
8 deliberate myopia as to what the issues are. There seems to be a
9 particular problem with this particular Prosecution team and the issue of
10 protective measures which causes you to lose all perspective about this
11 case. Now I think we are entitled to a better assistance than we're
12 getting, and we have to apparently keep drawing your attention to these
14 Now, either you do it or we do it, but I think that unless the
15 defendants are given that particular material and are given the
16 opportunity of making submissions in relation to it, then we cannot make a
17 proper decision, which means we will simply order you to disclose the
18 material or the names of the witnesses.
19 MS. KORNER: Your Honour, I do not see that Your Honour -- Your
20 Honour rules that. I do not see how it would assist the Defence to make
21 submissions to say in one sentence, "This witness proposes to return," or
22 whatever, "to a particular municipality which comes within those mentioned
23 in the OHR reports." How does that help them further?
24 JUDGE HUNT: Because it would know the basis upon which we may
25 grant you the protective measures you seek. And they have had no
1 opportunity of understanding that, or of making any submissions about it.
2 I don't know what submission they could make.
3 To my own -- from my own point of view, it's a good submission to
4 make, that a person who is living in the area and who would be the subject
5 to possible violence within that area if his or her identity is revealed,
6 I think that's the best point you can make. If you're not going to make
7 that point and you don't want us to consider it, then your application
8 will probably, necessarily, fail.
9 MS. KORNER: Your Honour, I think one of the difficulties was when
10 we were dealing with this matter is that when you looked at the body of
11 the statement which is wholly unredacted, all that has been redacted - the
12 facts and what happened are there - is the identity, is that by saying a
13 witness proposes to return to a municipality -- let us take, for example,
14 and I'm picking no particular witness, Kotor Varos, thereby the witness
15 comes from Kotor Varos, and it would not be very difficult for any
16 inquiries to be made as to who this witness was.
17 JUDGE HUNT: Well, that's not what you've asserted and I think --
18 MS. KORNER: It is.
19 JUDGE HUNT: I think you would have to give us a bit more chapter
20 and verse of that one.
21 Is this not part of some galloping paranoia. It seems to me that
22 you could take this to any length. We have to balance the rights of the
23 accused against the Prosecution. If the Prosecution is dissatisfied with
24 our statement that a witness has to be disclosed, then your answer is you
25 will not call that witness.
1 We are not here to ensure the Prosecution can present the best
2 case. We are here to ensure that the Prosecution presents a case which
3 the accused can fairly meet.
4 MS. KORNER: Your Honour, can I take what Your Honour has just
5 said in stages, please.
6 First of all, that is the point that we did make in the motion,
7 that because of the paperwork that returnees have to fill in, if we say
8 that a witness in the party's motion is intending to return to a
9 particular municipality, not in all cases but in many, and it will
10 identify the witness at this stage. And we say that, Your Honour, that is
11 the point we were making in paragraph 8, page 5 to 6. Can I take that as
12 the first point.
13 The next point that Your Honour accuses - and I'm taking this as a
14 personal attack on me - is of paranoia in respect of witness protection,
15 Your Honour, the situation in the Republika Srpska and other places, Your
16 Honours has seen for yourselves from the reports, is not a policed,
17 civilised country in the sense from the jurisdictions in which Your Honour
18 and I come from.
19 I follow the words of the Statute. I follow the words of the
20 rules --
21 JUDGE HUNT: You proceed, Ms. Korner.
22 MS. KORNER: -- which enjoins upon the Prosecution to seek
23 protection for victims and witnesses who may be possibly endangered by the
24 fact that they're coming to give evidence against these accused.
25 Now, if Your Honour will just for a moment let me develop this,
1 these accused are, with the exception of one other trial in this building,
2 as high as it gets. The guarantees, the like which have been made for
3 General Talic, show how importantly the Republika Srpska and others regard
4 the acquittal or, even better, the fact that this case does not come to
6 When we are explaining to witnesses the nature of the men against
7 whom they are being asked to give evidence directly or indirectly, if they
8 are told, "Your identity will be disclosed to the Defence immediately,"
9 not just within the time limits before the trial, the response, as Your
10 Honour can imagine, is very often, as we've already explained to Your
11 Honour, that they will not testify. Now, Your Honour, without witnesses
12 testifying, there will be no trials.
13 We are not asking to withhold the names, the identities of the
14 witnesses, in perpetuity. All that our request at the moment is is for
15 delayed disclosure with such time as Your Honour orders, in however many
16 days or months before the trial or the witness is called, those names will
17 be disclosed. For the moment, I am acting no more than in accordance with
18 the Rules and the Statute of this Tribunal. It is a balancing act. It is
19 one which in the end result comes down in favour of the accused so that
20 they do get the names. For the moment, Your Honour, our application is
21 simply that we may delay disclosure for witnesses who have a genuine and
22 supported fear by independent evidence of what may happen to them.
23 JUDGE HUNT: But the way you have composed your justification
24 document, the accused do not even know that these persons are either
25 living in or may return to or have business with Republika Srpska or, in
1 particular, the municipality nominated by the OHR document as a dangerous
3 That's what I am concerned about, that having spent so long
4 explaining to the Prosecution in these various protective measures
5 decisions, you ignore it.
6 MS. KORNER: Your Honour, we did not ignore it.
7 JUDGE HUNT: Yes, you have. And I take into account everything
8 you've said, but whatever you've said and you've conceded that you have to
9 apologise for not having given that information. So we have lost all this
10 time to have to explain it to you in words of few syllables so that it
11 finally sinks in.
12 Now I'm sorry to be fairly brutal about it, but this is not the
13 first time that we have had to do this to the Prosecution in this trial.
14 Now, the next thing that I want to raise with you is this:
15 Bearing in mind that this trial, depending upon the results of the United
16 Nations elections, may get under way either in May or June, the amount of
17 time that the defendants are going to have to investigate is rapidly
18 narrowing, and whilst you may talk about days before the trial, depending
19 upon the number of witnesses whose identity will not be revealed at this
20 stage, they are going to require a considerable amount of time to
21 investigate those. And as we said, I think back in the first protective
22 measures decision, it's going to be a lot longer than 30 days, which you
23 had suggested would be sufficient.
24 MS. KORNER: Your Honour, may I just give Your Honour the figures
25 so that Your Honour has some idea of -- there are, in fact -- so far we
1 have disclosed some 88 witnesses in some shape or other. There are of
2 those -- and if I've got this wrong I will be corrected by Ms. Erasmus
3 because she's been dealing with the disclosure. There are only nine
4 witnesses who have had details of their identity redacted. No. Sorry.
5 JUDGE HUNT: We've dealt with more than nine already.
6 MS. KORNER: I'm sorry. Out of the -- yes. Out of the 88 -- I'm
7 sorry, 87, I beg your pardon, 68 have been disclosed unredacted, except
8 for the current whereabouts, which Your Honour gave leave to redact.
9 Eleven are the subject of protective motions, and -- would Your Honour
10 forgive me.
11 [Prosecution and case manager confer]
12 JUDGE HUNT: You've still got eight to go.
13 MS. KORNER: Yes. And nine are people that we have informed the
14 Defence that we do not intend to call. Your Honour, some of those, and I
15 find some difficulty in sorting it out, as Your Honour does, because of
16 the separate motions, are the subject -- Your Honour has ordered disclosure
17 and they are the subject of an appeal which, at the moment, we've had no
18 notification of at all.
19 JUDGE HUNT: I understand that that is not too far away, but I
20 don't know what's going to happen. But I don't want there to be any
21 settling back and waiting for the Appeals Chamber to deal with these
22 matters. We've got to get on with them. And we're sticking
23 by our guns until we are told by the Appeals
24 Chamber that we are wrong. Now, we're
25 entitled to do that; you're not.
1 Now, that leads me to the next matter I want
2 to raise with you for the Status Conference.
3 Back in November of last year, you will remember
4 that I had something to say about the form
5 of the indictment, and you said well, then you would take
6 the blame for your ignorance of the Rules and
7 the rulings, although you did suggest
8 at one stage that you may be lucky
9 enough to have another Trial Chamber hear the case.
10 I did remind you that we're deciding the Rule 72
11 motion and not some other Trial Chamber, so
12 that what we have said in Krnojelac is what we're going to apply. And I
13 warned you back on the 17th of November to start getting ready -- your
14 indictment ready with the detail in it which the Krnojelac cases require.
15 Now, the decision on the Rule 72 motion is being held up, as we
16 have earlier indicated, until the decision in Celebici on cumulative
17 charging. That is a very small item from the point of view of redrafting
18 an indictment. You either put them in the alternative or you leave them
19 as cumulative charges. So that when this decision is given, which
20 will be at the end of this month because Celebici is coming out
21 on the 20th, you will be given a very short period to file
22 a further amended indictment.
23 So I'm giving you warning that it may be something like two weeks,
24 which means we'll have the indictment, one hopes, a proper indictment, in
25 the middle of March.
1 If this case is due to begin sometime late in May, you will
2 probably be required to disclose the names of these witnesses two months
3 before the trial or at least most of them. There's one or two, I can see,
4 from what you've put in the ex parte material, which will require a
5 slightly later disclosure.
6 So this stand, principled or paranoid, whichever you prefer, is
7 over a very short period of time.
8 Now, there is one other matter that is in the wings, as it were.
9 The President has made an order. He's varied to some extent the order
10 which he made earlier, and in that he has asked you to -- I'm sorry -- he
11 has given you leave to make an application to this Trial Chamber for
12 further protective measures. That has now been filed. Has there been any
13 discussion with the Defence over this?
14 MS. KORNER: I've had no response. We've had no response to
15 this. Neither counsel has raised this with me in any letter. We've had
16 an exchange of letters about other matters.
17 As Your Honour will see, we're effectively asking for consistency
18 in the orders that are made.
19 JUDGE HUNT: Well, yes, but you've also asked us in effect to
20 resolve what you see to be some differences between Trial Chamber III and
21 the President. I thought that we'd made our position fairly clear when we
22 had the task delegated to us by Trial Chamber I as to the way in which we
23 would go about it. But you haven't suggested how we would fit in the
24 problem that appears to have been -- to have arisen between the President
25 and Trial Chamber III with the approach we took upon delegation from Trial
1 Chamber I.
2 MS. KORNER: Yes. I'm not sure that it really -- I think we
3 weren't really making a suggestion as such because we merely drew to this
4 Trial Chamber's attention that although Judge Jorda had made an order
5 which appeared to cover the Kovacevic material, so did Judge May, and it
6 wasn't clear because, of course, the new -- the change in the Rules
7 enjoins a judge to consult with the judge of the original Trial Chamber
8 because of the timing.
9 I don't think we were making a suggestion at all. We were
10 submitting to Your Honours that when making the orders, the order should
11 be consistent with the orders that you had already made in the other
13 JUDGE HUNT: Well, that wasn't clear, but now that I have got it,
14 I understand.
15 Very well then. Is there any matter that you want to raise in
16 relation to this Status Conference?
17 MS. KORNER: No, there isn't. Thank you.
18 JUDGE HUNT: Thank you very much.
19 Now, Mr. de Roux or Mr. Pitron, do you want to say anything about
20 what Ms. Korner has said first of all?
21 MR. DE ROUX: [Interpretation] Mr. President, you've said very much
22 what the Defence believes in respect of this case, the difficulties in
23 which we find ourselves in order to carry out our task, because for months
24 now we are in this issue -- dealing with this issue of protected witnesses
25 or not protected witnesses. You've been told that 68 names of witnesses
1 have been provided. That is correct, but one must also know the
2 significance of the witness. Among the 68 that were disclosed, there are
3 well-known professors who will give us the history of the Balkans and then
4 witnesses about whom we know nothing.
5 Despite the principle, clearly stated President Jorda, we received
6 a letter from Ms. Korner. That was on last Monday. We haven't yet
7 answered because it was Monday. And I believe that -- well, as regards
8 the fundamental matter here, the fundamental document which is the
9 indictment, the indictment, this is not the third version and we are still
10 waiting for the third version.
11 You say to us that the Tribunal - and we take note of that with
12 pleasure, by the way - that we will begin in May. The trial will begin in
14 JUDGE HUNT: I said subject to the elections. If one or other or
15 all three of us are not re-elected, of course there will be a completely
16 different situation. But certainly we hope that we will have disposed of
17 the current trial which is ahead of you sometime in May, we hope.
18 MR. DE ROUX: [Interpretation] Life is frequently made up of
19 elections and successes in elections. Having said this, I believe that we
20 are still in the same position, Mr. President. I cannot go back to what
21 you very clearly said, but there was last point which you did not take up,
22 which is the issue of exculpatory material.
23 The Prosecutor recently told us, about ten days ago, "Tell me what
24 exculpatory documents you're looking for." I believe that the Rules of
25 Procedure and Evidence state that when there are exculpatory documents in
1 the case filed, the Prosecutor must disclose them to the Defence. We turn
2 the situation around now and we are asked to ask for exhibits that we
3 don't know about because in the -- that are among the Prosecutor's
4 documents. And then they say, "Which are the ones that you want? Which
5 are the exculpatory documents that you want?" That is the third strange
6 way that the Prosecution has of taking this case file. And we would like
7 on this point of exculpatory documents and in accordance with the Rules of
8 Procedure and Evidence, if there is exculpatory material, if the
9 Prosecutor has such documents, then it should please give them to us.
10 Thank you.
11 JUDGE HUNT: Ms. Korner, you have told us in the past how you have
12 teams of people upstairs searching through everything in the files. It is
13 your obligation.
14 MS. KORNER: Can I read the letter that was written to both
15 Mr. Ackerman and Mr. de Roux and Mr. Pitron?
16 "As you are aware, the Prosecution is under a continuing
17 obligation under Rule 68 of the Rules of Procedure and Evidence to
18 disclose exculpatory material, evidence. We continue to review the
19 materials for Rule 68 exonerating evidence based on our understanding of
20 what might be exonerating or mitigating. If there is any area or type of
21 material of particular interest to the Defence, please let us know and we
22 will instruct our reviewers to search for this material."
23 Your Honour, contrary to what Mr. de Roux said, he did receive a
24 reply from his partner, Mr. Pitron, in terms which I do not consider were
25 particularly polite, but that is another matter.
1 Your Honour, the situation is we are searching all the material
2 with reviewers for anything that to us seems obviously is Rule 68,
3 exonerating of the charges which are in the indictment. But there may be
4 other matters which the Defence would wish us specifically to search for
5 about which we know nothing because, of course, we do not know what the
6 defence is.
7 JUDGE HUNT: That's what I was going to say. You can proceed only
8 according to what you understand to be the issues.
9 MS. KORNER: That's right.
10 JUDGE HUNT: And when there is a pre-trial brief filed by the
11 Defence, you may have to do some more work, but until then, you can only
12 do what you can about what you know.
13 MS. KORNER: Correct.
14 JUDGE HUNT: That's accepted. But over this long period of time,
15 has there been any exculpatory material found?
16 MS. KORNER: Found and disclosed.
17 JUDGE HUNT: And you are continuing to do that.
18 MS. KORNER: We are.
19 JUDGE HUNT: Your letter, if I may say so, would have been better
20 expressed simply by saying, "You tell us what issues you see being raised
21 in the trial, and we will keep those in mind when we're looking at the
23 MS. KORNER: Your Honour, that's one way of putting it. We hoped
24 we were putting it rather more delicately.
25 JUDGE HUNT: I think the time for delicacy has passed in this
2 Very well. Those are the matters on behalf of General Talic.
3 Now, Mr. Ackerman, may I draw your attention to the fact that we
4 have received no response from you to the "justification" document.
5 MR. ACKERMAN: Yes. That's deliberate, Your Honour.
6 JUDGE HUNT: As long as we understand it. If you don't want to
7 put something on, then we don't wait for it.
8 MR. ACKERMAN: Okay. I don't want to put anything on with regard
9 to that. This whole issue, in my mind, is getting out of hand and is
10 going to solve itself, it seems to me, before the Prosecution permits the
11 Trial Chamber to solve it just by a matter of the trial starting.
12 In any event, I do have some matters that I want to mention very
13 briefly. I must bring to the Chamber's attention what is now becoming,
14 because of your announcement about an impending trial date, a matter of
15 significant concern. There are documents that we have not been furnished
16 in extraordinary large numbers, that has not been turned over to us, and
17 those documents are probably crucial in terms of our preparation for the
18 trial of this case.
19 One group of those documents are a group of documents that were
20 seized by the Prosecution from the CSB in Banja Luka. I was told at one
21 point that those documents had been scanned, were on CD-ROM, and would be
22 turned over to me within a matter of days. That was back, I think, last
24 I was then told that a mistake had been made and that among the
25 documents, they had discovered some that were sensitive which should not
1 be turned over to me, which I strongly objected to, as you can imagine.
2 But then something happened and the process had to be restarted, and I'm
3 given to understand that they started rescanning all the documents in
4 November, and that that process is still going on, and that there may be
5 as many as 25.000 or 30.000 pages of material that we have not ever had a
6 chance to see; and when we do finally get it, it will all be in BSC, not
7 translated, and I'll then have to take the one person that the registry
8 permits me to have and put her on that series of documents, to go through
9 them and bring to my attention any of them that are relevant and useful
10 for my defence of this case. And it could very well be that one of those
11 documents will be relevant and useful to cross-examine the very first
12 witness that the Prosecution would call in the case.
13 I understand, without a great deal of knowledge, that there are
14 also significant other discovery documents that have not yet been
15 furnished to the Defence so that the wealth of material that needs to be
16 gotten around is significant. And because of the way things keep getting
17 delayed - and I won't blame anyone for this, I think a lot of it is just
18 the mechanics of how things get done in the Office of the Prosecutor - but
19 because of these delays I'm real fearful that I will not be able to stand
20 before Your Honours in May or June and tell you that I am ready to try
21 this case, because if I'm -- I've probably looked at less than half of the
22 material that will be supplied to me before this case begins. So I'm
23 becoming extraordinarily concerned about those discovery issues and how
24 those are going to get resolved.
25 And with regard to the witnesses, my records indicate that there
1 are 22 witnesses whose significant information with regard to whom is
2 still outstanding, so we've not really been able to begin any kind of
3 investigation with regard to any of those particular witnesses, so that is
5 There's just a great deal in the future before this case can start
6 and that I can feel comfortable saying to Your Honours that I am prepared
7 to try this case on behalf of my client and to do any kind of an adequate
9 As Your Honours know, I am also at an additional disadvantage:
10 I'm not permitted to have a co-counsel. The registry won't let me have a
11 co-counsel, so I don't have anybody helping me. I'm basically doing this
12 on my own. I do have some people working in Republika Srpska but not in
13 the sense that a co-counsel would be working on this case. They are more
14 doing investigative work and helping me sort through the documents that
15 have not been translated. So I don't have someone sitting next to me with
16 regard to all these matters like Mr. de Roux and Mr. Pitron because they
17 are not beholden to the registry for the kind of assistance they can get.
18 So that's the position I find myself in, and I just wanted to
19 bring it to the Chamber's attention now rather than later, just to let you
20 know that I'm becoming concerned of that situation. Thank you.
21 JUDGE HUNT: In relation to that last matter you raised of
22 co-counsel, as I understand it, the directive has now been changed so that
23 co-counsel can be appointed to work on the preparation for the trial. I
24 think you were part of the group of counsel who persuaded the Plenary to
25 change the rules.
1 MR. ACKERMAN: Your Honour, I was, yes. I was one of the
2 agitators, and agitated fairly successfully, I think. It has been changed
3 and it's now a situation of whether one would elect to go under that at
4 the pre-trial stage of this case. If I would elect to do so, then it
5 would simply basically divide the number of hours that I'm allotted
6 between me and another lawyer at this stage; it wouldn't give me any
7 particular assistance. I wouldn't get any extra hours, really.
8 JUDGE HUNT: Right.
9 Well, Ms. Korner, what about these documents. I remember these
10 CDs and your concern about the return of them, the value being something
11 like $15.
12 MS. KORNER: The particular collection that Mr. Ackerman refers to
13 was not put on CD because all the collections were being rescanned. It
14 had to take, it had to take its place, I'm afraid, in the queue.
15 JUDGE HUNT: Why was it necessary to rescan them? Are you
16 redacting those as well?
17 MS. KORNER: No. It was necessary to rescan them because a lot of
18 them were completely illegible the way it was done before. That's a
19 complaint that was raised.
20 JUDGE HUNT: May I just interrupt you to ask you about the number
21 of these documents. I remember Mr. Pitron describing the nature of a lot
22 of them, such as traffic problems in Republika Srpska and things. Are
23 these all to establish that the Crisis Staff had some form of control over
24 the affairs of Republika Srpska, or the area that became Republika Srpska?
25 MS. KORNER: I don't think Mr. Pitron's clearly explained what
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 he's talking about.
2 JUDGE HUNT: No, no. He was just remarking upon their apparent
3 irrelevance, and I'm wondering if you're using a lot of documents to prove
4 a particular matter of control of the Crisis Staff of various activities
5 in the area.
6 MS. KORNER: No. There are two -- there's been two forms of
7 disclosure, as it were. The first is that we are disclosing in hard-copy
8 form documents on which we intend to rely and documents which fall under
9 Rule 68. But we were asked under the terms of Rule 66(B) by both counsel
10 for full disclosure of the, what are called the Banja Luka collections,
11 that's documents seized from Banja Luka; and as a result of that, these
12 were the ones placed on CD. It includes the documents seized from the
13 headquarters of the 1st Krajina Corps which is of the greatest interest to
14 counsel for General Talic, and within that it includes all the documents.
15 So therefore, there are documents which are clearly not relevant
16 to us or to their defence, but we were asked for full disclosure, and
17 that's why the traffic violations and so forth.
18 With respect to the collection that Mr. Ackerman is concerned
19 about, there are two problems. One is that it isn't yet on disk ready to
20 be disclosed. The second is that, as he rightly said, this, above all
21 collections, contains what we term "sensitive material." We've exchanged
22 correspondence with Mr. Ackerman this week, and we explained what we were
23 talking about when we said "sensitive material." I don't think, as we're
24 in open session, it's helpful to detail it at this stage.
25 Mr. Ackerman objected to us removing documents from the
1 collections which we said were sensitive, and I undertook that when we had
2 removed them, they would be placed before Your Honour before the rules
3 which deal with public interest immunity, or whatever it's called here, so
4 that Your Honour could make the assessment.
5 May I say, as I explained to Mr. Ackerman, it's not that the
6 Prosecution has any desire or intention -- well, desire to withhold, it
7 has no interest, but it feels as a matter of public policy that it would
8 not be right to disclose these particular documents. The offer I've made
9 to Mr. Ackerman is that the documents are here and can be physically
10 searched through by him together with an interpreter. I appreciate that
11 takes up the time.
12 Your Honour, we are doing -- we appreciate that the trial is
13 getting closer, we appreciate this is a collection which is of interest to
14 the accused Brdjanin, and we're making the quickest efforts we can to
15 disclose it.
16 JUDGE HUNT: Is it not usual for the material upon which the
17 Prosecution relies to be translated?
18 MS. KORNER: Yes, but I think what Mr. -- unless I'm wrong, we've
19 already selected some documents which were disclosed some time ago, but I
20 think Mr. Ackerman wants the whole collection so that he can make a search
21 on CD.
22 JUDGE HUNT: They're not materials that you propose to rely upon;
23 you're merely giving them as part of the general disclosure?
24 MS. KORNER: We're giving them in response to the request under
25 Rule 66(B).
1 JUDGE HUNT: Yes.
2 MR. ACKERMAN: May I just very briefly, Your Honour --
3 JUDGE HUNT: Yes, Mr. Ackerman.
4 MR. ACKERMAN: -- give you just a short bit of history regarding
5 this series of documents we've just been discussing.
6 When we first began our investigation in Banja Luka, I instructed
7 my investigator to go to places like the municipal building and begin
8 going through documents housed there. We immediately found out the
9 Prosecutor had beaten us to it and had not simply taken copies of
10 documents, but had actually loaded up the official records of three
11 different agencies in Banja Luka and hauled them away. So the officials
12 in Banja Luka do not have any of their own documents any more, unless
13 they've been replied recently, so that made the Prosecutor the sole
14 repository of what we considered fruitful avenue of investigation. And
15 that being the case, I asked Ms. Korner to simply make all those documents
16 available so that we could do the task that we would have done in Banja
17 Luka had we had that opportunity. And therefore, they are not -- they
18 don't fall under those rules that require translation and all those kinds
19 of things.
20 JUDGE HUNT: I understand.
21 MR. ACKERMAN: They just happen to be substituting for Banja Luka
22 at this point the custody of the documents.
23 JUDGE HUNT: Have you made any representations to the registry
24 about the cost of translating them?
25 MR. ACKERMAN: I have no intention to translate any document from
1 those collections, Your Honour, unless I find that it is somehow useful.
2 And so I have a person, who the registry have authorised, to do nothing
3 all day every day but sit there and go through those documents one at a
4 time, which is what's going on. She's been engaged in that process with
5 the original CDs that we were given, and she's been doing that for three
6 months, and she's not anywhere near the end of the first collection, so I
7 suspect at that rate she will finish sometime in 2003.
8 JUDGE HUNT: Well, you may like to draw that to the attention of
9 the registry to see whether you can get some additional assistance, and
10 then if the registry understands that, it is difficult to see how they
11 could refuse a request for additional assistance.
12 MR. ACKERMAN: I think -- I agree with you. I think I could
13 probably get additional assistance if I needed it. Thank you.
14 JUDGE HUNT: Well, now, the only matter outstanding out of all of
15 this, Ms. Korner, is revealing the material that is presently filed only
16 on an ex parte basis. Are we going to leave it to you, or shall we simply
17 go ahead and reveal what we believe you should have revealed?
18 MS. KORNER: No. Your Honour, we will today add a further
20 JUDGE HUNT: I would not myself mind if you put them in the
21 alternative, that they either live there or propose to return there or
22 travel there, without identifying which particular witness falls within
23 each particular category. But it is that fact which is your strongest
24 point in favour of a delayed disclosure, but I think you're going to have
25 to do something along those lines, or we will simply just refuse it.
1 The other part that we raised in that letter was some witnesses
2 had already been threatened. Now, that to me is also a matter which can
3 be revealed without identifying the circumstances of the particular case.
4 MS. KORNER: No. Your Honour, that is the particular -- that is a
5 particular witness where --
6 JUDGE HUNT: I think there are two that are --
7 MS. KORNER: Yes, there are two. But those two, if we reveal that
8 they were threatened - that's why we put in the ex parte - because of the
9 nature of the report, it will become apparent. That's the one we were
10 being concerned about.
11 JUDGE HUNT: Perhaps you better tell us on an ex parte basis why
12 you say that because it's not apparent to me why you would not be able
13 simply to say that they had received threats. One of them says they knew
14 a witness in a particular case who had been threatened. Now, it would be
15 pretty hard to identify this witness from that, wouldn't it?
16 MS. KORNER: There's only been one case that would relate to that,
17 and it would be very easy, therefore, to identify the witness if you knew
19 JUDGE HUNT: Well, you'll have to explain that to us, I'm afraid.
20 MS. KORNER: I will, yes.
21 JUDGE HUNT: When can you give us that? Because we're not sitting
22 in Krnojelac this coming week, and if we can, we'd like to get all of this
23 out of the way in the time that we're giving the parties there to get on
24 with the case.
25 MS. KORNER: Could I say Monday?
1 JUDGE HUNT: Yes, yes, certainly.
2 MS. KORNER: Filing by 4.00 p.m.
3 JUDGE HUNT: And then from the -- well, only General Talic has
4 responded, but we would like a very swift reply or, yes, a response, I
5 think, a further response from you in relation to what is disclosed by the
6 Prosecution so we could make an order there.
7 I realise that you are entitled to wait for a version of it in
8 French, but bearing in mind that you probably are able to read it, I do
9 ask you on this occasion to not wait for the French version but get it to
10 us as soon as possible, because we do have - that awful expression - a
11 window of opportunity next week to get this out of the way.
12 Now, is there anything else anybody wants to raise? Well, thank
13 you very much for your assistance. We will now adjourn.
14 --- Whereupon the Status Conference adjourned at
15 12.13 p.m.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.