Tribunal Criminal Tribunal for the Former Yugoslavia

Page 474

1 Wednesday, 16 January 2002

2 [Open session]

3 [Pre-Trial Conference]

4 --- Upon commencing at 2.30 p.m.

5 JUDGE AGIUS: Good afternoon.

6 [The accused entered court]

7 JUDGE AGIUS: Registrar, please could you call the case?

8 THE REGISTRAR: Yes, Your Honour, this is case number IT-99-36-PT,

9 the Prosecutor versus Radoslav Brdjanin and Momir Talic.

10 JUDGE AGIUS: Yes. I welcome you all to this second part of the

11 Pre-Trial Conference. I particularly welcome you, Mr. de Roux, for being

12 present today. I think your presence is particularly needed at this point

13 in time because you will complement the whole picture before we bring it

14 to an end prior to the commencement of the trial. And before I proceed, I

15 would like to know from each one of the accused whether they are hearing

16 me in a language that they can understand.

17 Mr. Brdjanin, can you hear me in a language you can understand?

18 THE ACCUSED BRDJANIN: [Interpretation] Yes, Your Honour.

19 JUDGE AGIUS: Mr. Talic, can you hear me in a language you can

20 understand?

21 THE ACCUSED TALIC: [Interpretation] I can hear you very well, Your

22 Honour.

23 JUDGE AGIUS: So we can proceed from that. Appearances, please,

24 on the Prosecution.

25 MS. KORNER: Joanna Korner for the Prosecution, together with

Page 475

1 Andrew Cayley, senior trial attorney, who appears today before Your

2 Honour, so that Your Honour has the full senior complement of the

3 Prosecution, and assisted by Denise Gustin, case manager.

4 JUDGE AGIUS: Thank you. And on the side of the Defence for

5 General Talic?

6 MR. DE ROUX: [Interpretation] Xavier de Roux, from the bar of

7 Paris.

8 MR. PITRON: [Interpretation] Michel Pitron, attorney at the Paris

9 bar, assisted by Mrs. Natasha Fauveau.

10 JUDGE AGIUS: And for Mr. Brdjanin?

11 MR. ACKERMAN: Your Honour, I'm John Ackerman. I'm here on behalf

12 of Mr. Brdjanin, and the other person here with me is an interpreter.

13 JUDGE AGIUS: Thank you. So you will recall that at the last

14 Pre-Trial or the first part of the Pre-Trial Conference was held rather

15 recently, last month, on the 10th of December, to be precise, in

16 preparation of the -- for the trial which has been scheduled for the 21st

17 of January. You will also recall that on that occasion, we did not

18 conclude our travail, and we agreed to adjourn to today to deal with all

19 that remains to be dealt with prior to the commencement of the trial.

20 It's almost needless on my part to remind you that basically,

21 unless there is really the need for an extra session, this is the last

22 opportunity that we have to coordinate all our efforts and sort out all

23 the remaining problems before the start of the trial. So my intention is

24 to, like last time, appeal for your consideration, patience, and also

25 cooperation so that we try and conclude what we need -- what needs to be

Page 476

1 concluded today, within the shortest possible time.

2 I also realise that the last hearing took us four hours, which was

3 long, but it was also needed, anyway, because it gave me the opportunity

4 to get to know you better, and also sort of prepare a platform which was

5 good enough for both sides and the Court, and the Tribunal, to be able to

6 cooperate and go ahead with the trial. May I take the initiative and

7 introduce certain -- some information, give you some information about

8 motions, in particular, those which are outstanding, those which have been

9 very recently decided, and those which will be decided very soon, and

10 certainly before we start the trial on Monday.

11 There was a recent request, motion, by the Prosecution for the

12 joint hearing of evidence common to this case, Brdjanin and Talic, and

13 also Stakic. And the decision relating to that motion has been taken. It

14 was filed last Friday. The motion was rejected. I would imagine that the

15 Prosecution is aware of that decision already. I wonder if the Defence

16 have been served with a copy? You have.

17 So, basically, you know that there is no question of hearing

18 evidence -- evidence of witnesses common to both trials. But I

19 understand, and we will come to this later on, it is my intention to visit

20 the common terrain that exists between this trial and Stakic, which will

21 come at a later stage. And this is a matter which I suppose we will need

22 to discuss. In particular, I need to address the Prosecution in that

23 regard, being sure that cooperation will be forthcoming because it is in

24 the interest of the economy of justice and also in the interest of the

25 efforts that have been made in that direction by the Office of the

Page 477

1 Prosecution.

2 There is an appeal pending. Mr. Pitron, you know that the

3 determination of that appeal does not depend on me. But I have obtained

4 the necessary information, and I am confident that the appeal will be

5 decided in time before the commencement of the trial on Monday. So that

6 is something to await for, both on your part and as well on my part.

7 There are -- there is a motion -- two motions by General Talic;

8 one is to dismiss charges, and the other one for the dismissal of -- the

9 declaration of the entire pretrial phase as null and void. The first of

10 these two is basically ready. You will be served with the decision in

11 real-time. The second one, in the Tribunal -- in the Chamber's opinion,

12 deserves more attention, is being elaborated and will be finished before

13 Monday. And the copy of the decision will be communicated to you before

14 Monday.

15 There is also an outstanding motion -- I'm anticipating you will

16 bear patience with me. I am anticipating certain matters that I am sure

17 you would have raised in any event. So I am pre-empting some of these

18 issues beforehand so we can then go ahead as planned in the agenda that I

19 have prepared for today's meeting.

20 There is another outstanding motion filed by Mr. Brdjanin through

21 his learned counsel. It was filed on the 13th of December. And that

22 relates to an objection that has been raised with regard to Rule 92 bis

23 procedure. I don't need to go into details. Again, that is a matter that

24 has been studied thoroughly by myself together with the other two Judges,

25 Schomburg and Mumba. Until now, they are the other two Judges forming

Page 478

1 part of this Trial Chamber. And a decision will be forthcoming by Monday,

2 certainly not later than Monday.

3 Also, Rule 92 bis is a matter which will be revisited later on in

4 the course of this Pre-Trial Conference because we need to discuss a

5 little bit further.

6 There is an important piece of information that I wanted to give

7 you. Way back in May of last year, Mr. Ackerman, Mr. de Roux, and

8 Mr. Pitron, you were informed by the Prosecution that they had filed under

9 seal a confidential motion pursuant to Rule 66(C). You know what

10 Rule 66(C) is. I will not go into detail. I realised in the course of

11 preparing for this trial conference, at least from the records that I had

12 before me, that you had not been informed as to whether my predecessor,

13 Judge Hunt, who was pre-trial Judge until last month, or until a month and

14 a half ago, whether he had determined this issue or not. I am in a

15 position now to give you the necessary information which you are entitled

16 to certainly before the commencement of the trial because, however

17 relevant or irrelevant it may be, it's important to know.

18 After the filing of the motion on the 8th of May, 2001,

19 Prosecution filed a supplementary motion just over a month later, on the

20 15th of June of last year. You were also, according to the information

21 that I have, informed of the filing of this supplementary motion. There

22 were some correspondence exchanged between the pre-trial Judge, my

23 predecessor, and the Prosecution with regard to the content and substance

24 of the original motion and the supplementary motion. And my predecessor

25 gave his decision on a confidential and ex parte basis on the 3rd of

Page 479

1 October of last year.

2 His decision is as follows: He found that there was nothing to

3 demonstrate that the documents in question were likely to assist in the

4 case of either of your -- either of the accused. As a consequence, he

5 found that there was "no point in a minute examination in this

6 decision" - that's the decision that he gave - "of each document to

7 determine the validity of the Prosecution's claim that the disclosure to

8 the accused would either harm the interest of the state of the

9 country" - which is referred to in a confidential manner in the original

10 motion, and I won't repeat the name of the country for obvious reasons -

11 "or reveal the identity of vulnerable persons who would be put at risk."

12 However, with regard to three documents -- and I don't think it is

13 the case of referring to the identification of these documents simply

14 because of what follows -- my predecessor directed the Prosecution to

15 pursue the motion within 14 days of the filing of the last pre-trial

16 briefs of the accused for consideration to be given to disclosure pursuant

17 to Rule 68. It so happened that on 4th of December, 2001, the Prosecution

18 informed the Trial Chamber in a confidential ex parte memorandum that it

19 did not intend to pursue its application and would, as a consequence,

20 disclose the documents to the Defence.

21 So basically, I have put my conscience at ease in this regard, and

22 I have put you in a position at least you know how this matter was decided

23 by my predecessor. It leads me to put a very simple and straightforward

24 question, Ms. Korner, as to whether these three documents were eventually

25 disclosed to the Defence as indicated by yourself.

Page 480

1 MS. KORNER: Your Honour, they were. I should add, Your Honour

2 having read out a lot of this confidential ex parte motion in Court, that

3 we, of course, keep under review as the Defence develops anything that may

4 materialize.

5 And if it clearly becomes relevant to any stage, then we will seek

6 further guidance.

7 JUDGE AGIUS: Okay. Thank you. I suppose there is nothing on the

8 part of the Defence that you would like to add to close this particular

9 chapter at this stage? I think the matter is concluded in any case.

10 MR. DE ROUX: [Interpretation] [No interpretation]

11 JUDGE AGIUS: Thank you, Mr. de Roux.

12 Now, you were informed, barely a few days ago, like I was, that

13 the Prosecution filed a motion to redact certain documents. This was

14 filed, if I am correct -- anyway, the dates are not important. What I

15 need to inform you at this particular stage is that this is being taken

16 care of by myself with the assistance of my legal staff. I am going

17 through the documentation and a decision will be forthcoming before the

18 start of the trial. And of course, depending on that decision, you will

19 receive or not receive documents that have been redacted or not redacted.

20 I mean, that stands to be decided in due course, but I wanted you to know

21 that it's being taken care of and will be decided in the next few days.

22 By Friday, I think we will have a decision.

23 MS. KORNER: Your Honour, may I just mention in relation to the

24 particular motions which are connected, one of which Your Honour has

25 granted in relation to protective measures, it is a matter the Prosecution

Page 481

1 would like to revisit for one matter and Mr. Cayley will deal with it.

2 JUDGE AGIUS: In fact, I was coming to that motion or that

3 decision later on, and I realise that this is very much connected, and you

4 realise also that in deciding this motion for the redacted documents, we

5 had, of course, to take into consideration what we decided in regard to

6 the other motion for the protective measures. And I understand also that

7 there are other points that need to be raised and, of course, they will

8 receive all my attention.

9 MS. KORNER: I'm grateful.

10 JUDGE AGIUS: But I'm coming to that in due course.

11 MS. KORNER: While I'm on my feet, may I just ask, because Your

12 Honour is running through the outstanding motions, did Your Honour get a

13 copy of the five motions that were filed this morning by Mr. Ackerman?

14 JUDGE AGIUS: No. I have heard about them but I haven't seen them

15 yet, no.

16 MS. KORNER: Well, may I say this straight away to Your Honour, it

17 may be advisable if Your Honour were to be given copies immediately,

18 because they have a dramatic effect and would need -- they are something

19 that need to be decided straight away, I'm afraid, on the start of this

20 trial.

21 JUDGE AGIUS: Let's leave this for the moment until I will suspend

22 the hearing for some time, until I take proper cognizance of the

23 substance. More or less I see what they are and why you very rightly say

24 that they have to be decided in the very first place.

25 MS. KORNER: Your Honour, may I make it absolutely clear the

Page 482

1 reason I'm raising it now is the first witness --

2 THE INTERPRETER: Microphone, please.

3 MS. KORNER: The reason I'm raising it now -- I don't know how

4 long this conference is going to last, but the first witness who is

5 mentioned is going to be on a plane, at very large cost, from the United

6 States tomorrow if Mr. Ackerman -- if -- sorry, I'll start that one again,

7 unless Your Honour accedes to this motion that Mr. Ackerman has put in.

8 So it is something, as I say, I'm slightly surprised that Your Honour

9 wasn't given a copy this morning.

10 JUDGE AGIUS: No. This morning I had a very lengthy conference

11 in preparation for this hearing, and it may be my fault because documents

12 were coming in the tray, but I was not advised that there were new

13 documents. If I had been, I would have read them or gone through them in

14 the very little time that I had available. But I promise you, I will

15 suspend the hearing for a while and will take proper cognizance of them,

16 and if necessary to reconvene tomorrow morning, we will reconvene tomorrow

17 morning.

18 MR. ACKERMAN: I just wanted to make sure, Your Honour, that the

19 record would show that they were filed late yesterday afternoon, not this

20 morning. I filed them as quickly as I could after getting the

21 Prosecution's witness list.

22 JUDGE AGIUS: Thank you for that information, which actually -- we

23 are coming straight into that. A few days ago, or just two days ago,

24 actually, I received a copy of a motion by the Prosecution with regard to

25 the statement of the expert witness mentioned in that motion, to which I

Page 483

1 understand one of your five motions refers. I will just -- and I see also

2 there is also a reply, a response on the part of General Talic.

3 Have you received a copy of the response on the part of General

4 Talic?

5 MS. KORNER: Yes, Your Honour. It's not -- doesn't cause quite

6 the same problems because the only request is they want to cross-examine.

7 JUDGE AGIUS: But what is your reaction to it, before I enter into

8 Mr. Ackerman's motion?

9 MS. KORNER: Your Honour, as far as I understand, and I've read it

10 in French obviously, the attitude of General Talic's counsel is that they

11 want him here because they intend to cross-examine. Well, that's fine.

12 They are not suggesting a delay.

13 JUDGE AGIUS: But cross-examination is one thing and taking his

14 statement sort of as read is another.

15 MS. KORNER: Yes. The point that they make, as indeed did

16 Mr. Ackerman rightly, is that we didn't disclose until Monday of this week

17 two previous transcripts of evidence that he's given here before.

18 JUDGE AGIUS: Yes.

19 MS. KORNER: In addition to that, it is right to say, and I say

20 that straight away, his latest report, the translation into the Bosnian

21 language will be available on Friday morning. So, Your Honour, that's, as

22 I say, the real problem. The expert is about to travel here from the

23 United States.

24 JUDGE AGIUS: Yes, Mr. de Roux?

25 MR. DE ROUX: [Interpretation] Your Honour, as regards this issue,

Page 484

1 we have just received this very moment these materials from the

2 Prosecution. Obviously, I have not been able to familiarise myself with

3 them as of yet. I just want to say that this is something which has

4 become a habit here on the part of the Prosecution, to disclose at the

5 last minute masses of documents, some of which the Prosecution has had for

6 a long time. We have already objected to this way of operating. I have

7 no response to give to all those documents so long as I haven't read them,

8 and that will require some time, some time to read them, obviously.

9 Your Honour, since I have the floor, if you allow me, I would like

10 to go back to two points in the objections that we raised. You did say

11 that you were going to rule on those preliminary motions by Monday. These

12 are important preliminary motions, all the more so because the Prosecution

13 blames or accuses General Talic for having given orders allegedly to

14 subordinates or to -- orders that were not carried out by the

15 subordinates, and we still do not have the identity of the perpetrators of

16 the crimes and offences that have been put forward. This is very serious

17 for the Defence because we are responsible vis-a-vis those who carried out

18 orders. We don't know if there were people who were carrying out orders

19 that were given, who committed or didn't commit the various crimes. And

20 that I think that this point must be settled before the hearing because

21 this is part of the indictment, this is part of the substantive way which

22 my client stands accused, and we cannot properly prepare his defence so

23 long as this essential point on which the Prosecution has always shown

24 some reluctance to give information, despite the many questions that your

25 predecessor Judge Hunt put forward. The Prosecution never wanted to

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Page 486

1 respond to the questions and those essential questions. And that I think

2 this discussion has to be settled as a preliminary issue in accordance

3 with Rule 65 of the Rules of Procedure and Evidence of the Tribunal. I

4 thank you.

5 JUDGE AGIUS: Do you have a reaction to that, Ms. Korner?

6 MS. KORNER: Your Honours is going to rule on the two motions, and

7 I await the ruling.

8 JUDGE AGIUS: Yes. But in any case, this particular accusation

9 that is being thrown at you, that you have persistently sort of refused to

10 indicate the perpetrators or the agents, if you can call them agents, used

11 by -- or that the various accusations refer to.

12 MS. KORNER: Your Honour, this has been the subject, as

13 Mr. de Roux rightly says, of a number of discussions. Judge Hunt ruled,

14 and it has been echoed in a number of different cases, that where you're

15 dealing with high-level, as it were, officials, remote from the actual

16 scene of the crime, it is unnecessary to state in the indictment the

17 identity of the people actually committing the crime. This indictment has

18 been described as the "War and Peace" of indictments, and to do that would

19 make it war and peace and anarchy put together.

20 In the pre-trial brief, we have set out our case in 150 pages,

21 very clearly explaining what it is. In each of the statements, all of

22 which have been disclosed to the Defence in full, it sets out, where there

23 is an allegation of killing, who actually did the killing.

24 Now, of course, Your Honour, if I were ordered to do that, I could

25 go through each and every one of the statements and I could write out what

Page 487

1 I hope most people would be able to read for themselves.

2 JUDGE AGIUS: But in any case, it's more or less, in my opinion,

3 partly, at least, it has been visited already by my predecessor in some of

4 his decisions. And more or less, I think it will be addressed also in the

5 decision that I will be taking by the end of the week. So --

6 MS. KORNER: I should tell Your Honour that there is no other

7 indictment, or was not until this indictment, which contains the amount of

8 detail which is in this particular indictment.

9 JUDGE AGIUS: Okay.

10 We'll for the moment suspend the debate on the motion on the

11 expert witness until I go through a motion filed by Mr. Ackerman

12 yesterday, and go to something else.

13 MS. KORNER: Before Your Honour leaves that, could I just mention

14 one other matter: The motions themselves mentioned the names of the

15 witnesses.

16 JUDGE AGIUS: Yes, exactly.

17 MS. KORNER: Your Honour, I was going to ask, I appreciate that we

18 said that we weren't going to be seeking protective measures for these

19 witnesses in our list. The problem, however, is that occasionally

20 witnesses arrive and matters have changed and ask for protective

21 measures. So I would ask if there are future filings, that they be done

22 with the number which has been allocated to the witness rather than the

23 witness's name. And Your Honour, that number appears in the Rule 65 ter

24 statements.

25 JUDGE AGIUS: I would imagine that you will agree to that,

Page 488

1 Mr. de Roux? I didn't anticipate a no. So that will be sorted out.

2 I now suggest or propose to you to go through various points that

3 I have -- various matters and issues that I have prepared, some of which

4 follow up from the previous Pre-Trial Conference, and some of which are

5 new. And I will start with those which are a follow-up of what we

6 discussed last time.

7 One matter that was discussed here in this Chamber was with regard

8 to any facts that, after due consultation, you may agree upon, facts in

9 issue obviously that you may agree upon. Has there been a -- some sort of

10 development in this area?

11 MS. KORNER: I'm sorry to have to tell you, Your Honour, that

12 despite Your Honour's plea that we should cooperate, it has not been

13 possible to do that, for a number of reasons. I wrote a letter requesting

14 a meeting, which was declined, or various conditions were imposed on

15 the -- if there was to be a meeting, which were in my view wholly

16 unacceptable. It included dropping charges if there was to be a meeting.

17 Your Honour, we served on the Defence a document which I will now

18 hand in to Your Honour. Your Honour, I have a copy here. Your Honour, I

19 could go through what the Defence are prepared to agree; it amounts to

20 virtually nothing. I think about the only fact that General Talic is

21 prepared to agree, or his counsel are prepared to agree, is in connection

22 with his biography, and not even that is agreed in full. The same

23 effectively -- although may I say Mr. Ackerman is prepared to agree a few

24 more, not very much.

25 JUDGE AGIUS: Mr. de Roux, if this is the position, let's not

Page 489

1 waste time on it. You know, I made an appeal last time.

2 MR. DE ROUX: [Interpretation] Your Honour, I don't want to waste

3 any time. We've got to be serious here. When an agreement is asked for,

4 one tries to retain a minimum of objectivity, and one does not ask in 15

5 pages for an accused to accuse himself. The points for which the

6 Prosecution was asking for agreements, obviously, was tantamount to a

7 self-accusation, and that cannot be part of an interpretation which is as

8 subjective, not only in respect of the facts but the very history of the

9 Balkans. I think we have got to be serious and reasonable. We cannot

10 agree to proposals that were made to us.

11 JUDGE AGIUS: Mr. Ackerman.

12 MR. ACKERMAN: I will be very brief. I need to tell you, as I

13 have told Ms. Korner over and over, there are numerous outstanding

14 translations yet in this case. There are many, many documents that I

15 can't read. There are many, many documents that my client can't read.

16 And that is a major problem in trying to arrive at any kind of agreement

17 with regard to anything that we might be willing to agree upon. It would

18 be irresponsible of me to start entering into any agreements at this point

19 until I know what this case is about.

20 It is frightening that we are going to go to trial on Monday, and

21 I don't know what's in these documents. And I should. To be a good

22 lawyer, I should. But I can't because the translations have not been

23 done. As we get into the witnesses, the problems are legion with regard

24 to the witnesses because the translations have not been done. You will

25 read in my motions that all the witnesses -- virtually all the witnesses,

Page 490

1 with the exception of two that are listed by the Prosecutor to be the

2 initial witnesses, the translations have not been done. My client can't

3 read their statements. I can't read some of their statements. How on

4 earth can we proceed?

5 That is a gross violation of Article 21.4 and the case law with

6 regard to it. And yet, we seem to be moving toward a trial start on the

7 21st with, I think, only two witness that could possibly be called because

8 they are the only two that we have been furnished the proper information

9 with regard. And I kind of resent being accused by Ms. Korner of not

10 being willing to cooperate with regard to agreements when it's the

11 Prosecution who has not given us the material that would make it possible

12 for us to do that in a responsible and reasonable way.

13 JUDGE AGIUS: Shall we leave it at that? I think, at this point

14 in time, I would rather not waste more time on this. More or less, it

15 will be an exercise in one trying to justify oneself, and let's leave it

16 at that.

17 MS. KORNER: I only want to say this: You'll see a list of

18 documents that Mr. Ackerman allegedly hasn't received. I think he's in

19 error about a lot of them. But it's not --

20 JUDGE AGIUS: This is what I mean, Ms. Korner. Because if we

21 start exchanging arguments and opinions on this matter, I can foresee it's

22 not going to come to an end quickly.

23 MS. KORNER: Your Honour, it doesn't matter. In fact, we have got

24 signed receipts from Mr. Ackerman for most of these documents. But the

25 point is, as I think I made earlier, it isn't so much those witnesses that

Page 491

1 matter at this stage. It is the expert witness.

2 JUDGE AGIUS: With regard to that, there is a very simple

3 solution; he will give evidence viva voce here in court. Forget about the

4 transcript. But then, of course, if I had in mind a time frame for the

5 next, say, three weeks, four weeks or whatever, I mean, that will have to

6 change obviously, because I want to push forward.

7 MS. KORNER: Yes. Your Honour, the point is, it is intended that

8 he should give evidence, but what -- the objection is that there is

9 insufficient time for them to consider the material, although I confess

10 that I find it quite surprising, because in essence, the expert has

11 testified on a number of occasions saying effectively more or less the

12 same thing. There are -- there are additions in this report which are

13 specific to this case, but the background he has testified about, I think,

14 on three separate occasions.

15 JUDGE AGIUS: Okay. Let's deal with another matter. Sorry,

16 Mr. de Roux? Please go ahead.

17 MR. DE ROUX: [Interpretation] But you see, this is an example. I

18 don't wish to enter into a polemics, but saying that this is a historical

19 expert used by the Prosecution who always gives his version of history,

20 that's interesting, one could say. This witness has already testified in

21 three other trials. Why have we not been served with his transcripts? We

22 received the day before yesterday 300 pages beginning with the year 600.

23 This is very interesting, but on these old facts of history, there are so

24 many counter-experts, specialists on the Balkans, who could testify. This

25 is very interesting, but it would be much simpler if we had received a

Page 492

1 copy of the transcript of the statement of this professor in this

2 Tribunal, as he has already testified three times.

3 JUDGE AGIUS: Okay. We will decide on that in any case.

4 Matters of disclosure. You will recall that at the last Pre-Trial

5 Conference, and throughout all the Status Conferences that have taken place

6 until then, the question of disclosure had come up. I would first refer

7 to disclosures under Rule 66(A)(ii) and I would ask for an update. Ms.

8 Korner, for example, just to give you a hand, during the last Pre-Trial

9 Conference, you had mentioned that it was your intention to call two

10 additional witnesses, namely an investigator and a witness with respect to

11 crime-based evidence. I will mention them one by one so you can answer or

12 give me information with regard to this one at least first.

13 MS. KORNER: Which one?

14 JUDGE AGIUS: The one I just mentioned.

15 MS. KORNER: The crime-based? In fact, Your Honour, there will be

16 no further statement.

17 JUDGE AGIUS: Okay. Then you had also informed the Tribunal that

18 due to translation delays, there were two statements that had not yet been

19 disclosed. Actually, it was translation from English into Bosnian

20 language that was still being awaited for. Any news about that?

21 MS. KORNER: Forgive me, Your Honour, I'm just trying to find

22 out. Well, Your Honour, I'm sorry, it's slightly more difficult because

23 we've been conducting witness searches, and other statements have come up,

24 but as I understand the position, all statements taken by the Tribunal

25 investigators have now been disclosed with translations.

Page 493

1 JUDGE AGIUS: Okay.

2 MS. KORNER: Your Honour, the difficulty is that I say this

3 sometimes and then it turns out that something slipped through the net,

4 but -- so I will do a double-check.

5 JUDGE AGIUS: Okay. All right. Next, you will recall the diary.

6 We had information forthcoming from the OTP and an explanation as to the

7 problems encountered at the time. I was informed on that occasion by you

8 that it was anticipated that by Monday, 21st January, only about 300 pages

9 would have been translated. Is that still the position?

10 MS. KORNER: If I understand it, yes.

11 JUDGE AGIUS: And will they be translated? Will they be ready,

12 those 300 pages?

13 MS. KORNER: We have already I think disclosed as -- we have been

14 getting them back in dribs and drabs and we have been disclosing them as

15 we get them back.

16 JUDGE AGIUS: Okay. And then in the course of the last Pre-Trial

17 Conference, you had also informed the Chamber that your office was still

18 conducting searches with respect to about over 100 witnesses --

19 MS. KORNER: Yes.

20 JUDGE AGIUS: -- who you had the intention to call, in order to

21 determine if these are mentioned in other statements or had made

22 statements to other authorities. At the time, that's in December, you

23 said 32 searches had been completed but not yet reviewed and 42 searches

24 were still to be completed. Can you give us an update on that?

25 MS. KORNER: Your Honour, the searches are still going on. We

Page 494

1 have had unfortunately the Christmas period intervening. We've disclosed

2 material in relation to each of the witnesses that we intend to call

3 relating to Banja Luka, but we are still completing the searches. In

4 other words, we are doing a double-check to make sure things don't slip

5 through the net.

6 JUDGE AGIUS: Okay. Before I close this particular part on Rule

7 66(A)(ii) disclosures, any of the Defence counsel would like to make any

8 comments in this regard as to what Ms. Korner has just stated? Yes,

9 Mr. Pitron?

10 MR. PITRON: [Interpretation] Yes, very briefly, Your Honour. We

11 have received a certain number of exhibits from the Prosecutor which we

12 are still receiving and apparently some of them have been in her

13 possession since July, 1997, but never mind. I understand that some

14 documents that will be disclosed are being translated and that they are

15 not ready yet. I understand, but I may be wrong, that there will be other

16 documents which we need to receive from the Prosecutor relative to

17 testimony from Banja Luka, the first testimony that we are due to hear.

18 So some have been received, some are being translated, we haven't

19 received them, and there are additional documents which we will need to

20 have, are still not in our possession and have not been disclosed to us.

21 JUDGE AGIUS: That is as much a problem -- that is as much a

22 problem to you, as I understand. I am fully aware how much of a problem

23 it is, but it's also a problem to the Prosecution, because --

24 MR. PITRON: [Interpretation] Yes, but I'm not prosecuting anyone.

25 I am defending.

Page 495

1 JUDGE AGIUS: I spent a considerable time of my career where you

2 are, so I know your problems.

3 I'm coming to Rule 68 disclosures now. Ms. Korner, again, I'm

4 sorry to ask you -- to make you have to stand up and sit down. You will

5 recall that during the last Pre-Trial Conference, you had informed me

6 that, more or less, you had completed the Rule 68 disclosures of all

7 documentary evidence.

8 MS. KORNER: I'm sorry, Your Honour, I think we said we had

9 completed all the obvious Rule 68 from the collections. We were making a

10 search, however, of other material.

11 JUDGE AGIUS: Yes. You had told me at the time that you were

12 still dealing with notes, as distinguished from signed statements, kept by

13 investigators of conversations with people plus reports of investigations

14 into Mount Vlasic and Bosanski Petrovac. That's the information that

15 results from your statement last time.

16 MS. KORNER: Your Honour, I haven't reread in detail --

17 JUDGE AGIUS: Don't worry, but what I actually want to know is

18 whether, with regard to what was pending then, there are still documents

19 which are -- have not yet been disclosed, or whether everything, to your

20 knowledge, has now been disclosed.

21 MS. KORNER: Documents that we have found containing Rule 68, that

22 we have found, and I emphasise that, and Rule 68 as best as we have been

23 able to guess it, because we don't know what the defence is, is -- has

24 been completed, but that the searches of notes and the like is still

25 continuing.

Page 496

1 JUDGE AGIUS: Okay. You just mentioned because you don't know

2 what the defence is. Incidentally, you will recall, Mr. Ackerman, that --

3 you may sit down for the moment. I will give you the opportunity. I just

4 want to deal with something important but which relates to Mr. Ackerman

5 more than anything -- anyone else. You had filed your pre-trial brief on

6 behalf of your client, and there had been an objection raised by the

7 Prosecution. That is being decided. In fact --

8 MS. KORNER: Your Honour, you've ruled.

9 JUDGE AGIUS: Have you been served with a copy? Okay. And in

10 this regard, and before I give the floor to Mr. de Roux, is there anything

11 -- or rather, leave that. Leave that. And I think I can give the floor

12 -- I'm having an afterthought on something, but I can visit that later

13 on. For the moment, I can ask Mr. de Roux to say what he was planning to

14 say.

15 MR. DE ROUX: [Interpretation] Very brief, regarding Rule 68, we

16 have received a certain number of documents on the 15th of January,

17 documents under Rule 68, on the 15th of January. And we learned at the

18 same time that the Prosecution investigators were questioning, in Banja

19 Luka, a certain number of individuals who could be witnesses, and we would

20 like to have the integral recordings of the investigations or interviews

21 conducted quite recently, which we are not aware of, as those interviews

22 occurred some 15 days ago, as far as I know.

23 MS. KORNER: Your Honour, we are doing exactly what we were

24 ordered to do last time by Judge Hunt, which is go through those

25 interviews and disclose anything in them which may be of Rule 68. That

Page 497

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1 will happen. It's simply a question the investigators are at the moment

2 re-listening to the tapes. Anything that is Rule 68 will be disclosed, as

3 we did with the last witnesses.

4 JUDGE AGIUS: With regard to, again, Rule 68 disclosure, is there

5 anything else that you would like to raise at this point, before I move to

6 something else? Mr. Ackerman?

7 MR. ACKERMAN: Maybe I'm confused. There were some interviews

8 done by the Prosecutor of several persons in Banja Luka, many of them who

9 were members of the Crisis Staff, and my recollection is that when we

10 discussed that in the presence of Judge Hunt, the Prosecutor said that

11 they were getting the transcripts done and would give us the transcripts

12 of those interviews as soon as they were completed. And I'm quite sure --

13 JUDGE AGIUS: It's not my recollection, at least from what I heard

14 during the exchange of views on this matter during the Pre-Trial

15 Conference in December in my presence.

16 MR. ACKERMAN: I'll read the transcript and --

17 JUDGE AGIUS: Because my -- and I have quite the vivid

18 recollection of what was stated, was that some tapes had been heard and

19 transcripts made ready, and they would be made available. Other tapes

20 were still not heard again, and they needed to be heard. And then there

21 was an assurance coming on the part of the Prosecution that whatever falls

22 under Rule 68 would be disclosed. However, I remember also that

23 Ms. Korner did not let the opportunity pass by without taking advantage of

24 it and remind you of your constant complaints that you were being

25 inundated with material under Rule 68 pretext irrespective of whether it

Page 499

1 was exculpatory or not.

2 Anyway, I mean, in order to lessen the burden, they would -- so in

3 other words, that's my vivid recollection. I stand to be corrected. As

4 usual, I am far from infallible.

5 MR. ACKERMAN: I think you revisited it more recently than the

6 rest of us probably, so I'm sure you're correct.

7 JUDGE AGIUS: Anyway, I take it as a commitment on your part,

8 Ms. Korner, that anything that needs to be disclosed under Rule 68 will

9 be.

10 MS. KORNER: I want to make it absolutely clear, we are not going

11 to disclose the full transcripts; we are going to disclose the Rule 68

12 material.

13 JUDGE AGIUS: You made that clear last time, and I think it was

14 taken as that, how it should be. I will move to reciprocal disclosure,

15 and you will recall that this was more or less a little bit hotly debated

16 last time. And more or less what we agreed upon is this: I suggested

17 during the last Pre-Trial Conference to you, Mr. Ackerman, in particular,

18 because this arose as a result of your pre-trial brief, and there was in

19 my opinion an agreement to the effect that there will be reciprocal

20 disclosure on a rolling basis.

21 What I want to know is if you have anything to tell me about the

22 current status of this rolling reciprocal disclosure.

23 MS. KORNER: Your Honour, I this morning -- sorry, this afternoon,

24 received a bundle of documents from Mr. Ackerman, which I understand is

25 part of reciprocal disclosure. Despite letters reminding counsel for

Page 500

1 General Talic of Your Honours' ruling, we've received nothing.

2 JUDGE AGIUS: Yes. Either Mr. Pitron or Mr. de Roux.

3 MR. PITRON: [Interpretation] We have sent 51 documents to the

4 Prosecutor, which obviously didn't arrive. They were sent yesterday or

5 the day before, and they will probably arrive within the same time limit

6 as the 500 pages that we received today.

7 JUDGE AGIUS: Are you aware of these --

8 MS. KORNER: Absolutely totally, wholly unaware.

9 JUDGE AGIUS: But you have no reason to doubt that they have been

10 sent, so it's a question of... You will have the same problem that the

11 Defence has. You will have to do a lot of reading between now and Monday,

12 and so will I.

13 MS. KORNER: Yes.

14 JUDGE AGIUS: Expert witnesses. This, I am going to come to later

15 on. Okay.

16 Forensic evidence. Again, this is a follow-up. You will

17 recall -- I will be very brief on this -- for reasons that appear to me

18 and to the majority of you to be very obvious at the time during the

19 past -- the previous Pre-Trial Conference, I had suggested that an

20 agreement on the formal proof of that was possible and that it would on a

21 prima facie basis at least wasn't likely to deprive the Defence from

22 anything, and there would still be the right of the Defence to ask for the

23 production of evidence with regard to any particular death of any

24 particular person. And on the part of Mr. Brdjanin, there was consensus.

25 And in regard to General Talic, Mr. Pitron had requested some time to

Page 501

1 think about it.

2 Are you in a position, or have you been busy reading the piles of

3 documents sent to you by the Prosecution?

4 MS. KORNER: Your Honour, it has been answered. That's the one

5 thing that we got an answer to.

6 JUDGE AGIUS: Okay.

7 MS. KORNER: They say they do not dispute the information but

8 reserve the right to do subsequently.

9 JUDGE AGIUS: That's good. So I thank the Defence Bench for --

10 Defence team for General Talic for the cooperation shown.

11 And witness from humanitarian organisations, you know that a

12 decision has been handed, which I suppose you have a copy of.

13 MS. KORNER: Your Honour, can we -- we want to revisit that issue,

14 and we would like to go into closed session for that.

15 JUDGE AGIUS: Yes. We will go into closed session now. More or

16 less, I have an indication of what is to be expected.

17 MS. KORNER: Your Honour, Mr. Cayley is going to deal with this.

18 JUDGE AGIUS: Okay, thank you.

19 Yes, Ms. Korner, private or closed? What do you prefer?

20 MR. CAYLEY: Mr. President, I think it should be in closed

21 session.

22 JUDGE AGIUS: Closed session, I would rather tend to agree to

23 that.

24 MR. CAYLEY: Private session essentially -- if we go into closed

25 session, then we have to pull the blinds.

Page 502

1 JUDGE AGIUS: I think it would be safer to go to -- because I

2 expect to -- I expect to hear things that I would rather -- I feel more at

3 ease if we are in closed session.

4 MR. CAYLEY: As you wish.

5 JUDGE AGIUS: Just one more minute before you start. I need to

6 dig up the decision. Yes, here it is.

7 [Closed session]

8 [redacted]

9 [redacted]

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11 [redacted]

12 [redacted]

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7 [Open session]

8 JUDGE AGIUS: Thank you for this document, Ms. Korner.

9 MS. KORNER: Your Honour, may I just mention, we have added to,

10 Your Honour, but I haven't -- because there doesn't appear to be much

11 opportunity to speak to the Defence, there is one witness that was missed

12 off the list that they've got, which is Witness 74.

13 JUDGE AGIUS: 74, yes. Incidentally, with regard to this list,

14 Mr. Ackerman, please follow me in this, I notice that 7.221, 7.64 --

15 MS. KORNER: I can tell you, Your Honour, which --

16 JUDGE AGIUS: Yes, 7.87. And 7.168.

17 MS. KORNER: 7.64, 7.99, 7.168, 7.87.

18 JUDGE AGIUS: Now, simply because we had the unfortunate filing of

19 these five motions before the filing of your list, may I suggest that we

20 find a quick way of going about it before Mr. Ackerman's motions get

21 further distributed, because obviously your motions refer directly to the

22 names of the persons. And with regard to those persons, now the

23 Prosecution is seeking protective measures.

24 MS. KORNER: No, Your Honour. In fact, this hasn't had general

25 distribution. The Registry very wisely got in touch with us when they

Page 512

1 received the motions, and although Mr. Ackerman hadn't asked for them to

2 be filed confidentially, they have been filed confidentially. They are

3 not available to the press office. At this stage --

4 JUDGE AGIUS: So it's not that big of a problem.

5 MS. KORNER: But only because, as I say, the Registry wisely asked

6 us about it.

7 JUDGE AGIUS: What further precautions need to be taken at this

8 stage? Because the motion for protective measures has not yet been

9 decided.

10 MS. KORNER: As I said, Mr. Ackerman looked at the list, clearly

11 saw that we weren't at this stage applying for protective measures, and

12 that is right.

13 JUDGE AGIUS: All right, so we are saved there. Okay, matter is

14 closed. So we have no problem there. But I will keep this list readily

15 available.

16 I think we will have a break now of 15 minutes. What's the usual

17 break? 15 to 20 minutes, and we will reconvene after that. Thank you.

18 --- Recess taken at 3.58 p.m.

19 --- On resuming at 4.30 p.m.

20 MS. KORNER: Before Your Honour continues with the agenda, may I

21 say that I'm happy to report that when I went upstairs in the adjournment,

22 I found placed on my chair a parcel which contained the documents that

23 General Talic's counsel has supplied us with.

24 JUDGE AGIUS: Fifty-one of them?

25 MS. KORNER: I haven't counted them, but Mr. Cayley is having a

Page 513

1 look. Your Honour, I think there was one other matter which I wanted to

2 raise in connection with that but I don't seem to have made a note. But

3 in any event, we do have the documents.

4 JUDGE AGIUS: Just before I move to what I had on my agenda, I'd

5 like to make a very quick reference to --

6 THE INTERPRETER: Microphone, please.

7 JUDGE AGIUS: I'm sorry. Yes, before we move to the other item on

8 my agenda, Ms. Korner, please, I refer you to one of the motions by

9 Mr. Ackerman referred to before; namely, that relating to the testimony of

10 the expert you intend to present on the first day of the trial. I have

11 read all five motions, but this is the motion that I would like to address

12 your attention to for the time being. Having read this and having read

13 your motion for the admission of the statement under Rule 94, which

14 arrived in my chambers I think yesterday --

15 MS. KORNER: Yes, I forgot when it was filed, but I think it was

16 last week sometime.

17 JUDGE AGIUS: There is an apparent discrepancy between what is

18 contained in your motion and what is contained in Mr. Ackerman's motion in

19 a sense that, according to what you state, Mr. Ackerman should have

20 received the statement way back in December, and you specify the date.

21 MS. KORNER: I did.

22 JUDGE AGIUS: And Mr. Ackerman is saying something completely

23 different. I suppose you have gone through his motion as I have. Later

24 on, I will be revisiting this matter, so perhaps if you could have someone

25 from your team that could dig up the documentation, the records that you

Page 514

1 have in your office, to establish precisely when -- because you were very

2 categoric in your motion specifying different dates for different

3 defendants.

4 MS. KORNER: I don't think Mr. Ackerman is disputing that he got

5 -- that he did get the statements. He's not disputing that.

6 JUDGE AGIUS: You're not disputing that?

7 MR. ACKERMAN: No. I got a copy of the statement from them

8 sometime long ago, and I thought I made that clear in my motion. Maybe I

9 didn't. If I didn't, I intended to. I was referring to the actual filing

10 with the Court, which is what the Rule -- the Rule speaks of filing with

11 the Court, and the amount of time one has after that filing to --

12 JUDGE AGIUS: But how does it affect you?

13 MR. ACKERMAN: It doesn't affect me at all, Your Honour. What

14 affects me is there is no B/C/S translation and so my client --

15 JUDGE AGIUS: That's been promised for Friday.

16 MR. ACKERMAN: How on earth can my client look at that and give me

17 instructions? I can't even go see him over the weekend.

18 JUDGE AGIUS: But that's no justification for Mr. Donia not to come

19 over and, if necessary, start giving evidence orally.

20 MR. ACKERMAN: I think it is. We have got hundreds and hundreds

21 of pages of transcripts.

22 JUDGE AGIUS: Forget about the hundreds of pages. He will come

23 here and give evidence, and your client will have the evidence translated

24 there and then.

25 MR. ACKERMAN: Your Honour, I understand if you want to make that

Page 515

1 ruling, you may do so, but it conflicts with four years of jurisprudence

2 of this Tribunal.

3 JUDGE AGIUS: That's what you think, but I am faced with the

4 motion now, at the 11th hour, trying to stop Mr. Donia from coming over

5 and start giving evidence in a trial where he is scheduled to be the first

6 witness, and I'm just telling you there is a very simple solution. First

7 of all, Rule 94, as amended now, gives me all the power to shorten time

8 limits and provide for a solution in any case. But I think if that is the

9 attitude that is going to be adopted, as long as you have had this

10 document for more than 21 days, I don't see why you should raise the

11 objection that you are raising simply because the Prosecution failed to

12 provide the document to the Tribunal. That's the Tribunal's problem.

13 MR. ACKERMAN: Let me see if I can make myself clear. I have the

14 English version.

15 JUDGE AGIUS: Okay. That is going to be solved by Friday and I

16 can quite understand that that could still create a problem for you

17 because on Friday you're going to say, "but I haven't had time to discuss

18 it with" your client because it's in English, what you have, and what you

19 will have on Friday will be in the language that your client understands,

20 and it will give you the opportunity. Okay. We can obviate that. We can

21 start with Mr. Donia coming over and giving oral evidence, and when you

22 are in a position to admit the statement as presented, as filed by Ms.

23 Korner, we will go ahead.

24 MR. ACKERMAN: I just want to make myself clear, Your Honour, so

25 that there is no misunderstanding. It's my belief that it is the law of

Page 516

1 this Tribunal that witness statements and material that's provided in

2 addition to those witness statements that involve other statements of the

3 witness are required by the law of this Tribunal to be in the language of

4 the accused. None of the transcripts that have been provided with regard

5 to Mr. Donia are in the language of the accused. One of the statements

6 provided --

7 JUDGE AGIUS: Sorry to interrupt you, Mr. Ackerman. I don't think

8 you are reading me in the loud and clear manner that I think -- I thought

9 for a moment I had been. I am telling you I have in front of me a motion

10 from Ms. Korner, which admittedly is based, as it is, also as a result of

11 the fact that the Tribunal had not been furnished with a copy of the

12 statement, as it should have been. There is also the specific request

13 contained in that motion. In response to that motion, I have two

14 documents, one from the Defence team for General Talic saying, "Mr. Donia

15 has given evidence in two, three other trials. We should have had this

16 available. We insist on a cross-examination." Well, I'm not saying how I

17 will decide on that issue, but it will be decided.

18 You come along with another argument, saying, "The Tribunal has

19 not been given a copy of the statement of Mr. Donia when it should have

20 been given, and it has been given a copy at this very late hour. The

21 Tribunal's problem has become my problem but it has become my problem

22 because the copy which I have had for the past three weeks is in English

23 and not in Bosnian." How the two can be reconciled together or can be put

24 in the same basket together to provide you with an excuse for asking the

25 delay of the production of Mr. Donia as a witness, I don't understand.

Page 517

1 However, if that is indeed a problem to you, and if indeed your client

2 finds objection to Mr. -- to the admission of the document because it is

3 in English and when it will be in Bosnian, it will be, according to you,

4 too late for you to consult, scrap it. There will be no statement,

5 written statement, from Mr. Donia. He will be brought forward, presented

6 as a witness, and we will hear his evidence.

7 MR. ACKERMAN: Your Honour --

8 JUDGE AGIUS: In English or whichever language he speaks, and it

9 will be translated in B/C/S, as your client is entitled to.

10 MR. ACKERMAN: Your Honour, I'm not - and I repeat - I am not

11 talking about whether a document can be admitted or not. What I'm talking

12 about is the Prosecution's obligation to provide material to the Defence

13 in a timely manner, both in English or French and in the language of the

14 accused. That has not been done with regard to this witness. Now, just

15 yesterday - just yesterday, Your Honour - I receive additional statements

16 of this witness, and I don't know how many pages, 700, 800, maybe, pages

17 of transcript from testimony he's given in other proceedings. This case

18 is two and a half years old. I suspect several months ago that they knew

19 they were going to call Robert Donia as a witness and yet they waited

20 until yesterday to give me material that I need to prepare for

21 cross-examination. Now, that's not fair, that's not proper, and it's not

22 translated into B/C/S as the Rules and the law of this Tribunal require so

23 that my client can look at it and knows what's coming.

24 21(4) requires that he is to be advised of the nature of the

25 charges against him, and the jurisprudence of this Tribunal is that

Page 518

1 includes the statements of witnesses who the Prosecution will call, and

2 those statements must be in B/C/S.

3 JUDGE AGIUS: You're 100 per cent right, but on Friday, this will

4 be available in the language that your client understands. And if needs

5 be, there will be a delay in calling upon you for cross-examination, but

6 not in the production of the witness because the witness will be

7 testifying viva voce in any case.

8 Listen, Mr. Ackerman, I am in the same position as you are. The

9 document was presented to me, not on the 26th of December but only

10 yesterday, will have to be read by me together with piles of other

11 documents between now and Monday. But I will sit down or lie down and

12 read them. I have to, because otherwise I will come here completely

13 unprepared, and I have never done that in my life, or in my career. God

14 knows how many hundreds, if not thousands, of pages I have read already.

15 And sometimes pages which I know probably may not be that important.

16 MR. ACKERMAN: If it's the position of Your Honour that with

17 witnesses as to whom the Prosecution has failed to comply in terms of the

18 provision of material and properly translated material, that

19 cross-examination can be reserved until that material is available, then I

20 have no further argument.

21 JUDGE AGIUS: Mr. Ackerman --

22 MR. ACKERMAN: That's what it's all about.

23 JUDGE AGIUS: Mr. Ackerman, because I think we ought to get to

24 know each other a little bit better, the way I conduct trials is pretty

25 straightforward. If there is work to be done, it will be done. Now, I

Page 519

1 realise that things could and should have been better conducted. I mean,

2 I see no reason why, for example, such a mistake should have taken place.

3 But it has taken place. If you ask me whether between delaying the

4 beginning of the trial because it has happened, it has taken place, or

5 whether I will make a sacrifice and read that document notwithstanding

6 that it has only arrived on my desk barely 24 hours ago, I will sit down

7 and read it and make sure that the trial will start. But these are the

8 two options.

9 You were not deprived -- your client, in other words, will

10 certainly not be deprived of the opportunity of conducting a

11 cross-examination in a timely manner. But to ask me to delay the

12 production or the bringing over of Mr. Donia simply because this has not

13 yet arrived on your desk in B/C/S and you haven't had an opportunity to

14 discuss it with your client, that doesn't make sense. What makes sense is

15 let's bring him here just the same. He will start giving evidence. Your

16 client will have time to read the document in his language, if he wants to

17 read it in his language, and you will have ample time to discuss it or

18 debate it with him. In the meantime, there will be the evidence coming in

19 from Mr. Donia, and we will take it from there. But delaying the bringing

20 over of the witness for the reasons that you bring forward in your motion,

21 and especially because I have been only given a copy of the transcript of

22 the statement now and not when you got it, it doesn't make sense.

23 MR. ACKERMAN: Your Honour, as long as you're prepared to have him

24 come back in a month or two so I can do my cross, then I'll do it.

25 JUDGE AGIUS: Well, you're saying in a month or two. I will be

Page 520

1 the one to decide whether it's time or whether you should be in a position

2 to conduct the cross-examination, not you. You may stand up at any given

3 moment and say, "I am not in a position to conduct the cross-examination,"

4 but it will be I and my two other colleagues who will decide whether you

5 should be in a position.

6 MR. ACKERMAN: Absolutely. I agree with that.

7 JUDGE AGIUS: That's it. I'm telling you. You may tell me, "I

8 haven't had time to read this," but rest assured that I will find the time

9 to read it by Monday.

10 MR. ACKERMAN: I have read that.

11 JUDGE AGIUS: Okay.

12 MR. ACKERMAN: I read that a long time ago. But I have nine

13 documents that they gave me that are in Serbo-Croat that I can't read.

14 How can I cross-examine when I can't read it?

15 JUDGE AGIUS: But you have a translator, or interpreter. I

16 don't.

17 I don't think he has finished, Mr. Pitron. Let him finish first,

18 and then you can take over.

19 MR. ACKERMAN: Your Honour, I believe I kind of have finished. I

20 think the position that we are in is that --

21 JUDGE AGIUS: I realise that you are in a difficult position. I

22 mean, I will be the first one, and please accept it in the most definitive

23 of terms. I realise that you three are in a very difficult position, but

24 so am I. This is why last time I told you, let's start with a clean

25 slate. There are difficulties. This is not an easy trial, but this is

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1 also a trial that is not going to begin one day and finish the next. This

2 is a trial which is going to be divided into phases according to

3 municipalities. What applies to one municipality need not necessarily

4 apply to another. And we can start with one municipality, and certain

5 other things may stay in abeyance and be done, in the meantime pending

6 which you will have time then to prepare for the next municipality and the

7 next municipality as we go along.

8 However, please don't try to take over and dictate the way -- or

9 the time when the cross-examination should be conducted, or whether you

10 are prepared -- you are entitled to say, "I am not prepared now," and it's

11 up to the Tribunal to decide whether you should or ought to have been

12 prepared by then. If you can rest assured also that if I believe that

13 your objection or that your claim to not have enough time is justified, I

14 will grant you time.

15 MR. ACKERMAN: Your Honour, I attached to one of my motions a

16 piece of transcript from the Omarska case, and I know you haven't had a

17 chance to go through it.

18 JUDGE AGIUS: No, I haven't.

19 MR. ACKERMAN: But it dealt with a situation where the Prosecutor

20 realised that they had failed to provide some of the materials in

21 association with a witness in the language of the accused and therefore

22 said to the Court, we can't go forward with this witness until we've done

23 that. Ms. Hollis, who has been -- who had been there at the time for more

24 than five years, very familiar with the jurisprudence of the Tribunal, was

25 very embarrassed, apologized to the Tribunal for not having provided all

Page 523

1 of the materials with regard to that witness in the language of the

2 accused. She believed that it had been done. The Court said, We have no

3 alternative but to adjourn this case until those are provided and Defence

4 counsel have an opportunity to study them.

5 As Judge Rodrigues said at the conclusion of his remarks in that,

6 "We cannot, in the interest of efficiency, fail in terms of fairness."

7 And let's not do that. I don't mind going forward with this case, but I

8 will insist that my client's rights be protected in the process.

9 JUDGE AGIUS: They will be protected, Mr. Ackerman, but not at the

10 expense of mixing two issues together when they belong separately. One of

11 the arguments that you bring forward is, Your Honour, it's not fair that

12 you have received this document now. And please look at Rule 94 as

13 amended. Mr. Donia cannot be produced to give evidence on Monday. I'm

14 sorry, where is the nexus? Where does it follow?

15 MR. ACKERMAN: The Rule was amended to read --

16 JUDGE AGIUS: How does it follow?

17 MR. ACKERMAN: I believe the Rule was amended after the prior

18 Rule's 21-day deadline.

19 JUDGE AGIUS: The Rules as amended give me -- give the Tribunal,

20 rather than me, much more leeway and flexibility, together also with Rule

21 127, than this Tribunal ever had under the previous Rule.

22 MR. ACKERMAN: Well, it's my position that the Rule enlarges the

23 time rather than narrowing it, but that's up to a Chamber to decide, not

24 me. I can make the argument at least. But I think I've completed the

25 things I needed to say with regard to that, Your Honour, and I understand

Page 524

1 that I'll be given time to prepare for cross-examination.

2 JUDGE AGIUS: Definitely. You don't even have to doubt that. And

3 I will conduct the orchestra as needs be, pacing it as necessary, to make

4 sure that your client's rights are guaranteed. There will not be any

5 undue pressure. There will be pressure, but not undue pressure.

6 Mr. Pitron?

7 MR. PITRON: [Interpretation] Mr. President, when listening to you

8 speak with Mr. Ackerman, I was wondering whether you were speaking about

9 the same documents. It is clear that we received reports and summaries of

10 Mr. Donia's statements that are anticipated for next Monday. We received

11 not long ago but we worked on what we did, we translated, and we're in a

12 position to work with those documents. But what we're speaking about

13 today is another document, the 800 pages, a little bit more if I've

14 calculated right, which are also Mr. Donia's statements. And they deal

15 with all of his testimony in this Tribunal in other cases and which are an

16 integral part of the elements which will be used as of Monday by Mr. Donia

17 and by the Prosecutor and by ourselves during cross-examination in order

18 to try to bring light on the matter for the Tribunal.

19 What we're saying, and now I agree with Mr. Ackerman, is that

20 these documents will not be translated into Serbo-Croat by Monday. Let's

21 be very clear about that. I mean that part, an important part - actually,

22 an essential part of what Mr. Donia is going to say, because it's much

23 more important than the summary that we have today, a very important part

24 of what Mr. Donia is going to say will not be known to our client before

25 he reads them.

Page 525

1 I believe that familiarity by myself and by my client of all of a

2 witness's position before he testifies is absolutely essential for the

3 general defence, both for me and for my client. It isn't by discovering

4 what Mr. Donia is going to say when he does speak; that's not how we will

5 be able to act effectively. And I think that by supporting this position,

6 I am in complete harmony with the Rules of Procedure and Evidence. That

7 is my point. And I want us to understand that we're speaking about the

8 800 pages that we received today and not about the 50 or 100 that we

9 received on the 26th of December.

10 JUDGE AGIUS: Again, I mean, I think we are mixing issues here.

11 Those 800-odd pages that you are referring to, as I understand, do not

12 constitute or form an integral part of the statement that the Prosecution

13 in its motion is asking to be produced.

14 Obviously, these are documents that you may require or you may --

15 you feel you may need for the purposes of cross-examination. You will be

16 given all the ample opportunity and time necessary or required for you to

17 take cognizance of those documents and be able to make your

18 cross-examination at the right time, but don't ask me to pre-empt every

19 issue now, beforehand, before we have even started, and say, "Those are

20 800 new documents which I don't even have myself." I mean, you have 800

21 pages; I don't even have them. But the thing is, as soon as I have those

22 800 pages, I will also be in a better position - you will immediately

23 understand what I am telling you now - I will be in a better position to

24 appreciate and give weight to what you are saying now. And if they are

25 indeed necessary -- if they are a repetition of what there is in the

Page 526

1 statement that the Prosecution has filed with its motion, that's one

2 thing. If there are other matters, that's another. But from what

3 Ms. Korner said earlier on, I understand that the statement that has -- is

4 purported to be made by Mr. Donia in this particular case is over and

5 above what he stated in other cases, because it covers territory or events

6 related to this particular case, which had nothing to do with previous

7 cases.

8 Well, I have to see those 800 pages, but obviously, you can take

9 it from me, as from now, that if you require -- if they are required for

10 cross-examination purposes, you will, of course -- I have to take into

11 consideration that you need to read 800 pages, and you will have time to

12 read 800 pages, but I will decide how much time, not you. This is the

13 point I want to make. So what I resent is telling, you have to be

14 prepared to summon Mr. Donia again in a month's time, if necessary even in

15 three months' time, if necessary even more than once, if necessary even

16 more than once, but I will be the one to decide.

17 MR. PITRON: [Interpretation] Your Honour, let's be clear, please.

18 It was never my intention to try to ask you to set any particular date.

19 JUDGE AGIUS: You didn't. Mr. Ackerman did.

20 MR. PITRON: [Interpretation] However, I do agree with the fears

21 that Mr. Ackerman expressed. What I was saying is my client must have the

22 best Defence possible. You understand my concern that five days from the

23 start of the trial, when I see that, as you just said that I'm going to

24 discover in the 800 pages new facts that would change your vision and my

25 vision of the trial, whereas these documents, some of them in any case,

Page 527

1 are dated June, 1997.

2 JUDGE AGIUS: Of course, you are 100 per cent right, but you also

3 realise that the point you are making now is completely different to the

4 point that Mr. Ackerman made. Mr. Ackerman asks the Tribunal to delay the

5 production of Mr. Donia as a witness. And that's a completely different

6 matter.

7 Yes, Ms. Korner?

8 MS. KORNER: Your Honour, may I explain -- first of all deal with

9 Mr. Ackerman's point? If Mr. Ackerman's expression is that the

10 Prosecution waited until yesterday to hand over the previous record of the

11 Court hearings of Mr. Donia, then he knows that is wrong if the suggestion

12 is that was deliberate. He and I had a conversation in which I told him

13 that I was sure he had been sent all previous transcripts. He informed me

14 that was incorrect, and I, having checked, saw that he in fact was correct

15 and I was wrong.

16 It is unfortunate, it was just before Christmas or in the -- just

17 after Christmas when we made the disclosure. We disclosed the previous

18 transcript in which he testified in the case that is presently going on in

19 this building involving the accused from Bosanski Samac. We omitted,

20 through an error, which is our fault, my fault, to provide also the

21 transcript of his testimony in the case of the Prosecutor against General

22 Blaskic and his testimony in the case of the Prosecutor against Kordic and

23 Cerkez. That was rectified this Monday. The transcripts were placed in

24 the Defence locker. They are long; that is undoubtedly right.

25 In essence, Dr. Donia's report, each of the reports that he has

Page 528

1 compiled, has, if I can put it that way, a relatively standard beginning

2 which describes the history going back to 600 AD.

3 JUDGE AGIUS: I've started reading.

4 MS. KORNER: Your Honour, it was entirely my fault.

5 Unfortunately, I did not read Rule 94 carefully enough, and although we

6 sent it to the Defence before Christmas, we omitted to file it with the

7 Court.

8 Therefore, it is right to say that the Defence have only had the

9 two other transcripts, Blaskic and Kordic, since Monday, but they have had

10 the testimony in Bosanski Samac since before Christmas.

11 Your Honour, I'm told that we have obtained the tapes from the

12 Registry in respect of those two hearings in the Bosnian Serb language.

13 That is being listened to at the moment by an interpreter to check where

14 the evidence begins on the tape and where it ends. Copies will then be

15 made and those -- therefore the translation or the audio recording of what

16 is said in the Bosnian Serb language will be available to counsel on

17 Friday.

18 The extra documents that Dr. Donia refers to in his report, which

19 we supplied with his report, again, we are fairly confident that the

20 translation of those extra documents into English, because they are in

21 Bosnian language, will be available on Friday.

22 Now, may I say that my only concern is this, having heard what

23 Your Honour has said: Dr. Donia, as Your Honour can see, is a

24 professional man and has other engagements. As I understand Your Honour's

25 proposal, it is that he should testify in chief and then cross-examination

Page 529

1 will be reserved until such time as --

2 JUDGE AGIUS: That's if the current objections to the admission of

3 this statement that you filed stand or are accepted by the Tribunal,

4 because there is the other option which I suggested also, and that is

5 admitting the document, the statement, providing the Defence time to go

6 through it, and during that time, Mr. Donia would start giving evidence on

7 whatever he can give evidence viva voce. In other words, there is

8 absolutely nothing to -- how long were you envisaging his stay would

9 take?

10 MS. KORNER: Well, Your Honour, one of the many questions I was

11 going to ask under the heading "Witnesses" on your agenda was if any

12 estimate could be given for the length of time these witnesses were going

13 to be here, because we need to make arrangements. Effectively - and this

14 is a matter that I would have liked to discuss at some stage with Defence

15 counsel - I need to know what parts of the report are disputed and what

16 are not, and I was proposing to take him through, briefly, in chief, only

17 those parts that were disputed or that seemed to be particularly

18 relevant. In other words, I had no intention of delving in open court

19 with the witness into the history of Bosnia going back to 600. It's in

20 the report; it can be read. So at the moment, I'm at somewhat of a loss

21 to know what is to happen. As I say, it's exceedingly expensive to fly

22 him over from the States. It will be even more expensive if he has to fly

23 back again and then come back again for cross-examination.

24 JUDGE AGIUS: But this is not a situation that has been brought

25 about by the Tribunal or by the Defence.

Page 530

1 MS. KORNER: I appreciate that. Your Honour, that, at the moment

2 -- in any event, as I say, I don't know what's disputed, what's not, and

3 how much I need to go into it. I would have anticipated that -- I'm

4 sorry, I'm afraid I think it's customary while one counsel is on their

5 feet for another one to remain sitting.

6 JUDGE AGIUS: He will not be allowed to interrupt you, Ms.

7 Korner. Please go ahead. He is French anyway. He knows what courtesy is

8 all about.

9 MS. KORNER: What I was about to say, therefore, Your Honour, it

10 has been exceedingly difficult, and I raise this --

11 JUDGE AGIUS: I realise that, Ms. Korner. I know.

12 MS. KORNER: May I say the difficulty I want to refer to -- Your

13 Honour has suggested that we try and agree matters. It is very difficult

14 to discuss and agree matters if counsel decline to have a meeting.

15 JUDGE AGIUS: That would have been my first preference, but

16 obviously we failed there. What I suggest we do is this, because I think

17 that in any case, we cannot waste time. Given the current situation, I

18 think that postponing the arrival of Mr. Donia doesn't make sense. On the

19 other hand, approaching the matter in the way that you had intended in the

20 first place, given the current -- the present situation, I also think

21 doesn't make sense, in the sense that you, before or until now, you had

22 expected to bring over Mr. Donia, you had expected to have on your table

23 or on your desk a situation whereby everyone is prepared, and if there are

24 questions that need to be addressed to him, they will be addressed either

25 by the Prosecution or in cross-examination by the Defence. That obviously

Page 531

1 cannot happen first thing Monday morning. So what can happen Monday

2 morning - and this will help you also make a choice now - what can happen

3 Monday morning is that he will come over and he will start giving

4 testimony, evidence, viva voce; if necessary, you will refer him to the

5 statement that he has made bit by bit, and -- well, I mean, you will be

6 gaining something very important, that whatever he will be saying at that

7 point in time will be simultaneously translated in B/C/S, in B/C/S, and

8 there will be less excuse on the part of the Defence that we still need to

9 read what is contained in the statement.

10 MS. KORNER: Your Honour --

11 JUDGE AGIUS: If it is necessary, he will read out the statement

12 and automatically it's being translated into B/C/S.

13 MS. KORNER: Your Honour, may I say something? I don't know

14 whether Your Honour intended to cut me off from making an opening, but I

15 anticipate that I will be opening this case most of Monday morning.

16 JUDGE AGIUS: I hope so.

17 MS. KORNER: So it is more probable -- I mean, it may well be that

18 I don't take the whole morning, but I very much doubt that Dr. Donia would

19 do anything more than really maybe possibly just start, but probably

20 Tuesday morning, by which time, of course, the statement will have been

21 translated and the Defence should have the tapes for their -- for the

22 accused, of the previous testimony.

23 JUDGE AGIUS: But please do understand, we have all lived trials

24 in our career, okay? I as a Judge, and as a previous lawyer, Defence

25 counsel in this case, I can't expect either you or the Defence to do two

Page 532

1 things at a time. Yesterday, to give you an example, I had a phone call

2 from my daughter, whose husband is a lawyer, as she is, and he is in

3 charge of legal aid. He was called upon, given 24 hours' notice to defend

4 an accused in a trial by jury because a lawyer who had been engaged before

5 simply renounced the brief, one hour or two hours before the trial was

6 supposed to start. The Judge wouldn't -- he said, "Okay, you can't afford

7 another lawyer; I will appoint Dr. So and So to defend you." He appointed

8 my son-in-law, who was furious.

9 MS. KORNER: It's happened to all of us.

10 JUDGE AGIUS: Gradually, he obtained a two-day grace. But he had

11 to accept, and they did something for formality's sake on the first day,

12 and now it's adjourned. And in the meantime, he can read and do a little

13 bit of homework. But expecting him to do two things, or me expecting

14 Mr. de Roux or Mr. Pitron or Mr. Ackerman to do two things, prepare for

15 the trial, concentrate on what goes on Monday morning while you are -- and

16 at the same time, listen to the tapes or consult with the client, it's --

17 that's not what I want to do. And this is why I was angry at you,

18 Mr. Ackerman, because I don't think -- last time, we were on the same

19 level or same wavelength. Today we weren't. Today you were asking for

20 the pound of flesh, which you will never get from me. I am making myself

21 clear to you and to the Prosecution. I mean, let's be reasonable. Let's

22 start, but also be considerate, patient, and reasonable.

23 MS. KORNER: Your Honour, respectfully, I'm going to make the

24 following suggestion: If everything is delivered to the Defence in either

25 English, the documents they are waiting for, and in the Bosnian language

Page 533

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13 English transcripts.

14

15

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18

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25

Page 534

1 for the tapes of the previous transcript, if the case were to be put back

2 for the Wednesday, I'm asking, would that be sufficient time for them to

3 deal with it? Because, Your Honour, it seems to me more sensible, if I

4 may so, if that is the situation, for Dr. Donia to come, start his

5 evidence, and to be cross-examined upon it.

6 JUDGE AGIUS: Would you live with that? Now, don't tell me that's

7 not enough.

8 MR. ACKERMAN: Your Honour, we're told that there are some tapes

9 that will appear in our boxes sometime on Friday that have the testimony

10 of Mr. Donia in prior cases in B/C/S and that that will satisfy the

11 requirements of the Statute of this Tribunal and the law thereunder

12 because our clients can simply sit and listen to those tapes.

13 JUDGE AGIUS: Satisfy the letter of the law, let's put it like

14 that.

15 MR. ACKERMAN: Your Honour, those tapes, I don't know how many

16 hours it is.

17 JUDGE AGIUS: I don't know either.

18 MR. ACKERMAN: But it may be more than the entire weekend, and

19 that's how much time they apparently have to listen to these, and then

20 have an opportunity to discuss with us what they have heard on the tapes.

21 I just think it's not --

22 JUDGE AGIUS: But also, Mr. Ackerman, let's talk the same language

23 now. You have seen the witness's statement. I'm not referring to those

24 800 pages. I'm referring to what I got and what you got as well. Out of

25 those 150 pages -- something like that, no?

Page 535

1 MS. KORNER: I'm sorry, Your Honour, what was that?

2 JUDGE AGIUS: I'm referring to --

3 MS. KORNER: The length of the report.

4 JUDGE AGIUS: Yes.

5 MS. KORNER: It amounts to -- the actual report itself is

6 something like 77 pages, and then there's some annexes, maps.

7 JUDGE AGIUS: Annexes, et cetera, yes. Let's talk the same

8 language. And I am sure you're going to understand me. A substantial

9 part of that report refers to events which are interesting to know and

10 which go back centuries, which I don't think your client or yourself is

11 going to be very much interested in cross-examining Mr. Donia about. You

12 know which events I'm referring to.

13 MR. ACKERMAN: Yes.

14 JUDGE AGIUS: When some of our ancestors were probably living on

15 the trees.

16 MR. ACKERMAN: Certainly mine.

17 JUDGE AGIUS: There are other -- then there are other events on

18 which I would expect a serious Defence team to cross-examine Mr. Donia

19 thoroughly. I think you need more than Monday to go through those

20 parts --

21 MR. ACKERMAN: I seriously doubt --

22 JUDGE AGIUS: Not referring to the 800 pages, because that's

23 another matter. If you open the discussion there, I have already made the

24 reservation.

25 MR. ACKERMAN: The problem, Judge, and I think we must be having

Page 536

1 problem communicating. Let me, first of all, apologise to you for

2 suggesting that it might take 30 or 60 days. I wasn't trying to dictate a

3 time to the Court when the Judge [sic] would come back. I was just

4 estimating that I thought it might take us that long to be prepared,

5 depending on how long it takes to get some of these other matters. But I

6 doubt in the 800 pages of prior testimony any of it had to do with that

7 ancient history that's contained in the report, and that's not what I'm

8 concerned about. It would not surprise me to discover. And it would

9 certainly be --

10 JUDGE AGIUS: But you are also going to discover that there is a

11 lot of repetition in the three or four documents.

12 MR. ACKERMAN: I suspect that's true. It would be folly for me to

13 say, "I'm not going to read that material" because as soon as I don't,

14 I'll learn after this case is over that he said something exactly the

15 opposite in another case than what he is saying in this case. You know

16 that can be, and I know that can be. And in fact, the chances of it are

17 pretty high. I have to look at all that material.

18 JUDGE AGIUS: I wouldn't pass judgement on that. I don't know.

19 MR. ACKERMAN: Maybe you'll get to hear it, once I get to look at

20 him when he's standing on the witness stand and I get to talk to him.

21 But in any event, what I wanted to say is I think we are missing

22 each other here. The issue that I am trying to bring to the Court's

23 attention at this point is not an issue of whether that particular

24 statement that has been filed in this case should be admitted or not. I

25 don't care about that. You can admit it. You can do anything you want

Page 537

1 with it today. What I care about is this: It's the law of the Tribunal

2 that the statements of witnesses and prior statements of witnesses and the

3 attached material of witnesses must be provided both in a language of the

4 Tribunal and in the language of the accused.

5 Now, that means this 800 pages must be provided in the language of

6 the accused. If you will look -- of course, you don't have the material

7 yet. But if you will look, there's a witness by the name of Osman Sarak,

8 who has prior testimony, and they have been provided it in B/C/S also

9 because they know it must be provided in a language of the accused. Now,

10 they are suggesting that the tapes will solve that. And I think that this

11 Chamber and this Tribunal will probably agree with that, that the tapes

12 will solve that requirement.

13 The next problem, then, is my client is sitting out at the

14 detention unit. He doesn't have a machine to play those tapes, so

15 somebody will have to make the arrangements for him to be provided with a

16 machine to play the tapes and provided with the ability and the facility

17 to listen to them. And I think that that will probably solve that

18 requirement, but it is a requirement that that material be provided in the

19 language of the accused. And that's where I think you and I are missing

20 each other. And that's true with all the witnesses. And when you look at

21 the other motions that I filed, that's the problem.

22 JUDGE AGIUS: Don't tell me that this is the first time that the

23 question of having the defendant provided with a tape recorder has

24 arisen.

25 MR. ACKERMAN: I don't know. To my knowledge, it is.

Page 538

1 JUDGE AGIUS: I would be very surprised if it's the first time it

2 has arisen.

3 MR. ACKERMAN: It's the first time --

4 JUDGE AGIUS: In my case, it's understandable. It was not

5 bothering me in the least because if it's necessary, they will be made

6 available. If necessary, I'll make an order.

7 MR. ACKERMAN: You probably don't have to. I've never had to talk

8 with the detention unit about providing tape recorders to defendants to

9 listen to tapes. Maybe they do that routinely. And if they do --

10 JUDGE AGIUS: I would imagine so. I mean, I would be very

11 surprised if it's different.

12 MR. ACKERMAN: If they do, that's fine. I just never heard of

13 it. But in any event, I don't know how many hours of tapes there are.

14 And Ms. Korner might not even know how many hours of tapes there are. But

15 it's significant. If you just look at the 800 pages here, there are

16 several full days of testimony there. And so you can't listen to that in

17 a few hours. That's my point.

18 JUDGE AGIUS: But you haven't answered my query, and my query was

19 whether you have a response to the suggestion of Ms. Korner that instead

20 of starting Monday, we start Wednesday?

21 MR. ACKERMAN: Starting the trial or just the testimony --

22 JUDGE AGIUS: Starting the trial Wednesday.

23 MS. KORNER: That would mean, say, a morning's opening, give or

24 take, so Dr. Donia here on Thursday.

25 JUDGE AGIUS: While Mr. Ackerman thinks about it, Mr. de Roux will

Page 539

1 have the word.

2 MR. ACKERMAN: Let me just say that it depends on the material

3 that's provided between now and then, with respect not just to Dr. Donia,

4 but some of these other witnesses they have not provided the material on.

5 Let me just say one thing before we start hearing it again from

6 the Prosecutor: It's true, Your Honour, that I have signed receipts

7 saying that I received certain documents.

8 JUDGE AGIUS: I was going to come to that. Again, that's a

9 major -- anyway.

10 MR. ACKERMAN: But I will not represent to you in writing, orally,

11 or otherwise that I don't have a document when I do, in fact, have it.

12 Now, many of the receipts -- the indexes that came with the receipts that

13 I signed, the documents that were represented to be in that shipment were

14 not there, and I have advised them of that on most of those occasions.

15 The issue is not whether I received them or not but whether I have them.

16 When I tell you I don't have them, I don't have them. And I can't do

17 anything until I do have them. So the simple solution to that is that

18 they give them to me again, because I just don't have them.

19 JUDGE AGIUS: You understand that the position that I have to take

20 in that regard is to disagree completely with you in saying what's

21 important is not whether I have received them; what's important is whether

22 I have them. That's your problem. What concerns the Tribunal is whether

23 they have been delivered to you.

24 I can appeal to the Prosecution -- if you don't have them, I can

25 ask Ms. Korner, please hand them over as quickly as you can, and I'm sure

Page 540

1 that Ms. Korner will come along. But don't tell me not having received

2 them and not having them equals the same thing. It doesn't. It's not the

3 same thing. And you, as an experienced lawyer, you know what I am

4 saying.

5 MR. ACKERMAN: If you look at my motions, you will see that I do

6 not claim that I didn't receive them. What I claim is that I don't have

7 them. And I don't have them.

8 JUDGE AGIUS: All right. But that is a problem that can be

9 solved.

10 MR. ACKERMAN: I agree with that. It's simple for that problem to

11 be solved.

12 JUDGE AGIUS: You know, Mr. Ackerman, that I, as a Judge, have

13 been trained and also have and bound to put everything in a legal

14 compartment. So if I have to put everything in a legal compartment, the

15 way I have to approach it is if you don't have them, that may be a

16 practical problem which can be solved.

17 MR. ACKERMAN: Yes.

18 JUDGE AGIUS: If you tell me I don't have them because I have not

19 received them, that becomes a problem for the Tribunal. If you don't tell

20 me that, or rather you tell me not having received them and not having

21 them is the same thing, or -- that's not the case. I mean, it no longer

22 remains my problem. Again, I appeal to Ms. Korner. Please tell

23 Ms. Korner what you require, and I am sure that you will -- she will make

24 them available. And if necessary, I will postpone starting the trial

25 until Wednesday if that is necessary for you to read these documents. I

Page 541

1 am prepared to meet you halfway. But don't present it to me as a problem,

2 as a legal problem.

3 MR. ACKERMAN: I'm sorry. What --

4 JUDGE AGIUS: It becomes a legal problem to me if you tell me, "I

5 don't have them because she never gave them to me."

6 MR. ACKERMAN: No, no. Judge, there have been - I don't know - a

7 hundred thousand of pages of documents supplied --

8 JUDGE AGIUS: Okay, and you lost track of it. And I would have

9 lost track, like I have done in the past.

10 MR. ACKERMAN: A document can be misfiled. It could be

11 somewhere --

12 JUDGE AGIUS: That can be solved. That is a practical problem,

13 and I think there can be a practical solution to it.

14 MS. KORNER: Your Honour, first of all, may I say this: That

15 normally Mr. Ackerman writes to us and says he hasn't received the

16 documents or whatever, and we do our best. It perhaps would have been

17 more helpful if he had spoken to us rather than filing these motions. In

18 fact, in some cases, Your Honour, we've provided the translations that he

19 complains he hasn't had -- there are some, however, which are still

20 awaiting translation. So that's certainly correct. It's the usual

21 problem.

22 Your Honour, we will resupply exceptionally today the documents

23 that we do have translations of. I believe there are a number which are

24 still awaiting translation into one or another language. But I'll go

25 through them with him. But can I say, Your Honour, it's much more work

Page 542

1 than it sounds to extract these documents again.

2 JUDGE AGIUS: This is it. I came to this Tribunal, and then

3 suddenly learning -- it's the first time in my life that a couple of days

4 before the trial is supposed to start, there are so many pending issues

5 and so many complications. In the jurisdiction I come from, which is very

6 similar to yours, everything is cooked and well cooked and nicely

7 presented before it's eaten.

8 Here we run the risk of going to table and -- having uncooked --

9 MS. KORNER: Your Honour, having said that, the third witness --

10 JUDGE AGIUS: We Maltese are like the French. We make of cooking

11 and eating an art. So to us it's very important.

12 MS. KORNER: Your Honour, may I mention the third witness on Your

13 Honour's list, Witness 799?

14 JUDGE AGIUS: One moment, let me go to it. Yes?

15 MS. KORNER: Forgive me, I'm just trying to find -- yes. Your

16 Honour, I'll deal with that with Mr. Ackerman after Your Honour has

17 risen. We are unable to identify at the moment, I have to tell you, from

18 what he's put in there, what documents he's referring to, because no ERN

19 numbers have been given. Those are the numbers at the bottom.

20 He will be the third witness and arrangements are in train

21 because, as Your Honour may or may not know, the Victim and Witness

22 Service require quite a lot of advance notice for getting witnesses here

23 and arranging their travel. So therefore, it's relatively important to

24 know, with that third witness, whether Mr. Ackerman is -- will maintain

25 that he can't deal with him. He's coming from quite a long way away as

Page 543

1 well, and his travel is, again, quite expensive.

2 JUDGE AGIUS: What I'm going to do, Ms. Korner - and actually I

3 was coming to this later on with regard to the motions filed by

4 Mr. Ackerman - it was my intention to decide here and now, today, the

5 motion dealing with Mr. Donia.

6 MS. KORNER: Yes.

7 JUDGE AGIUS: It was also my intention to give the Prosecution

8 until tomorrow afternoon, end of business day tomorrow afternoon, to file

9 a reply with regard to the other four motions, unless you want to reply to

10 them in this hearing.

11 MS. KORNER: Yes, I do.

12 JUDGE AGIUS: Well, if that is the case, we will come to them

13 towards the end of this hearing.

14 MS. KORNER: Yes.

15 JUDGE AGIUS: Please allow me to finish what I had on my agenda,

16 and we will come to them and then they will be decided between today and

17 tomorrow.

18 MS. KORNER: Your Honour, the difficulty is, of course, because we

19 don't know with that particular witness what these documents are, because

20 the numbering means nothing to us.

21 JUDGE AGIUS: I think Mr. Ackerman is going to tell you. I saw

22 him nodding.

23 MR. ACKERMAN: I've got them here.

24 JUDGE AGIUS: Again, there is a practical solution to that.

25 MS. KORNER: It may well be we will have to ask Your Honour to

Page 544

1 rise again because we have to decide.

2 JUDGE AGIUS: I'm here at your disposal. I have no dates or no

3 arrangement or commitments.

4 Mr. de Roux, sorry for keeping you too long waiting to make your

5 intervention.

6 MR. DE ROUX: [Interpretation] Your Honour, I shall be very brief.

7 I should like to come back to the question of the witness, the expert who

8 is going to give us a political opinion of political matters. There are

9 other experts who are equally competent as this distinguished professor to

10 discuss the affairs of the Balkans and to have an opinion as to what

11 happened in this tragic affair. Therefore, the opinion of Professor Donia

12 is certainly interesting but not that essential. That being so, let us go

13 back to the position of the Defence. A moment ago, you used a culinary

14 example that I share: The cooking has not been done and we are getting

15 ready to eat raw. So I don't see any problem personally for Mr. Donia to

16 come and testify if that would please the Prosecution.

17 What I am saying simply is two things. If Mr. Donia testifies on

18 Monday, I would like the Prosecution to withdraw this packet of documents,

19 which is testimony already made by Mr. Donia. This is of secondary

20 interest in my opinion. So if the Prosecution would be kind enough to

21 withdraw these documents, we would not have to debate these very

22 interesting historical documents of Mr. Donia by Monday, and then we would

23 ask for time to be able to cross-examine Mr. Donia, because we can't do it

24 immediately. After all, this is something for specialists, and the

25 Defence reserves the right to call other experts, the Donias of the

Page 545

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Page 546

1 Defence, to come and testify on the same events from a different outlook.

2 So if the Prosecution agrees to withdraw the object of this

3 debate, these new documents which we do not have time to familiarise

4 ourselves with, then the Defence of General Talic would be satisfied.

5 MS. KORNER: Absolutely, Your Honour. I will withdraw them on the

6 spot. I'm just waiting for Mr. Ackerman.

7 JUDGE AGIUS: And to tell you the truth, Ms. Korner, I had a big

8 temptation to suggest it to you, but I hesitated, of course.

9 MS. KORNER: Well, it is without doubt the most wonderful

10 suggestion I've heard in the two years, three months, and ten days that

11 I've been on this case.

12 JUDGE AGIUS: I suppose Mr. Ackerman is going to insist on their

13 being exhibited.

14 MR. ACKERMAN: Your Honour, I have been here four years, in one

15 role or another, at this Tribunal, and I knew -- I expected the day would

16 come when I would step through the looking glass and be in a totally

17 different dimension, and I think it just happened. These documents aren't

18 supplied as proposed exhibits. Their purpose is not that they be exhibits

19 in the case and become part of the record of the case.

20 JUDGE AGIUS: That's how I was looking at them, even though I

21 hadn't seen them.

22 MR. ACKERMAN: Their purpose is that the Prosecution must give us

23 prior statements of witnesses so that we can use them to prepare our

24 cross-examination of the witnesses. The Prosecution never intended that

25 they become exhibits in the case. So withdrawing them is of no -- makes

Page 547

1 no sense. I understand Ms. Korner is delighted to withdraw them because

2 she just as soon we didn't read them and use them to cross-examine her

3 witness, but she has to supply them. It's required by the Rules. That

4 doesn't mean they are here as exhibits. None of this is here as

5 exhibits. It's here to assist us in preparing cross-examination, that's

6 all.

7 JUDGE AGIUS: But if there is no insistence on the Defence for the

8 presence in the records of the case, we can live without them.

9 MR. ACKERMAN: There is, on behalf of this defendant, that any

10 prior statement of any witness they are going to call needs to be

11 provided. That's what the Rules require, and I insist on it.

12 MS. KORNER: I think it's perhaps a sign of the difference between

13 the two systems, which doesn't obviously often materialise in such an

14 obvious way. Clearly, they are not intended as exhibits. They are

15 supplied as previous testimony of a witness, and they are there for the

16 Defence to use, if they so wish to, for the purposes of

17 cross-examination.

18 JUDGE AGIUS: So they will remain there.

19 MS. KORNER: They are not an exhibit; they never were. They were

20 supplied, as I said, because it's previous testimony.

21 JUDGE AGIUS: Okay. I think we can safely move to something else.

22 MS. KORNER: Well, Your Honour, so Your Honour is going to rule

23 later today, are you?

24 JUDGE AGIUS: Certainly. You think I am going to leave this

25 pending? No way.

Page 548

1 With regard to Rule 92 bis statements, I stated -- one moment.

2 Yes. I stated that there is an outstanding motion from General Talic that

3 will be decided in due course. General Talic. Is there anything else

4 pending under Rule 92 bis statements? In other words, you had presented a

5 list under 65 ter.

6 MS. KORNER: Yes.

7 JUDGE AGIUS: Last time when we had the Pre-Trial Conference, you

8 had stated that, more or less, you had 70 to 75 witnesses with regard to

9 whom you intended to use 92 bis.

10 MS. KORNER: I have not gone back and added them up, but I think

11 it's something like that.

12 JUDGE AGIUS: Something like that?

13 MS. KORNER: Yes.

14 JUDGE AGIUS: Does it stand as it was or are there any changes or

15 are there any additional --

16 MS. KORNER: I don't think there are, Your Honour. What our

17 proposal was, was that we should deal with them municipality by

18 municipality, but there is a motion by Mr. Ackerman objecting to the

19 method, and it seems to me that has to be decided first of all.

20 JUDGE AGIUS: But this is again something -- you see, I am more or

21 less in the same position than you are, even worse, because you filed it,

22 so you came to know it -- know about it much --

23 MR. ACKERMAN: I was just bringing it to your attention.

24 JUDGE AGIUS: The Prosecution knew about it and it only arrives --

25 this is what you referred to before, no?

Page 549

1 MR. ACKERMAN: No, no. I just filed that today.

2 JUDGE AGIUS: I know.

3 MR. ACKERMAN: You know about the prior motion, but you asked

4 about 92 bis and I just wanted to bring you up to date because I know you

5 don't have that yet.

6 MS. KORNER: There was a motion put in by Mr. Ackerman on the 13th

7 of December. It's listed in our -- attached to our agenda, which we

8 responded to. We have had no ruling on that.

9 JUDGE AGIUS: That is pending; yes, I know that.

10 MS. KORNER: As far as I know, neither counsel for General Talic

11 has put in a motion about the 92 bis. No.

12 JUDGE AGIUS: No. I said General Talic. Actually, I had intended

13 Mr. Brdjanin. That's where he -- where, actually, what is being contested

14 is not just one but all on the basis that the presiding officer walked out

15 when -- so that is --

16 MS. KORNER: It's the principle, I think.

17 JUDGE AGIUS: Exactly. That is what is going to be decided. I'm

18 sorry if I referred to it as being General Talic's. It's Mr. Brdjanin's.

19 But apart from that, there is nothing new.

20 MS. KORNER: No. But Your Honour, it's one of the many things

21 that needs decision-making because we can --

22 JUDGE AGIUS: It will be decided.

23 MS. KORNER: I'm sorry, Your Honour, not that, it's whether or not

24 because we have -- we can apply to Your Honour, in the teeth of Defence

25 objections, to allow us to read these statements. It's Your Honour's

Page 550

1 decision, the Chamber's decision. So what we intend to do today was

2 supply Your Honour with copies of the statements for the Banja Luka

3 municipality that we wished to adduce under that rule, unless there is an

4 objection to it, but it doesn't seem to me Your Honour can make a ruling

5 at whatever stage you do and we'd ask that it's before -- in enough time

6 to warn the witnesses and bring them here, if necessary, without reading

7 what's in the statements.

8 JUDGE AGIUS: I think that -- disclosure has -- there are no

9 problems pending with regard to disclosure, no?

10 MS. KORNER: All witness statements have been disclosed. I'm

11 reminded - I checked again in the adjournment - all witness statements

12 have been disclosed and translations that we are intending to use.

13 JUDGE AGIUS: That's what is most important for the Tribunal to

14 know. As regards the Tribunal itself, I would be quite satisfied to have

15 them on a rolling basis, municipality by municipality. It would help me

16 having it that way rather than all together - I think you understand what

17 I mean - because we will have to live the trial day by day or municipality

18 by municipality in any case.

19 MS. KORNER: May I just, while I'm on my feet, raise one matter

20 not so much -- but in connection with motions? Your Honour has said that

21 there will be a ruling on the two outstanding motions that General Talic

22 has in respect of the indictment, not the appeal. It's obviously vital,

23 for the Prosecution's purposes, to know before we open the case whether

24 the indictment is as it is, and -- or whether it's going to be amended

25 again. The denial -- if the motions are denied, of course, General Talic

Page 551

1 has the right to appeal, and we could go on like this forever.

2 JUDGE AGIUS: Yes, yes. But you -- I think my message was quite

3 clear in the beginning of today's hearing. There is an appeal pending,

4 which I have had indication - although I can only speak for myself and for

5 my Chamber and not for the Appeals Chamber - but the indication is that

6 you don't have to worry about starting a trial without the appeal having

7 been decided, because the appeal will in all probability be decided before

8 the trial starts. And of course, how the trial starts depends on how the

9 appeal will be decided.

10 MS. KORNER: It's an application for leave, Your Honour, not an

11 appeal.

12 JUDGE AGIUS: Exactly, an application for leave.

13 MS. KORNER: It's still a question of the motions that are before

14 the Chamber.

15 JUDGE AGIUS: Exactly. Now, there is a common terrain between the

16 two motions outstanding before this Chamber and the substance of the

17 grounds brought forward in the motion of General Talic for leave to

18 appeal. So basically, I think I could leave it at that for the time

19 being. I'm fully aware of what is involved and what's not, and I fully

20 appreciate what your position is and what their position is. This is why

21 I'm telling you, if the trial starts Monday, and there is -- I can assure

22 you there is no way you can come here, you are going to come here Monday

23 still in the clouds, as far as these two motions are concerned, or as far

24 as the General Talic's motion for leave to appeal is concerned. That's

25 definitely -- I've been trying to clear up the terrain before even today's

Page 552

1 sitting commenced. The other -- the only problem remaining is whether you

2 wanted to start Monday or whether you wanted to start Wednesday. Please

3 don't leave it hanging, Mr. Ackerman. Do tell me at some point in time

4 what your preference is, and also Mr. Pitron and Mr. de Roux, whether you

5 prefer to start Wednesday rather than Monday. But do tell me towards the

6 end of the sitting.

7 Next item on my agenda was the problem that was raised during the

8 previous sitting regarding the admission of transcripts from other cases

9 before the Tribunal. During the previous conference, Pre-Trial

10 Conference, I had drawn your attention to part of the decision of

11 Judge Hunt of the 23rd of November whereby he had drawn a distinction

12 between certain events and certain other matters. And I had suggested to

13 keep a distinction between certain issues like the internationality of the

14 conflict and other matters like the existence of the conflict. Counsel

15 for General Talic had agreed more or less to this. Counsel for Brdjanin,

16 Mr. Ackerman, had reserved asking for time.

17 I wonder if you have some kind of response to this?

18 MR. ACKERMAN: I think I've lost track of the question, Your

19 Honour. What is it you would like to know from me?

20 JUDGE AGIUS: Well, during the previous conference, Pre-Trial

21 Conference, the Prosecution had indicated even before and during the

22 Pre-Trial Conference that it intended to tender transcripts of evidence

23 given in other cases before this Tribunal, obviously with regard to facts,

24 and also with regard to decided -- I think perhaps you could indicate now

25 to Mr. Ackerman what your intentions were at the time. Because these were

Page 553

1 matters that were raised before Judge Hunt during the some of the status

2 conferences anyway, and Judge Hunt went into the matter in his decision,

3 and he drew your attention to certain matters, saying please don't try to

4 do this. Keep this distinct from the rest, concentrate on the camps, for

5 example, but not on the internationality of the conflict, et cetera,

6 et cetera.

7 We brought this up during the last Pre-Trial Conference, and more

8 or less I made the same appeal.

9 MS. KORNER: I have some difficulty, I'm afraid, rather than like

10 Mr. Ackerman. The answer is in the adjudicated facts which Your Honour

11 has got, we asked, for example, the Defence to admit the convictions in

12 the Keraterm case by way of a plea of guilty and thereby accepting that

13 Keraterm was a place where offences were committed, and so on and so

14 forth. Nothing has been agreed, so we have to make an application to Your

15 Honour.

16 JUDGE AGIUS: All right. That explains. I thought that you had

17 advanced somewhere ahead in that direction. You haven't?

18 MS. KORNER: No.

19 JUDGE AGIUS: No, I was acting under the impression that you had.

20 MR. ACKERMAN: Your Honour, I think it may be what we're talking

21 about here is that the Prosecution at one point presented us with some

22 transcripts of testimony in prior cases regarding the internationality of

23 the conflict and suggested that those transcripts should be accepted and

24 that the Prosecution not be required to bring witnesses to establish the

25 internationality of the conflict. And to some extent, it makes sense that

Page 554

1 that prior testimony simply be the testimony upon which this Chamber can

2 base its decision. The problem is, at least in one instance that I'm

3 aware of, the only transcript that was provided was the direct examination

4 of the witness, leaving out the cross-examination which, in my humble

5 view, brought some of the witness's statements into question.

6 So if it's going to be done, and it probably is, then the

7 Prosecutor should be required to provide the Chamber not just with the

8 direct examination, which is very favourable, of course, to the

9 Prosecution --

10 JUDGE AGIUS: That is definitely correct, Mr. Ackerman. But apart

11 from that, there is another consideration which you seem to be missing,

12 both of you. During the last Pre-Trial Conference, in regard to this

13 particular point that we are discussing now, and precisely with regard to

14 the internationality of the conflict, I had drawn your attention to what

15 Judge Hunt had stated in the 23rd November judgement decision; namely,

16 that there is no point in asking on the part of the Prosecution to have

17 the internationality of the conflict issue presented by way of an

18 adjudicated fact while other things could be presented as adjudicated

19 fact. And Judge Hunt had also suggested to the Prosecution to concentrate

20 more on the camps.

21 Now, there is a particular part of the 23rd -- if you give me the

22 copy of the judgement of the 23rd, I will refer you precisely --

23 MS. KORNER: I'll have a look. I haven't got it with me at the

24 moment, but I'll have a look. He wanted us to try and reach -- I do

25 recall, Your Honour, roughly. He was asking us to try and reach some

Page 555

1 agreement, for example, that Omarska was set up, and so on and so forth.

2 Your Honour, we have served, Your Honour will see, I've forgotten how many

3 agreed facts there are, covering a wide variety of topics. As I've said

4 to Your Honour, and I can give Your Honour the correspondence from the

5 Defence, almost nothing is agreed.

6 It is highly disappointing, may I say, that we should have to in

7 one sense take up valuable court time proving matters about which there

8 really should be no issue and which have no, as it were, direct impact on

9 the Defence case in the sense that in most of these things, they are not

10 suggested defendants personally took part. And it is not very helpful to

11 say, in my view, for the management of a case, You brought these charges

12 against the defendants, the accused; you must prove them; and we will not

13 admit anything, other than the most innocuous of facts relating to the

14 biography of the accused. And may I say, it isn't even apparently agreed

15 that General Talic took command of the 1st Krajina Corps in March, or

16 whenever it was, of 1992. It seems to me wholly incredible.

17 JUDGE AGIUS: Maybe somewhere the document -- and not the 23rd

18 November, but basically -- I don't have the document here, but I came

19 across it and that's why I mentioned it the last time. You will find it

20 somewhere. My predecessor excluded the possibility of having transcripts

21 from other cases filed, presented on the internationality of the

22 conflict.

23 MS. KORNER: Your Honour, we've added to -- since we had this

24 discussion and since we gave the original binders to the Defence, we have

25 added to the documents within the international armed conflict aspect,

Page 556

1 other documents have come to light which we say demonstrate clearly that

2 by the definition of what is an international armed conflict, in the Talic

3 case, the evidence is there. I'm sorry that, again, time should be taken

4 in a trial worrying about whether or not the conflict was an international

5 one when, as I say, it has already been decided in not just one but at

6 least two cases in this Tribunal. And it is, as I say, somewhat

7 unfortunate that time should be taken up proving that element.

8 JUDGE AGIUS: Okay. Now, length of the trial. We discussed this

9 somewhat last time.

10 THE INTERPRETER: Microphone, please.

11 MR. PITRON: [Interpretation] Mr. President, I'm really somewhat

12 weary of constantly being accused by the Prosecution of making it

13 difficult for the trial to be held. I don't have that feeling.

14 One point and one point alone: Madam Prosecutor claims that I was

15 refusing to acknowledge -- that I would not acknowledge what was clear,

16 that General Momir Talic was the commander of the 5th Corps of the JNA. I

17 would like to make it clear that the question that she asked me, on 493 in

18 her document of 29 December 2001, [In English] "Mr. Momir Talic was

19 appointed commander of the JNA 5th Corps which..." 5th Corps, yes, but

20 you continue -- but you continue, and you say, "...which on 19th May,

21 1992, was redesignated of the 1st Krajina Corps of the army of the VRS."

22 No. So I can't agree with the 943 [sic] proposition you made. I am ready

23 to accept some things, but not everything.

24 [Interpretation] That's all, Mr. President.

25 MR. ACKERMAN: Mr. Pitron just raised an issue that I ran into

Page 557

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Page 558

1 over and over. Ms. Korner didn't put facts in. She put in a fact which I

2 could easily agree with, but then the next sentence was a conclusion based

3 upon that fact which I can't agree with. And we're going to work all this

4 out, Judge. But as I told you before, until I can read everything, I

5 can't make these kind of decisions. But a lot of these things are going

6 to get taken care of in agreements between the Prosecutor and the Defence,

7 I'm certain.

8 JUDGE AGIUS: Eventually, I think.

9 MR. ACKERMAN: It's just not going to happen today.

10 JUDGE AGIUS: I can see that, but I also anticipate what you're

11 saying.

12 Again, we all anticipate this trial to be a long one. Do you

13 think there is reason for the Tribunal to believe or think that the trial

14 will be longer than what was stated during the last Pre-Trial Conference,

15 or shorter, or --

16 MS. KORNER: Your Honour, I think I said between 12 and 15 months,

17 didn't I?

18 JUDGE AGIUS: Yes.

19 MS. KORNER: Your Honour, we didn't actually hear what the Defence

20 said. That was my best guess, but it really depends on -- one of the

21 things is when we are sitting. It appears that that the Defence and the

22 Prosecution have two different court schedules, because the schedule that

23 I've seen shows us sitting straight through, say, for a couple of days,

24 and which I hope is right because may I say, Your Honour, five hours a day

25 is not a lot of time with translation and breaks. That's the difficulty.

Page 559

1 I'm not even sure it's five hours. I think it's less.

2 JUDGE AGIUS: It's less. It is actually from 9.00 until a quarter

3 to 2.00 I think, yes. Something like that with breaks, et cetera.

4 Anyway, we will have to talk about that, and we will have to plan as we go

5 along as well. Okay, and I will be coming to some fundamental points

6 which will have a bearing on how the trial will progress and how long it

7 will take or last.

8 There were two very important matters that were raised during the

9 last previous conference that I am going to refer you to. In that regard,

10 the authenticity of documents and also signatures. On behalf of defendant

11 Brdjanin, there was a submission that documents purporting to be emanating

12 from ARK, containing his alleged signature, with very few exceptions -

13 that's the way you put it last time - were not signed or approved by him,

14 nor issued with his permission.

15 On that occasion, Ms. Korner had asked for clarification, and you

16 had clarified, Mr. Ackerman, that it was your contention that the

17 purported signature on a large number of these documents -- purported

18 signature of your client was actually not his. You had promised on that

19 occasion to provide the OTP with a list identifying the documents where

20 you were alleging that your client's signature was not an authentic one.

21 Has that been done?

22 MR. ACKERMAN: Yes, Your Honour. The letter was sent out, and the

23 Prosecution has been provided of a list of each of those documents that is

24 a genuine signature of Brdjanin. I'm trying to find the date. I think I

25 even have the receipt. But in any event, it has been provided.

Page 560

1 MS. KORNER: I'm very sorry, you're quite right. Mr. Ackerman

2 provided me a copy. Again, I mentioned this, and said we hadn't had it,

3 so it must have been very recently.

4 MR. ACKERMAN: Yes, it was faxed to Ms. Korner yesterday at 18.20

5 Greenwich mean time and it took 34 seconds for it to be transmitted, and

6 she should have it.

7 JUDGE AGIUS: Who said that, "The righteous man sins seven times a

8 day"? We all commit the same sins, I see, all of us.

9 MR. ACKERMAN: Well, it's so nice to have her say, "I didn't

10 receive it."

11 MS. KORNER: Your Honour, I will accept that it's perfectly

12 possible that if it was only faxed yesterday I haven't received it. Your

13 Honour, I mention in connection with that something that happened last

14 time. I said in that event, I would -- we would wish to seek handwriting

15 samples from the accused, and that I appreciated that Mr. Ackerman

16 couldn't answer straight away because he would have to take instructions.

17 Mr. Ackerman answered straight away, without having taken instructions.

18 Now, the only reason I raise it because the person who is going to suffer

19 from a failure to provide handwriting specimens, if asked, is not

20 Mr. Ackerman but his client, because it is to his client, if he gives

21 evidence, that it will be put he declined to give those handwriting

22 samples because he knew full well that they would show by comparison that

23 these documents did have his handwriting. And so I raise it now. I think

24 there is a difference between our systems there. Effectively, counsel

25 don't act without instructions in my system, and it may be in Your

Page 561

1 Honour's as well. Therefore, I think it only right that Mr. Brdjanin

2 should hear the point that is being made.

3 The second matter is handwriting is now apparently in dispute in

4 General Talic's quarter. In the response to the agreed facts, it was

5 disputed that some unidentified documents bore -- which appeared to have

6 his signature, is his signature.

7 Again, we have written asking for those documents to be

8 identified, and that hasn't happened, unless there has been a fax

9 yesterday which I'm not aware of.

10 MR. ACKERMAN: Okay. Two things. Number one, the handwriting

11 exemplars will not be given. Number 2, there is a very comprehensive

12 decision with regard to handwriting exemplars which was issued by the

13 Trial Chamber in Celebici. We had, as I recall, at least a full day's

14 argument, full briefing and a very comprehensive decision. That decision

15 takes the position that handwriting exemplars are like statements of

16 witnesses, that they can represent -- that the witness is entitled to

17 remain silent and not give statements, also entitled not to give

18 handwriting exemplars, and in all those cases that involve the witness's

19 right to remain silent, that it is absolutely improper and totally

20 improper for the Prosecution to comment on his right to remain silent and

21 his silence or to comment upon his failure to give handwriting exemplars.

22 So not only is the Prosecutor not going to get them, but I suggest

23 that it's improper for her to comment to this Chamber that that somehow is

24 evidence of guilt on his part. It's just that we are not going to give

25 them, and we have a right not to.

Page 562

1 JUDGE AGIUS: Ms. Korner comes from a jurisdiction where that

2 practice has changed now.

3 MR. ACKERMAN: I know it has changed but I don't think it's

4 changed in this Tribunal.

5 JUDGE AGIUS: That's for me to decide later on. It's a question

6 of how legal it is and how correct it is to draw inferences. But again, I

7 would rather prefer that at the present moment -- first of all, your

8 client has every right to remain silent; there is no question about it.

9 So let's leave it at that. You have made a statement on his behalf, that

10 he is not going to make available specimens of his handwriting, and the

11 matter stops there for the time being. That will be pleasures yet to come

12 in due course, but at this point in time, we are not going to discuss it

13 any further and the matter is closed.

14 MR. ACKERMAN: Again, if you heard me trying to pre-empt your

15 right to make a decision on that, I was not doing that. I was telling you

16 what the jurisprudence of the Tribunal is today.

17 JUDGE AGIUS: I know.

18 Mr. Pitron, I understood that you wanted to say something?

19 MR. PITRON: [Interpretation] No, Your Honour. It seems to me that

20 my last statement was clear and that you understood it well. I can repeat

21 it, but I don't think that will be necessary regarding this particular

22 point.

23 MS. KORNER: I'm sorry, but I'd like a response from Mr. Pitron.

24 Am I going to be provided with numbers of the documents on which they say

25 the handwriting of General Talic is in dispute? And equally, I will make

Page 563

1 the same request, for whatever it's worth, that the General provide us

2 with samples of his handwriting, if it's going to be a matter of dispute.

3 JUDGE AGIUS: One moment. And while you are preparing to answer

4 those two queries, may I remind you, Mr. Pitron, that during the previous

5 conference, you had made a statement challenging the authenticity of a

6 number of documents, without specifying them, but you had also stated that

7 the -- there are documents that you were prepared -- or your client was

8 prepared to accept coming from the 1st Krajina Corps collection, and you

9 promised to give an indication to the Prosecution as to which documents

10 from the 1st Krajina Corps collection you were prepared to accept.

11 MR. PITRON: [Interpretation] I think it would be useful to recall

12 my position, which will respond to the request of Ms. Korner. There are

13 three types of documents.

14 The first are those bearing the signature of General Talic. There

15 is no reason for me, a priori, to contest the authenticity of those

16 documents. I repeat that they are very numerous. If, in the course of

17 the proceedings, it should appear to me that one of them is false, that

18 the signature of the General is false, I would let it be known. I will

19 provide the necessary proof for this, and the Court will judge. Today, I

20 am not aware of documents bearing General Talic's signature with an

21 imitated signature or a falsified one.

22 A second type of documents are those documents carrying the words

23 "signed for" or "za" in Serbo-Croatian. I frequently don't know the

24 signature that is on those documents. It is quite clear if those

25 documents were signed on behalf of General Talic, I would not know them,

Page 564

1 and therefore, I am expressing my reservation regarding the possibility of

2 confronting General Talic with those documents as coming under his

3 responsibility.

4 There is a third type of document, and those are the ones that are

5 attributed to General Talic and which strictly do not contain any element

6 of identification. There may be just a header on the document, a seal or

7 a signature. I do not have to prove that those documents come from

8 General Talic or do not come from General Talic. It is up to the

9 Prosecution to show if they really come from General Talic. It's not my

10 problem. It's theirs.

11 On these -- on the basis of these -- this differentiation, I do

12 not see why I should provide the Prosecution with any document at all, if

13 I have made myself clear.

14 JUDGE AGIUS: I think just close on this and we'll have to make a

15 break.

16 MS. KORNER: Your Honour wants to hear from me?

17 JUDGE AGIUS: Yes.

18 MS. KORNER: Your Honour, quite wrong. It is up to the Defence.

19 We have submitted an exhibit list in which we have set out all the

20 exhibits we intend to produce. If the Defence do not let us know that

21 these documents, the admissibility of that is disputed or the signature is

22 disputed, they go in as accepted documents. It is quite impossible for us

23 to go from one day to the next and suddenly Mr. Pitron announces that

24 General Talic, faced with a document, or a witness, faced with a document

25 that apparently bears his signature, is in fact disputed. Your Honour, we

Page 565

1 served a witness list and we made a request to both counsel -- not,

2 witness, I'm sorry, exhibit list - to let us know which documents are in

3 dispute. I understand that many of the documents - and I think it was

4 made clear - were in dispute. It is not right that the Defence can say

5 that --

6 JUDGE AGIUS: Actually, to be precise, one of the things that

7 emerged from the last Pre-Trial Conference, Mr. Pitron, was that you were

8 actually questioning the authenticity of all documents. This is how it

9 started. And in actual fact, at that point in time, we had a cross debate

10 asking sort of, "What's the situation then? Do I have to prove the

11 authenticity of each document?" And I told you, Ms. Korner, that may well

12 be a problem which you are prepared for now, and you should know, as an

13 experienced Prosecutor, how to deal with it, and you should have whoever

14 needs to confirm the authenticity of the document ready to give evidence.

15 MS. KORNER: Your Honour, I'm calling -- in connection with that,

16 the second witness after Dr. Donia will be the investigator.

17 JUDGE AGIUS: That is as a result -- that is something that came

18 up. Then Mr. Pitron realised, in my opinion, the consequences of what he

19 had stated, and he said, of course, what he is contesting is the

20 authenticity of those documents that purport to be attributed to General

21 Talic when, in actual fact, on the face of them, there is nothing to show

22 that they are attributable to General Talic.

23 MS. KORNER: I understand that exactly.

24 JUDGE AGIUS: He also said, "There are some documents which, of

25 course, we do not dispute the authenticity of." And he -- and he made a

Page 566

1 specific reference to some documents coming from the 1st Krajina Corps

2 collection. What that means, don't ask me. I don't know. I will learn

3 in due course what the 1st Krajina Corps collection means. But he

4 promised -- you promised, Mr. Pitron, to give an indication to the

5 Prosecution which documents you were not contesting, the consequence being

6 that all the rest was being contested.

7 MR. PITRON: [Interpretation] Yes, Your Honour. That's right.

8 JUDGE AGIUS: Let me break here, give you time to think about

9 this, and we will convene in a quarter of an hour's time. In the

10 meantime, we can have a coffee.

11 --- Break taken at 6.10 p.m.

12 --- On resuming at 6.33 p.m.

13 JUDGE AGIUS: Let's continue with this understanding, that --

14 THE INTERPRETER: Microphone, please.

15 JUDGE AGIUS: Because of -- thank you for reminding me. Yes, good

16 evening. Let's continue with this understanding, that because of

17 arrangements, interpretation and all that, we have to stop at 7.00. And

18 then what happens after that, I will tell you later. Because of the fact

19 that we are stopping at 7.00, I am going to postpone certain matters for

20 the time being. Finish off with Mr. Pitron first, listen to what he has

21 to say; then deal very briefly with the five motions of Mr. Ackerman now,

22 since you are prepared to provide the Tribunal with an oral response.

23 That's what I understood. Okay? And then we'll take it up from there.

24 So Mr. Pitron, please. I don't need to remind you what you are

25 supposed to...

Page 567

1 MR. PITRON: [Interpretation] The question that was asked by the

2 Prosecutor is whether I am going to provide her with a list of witnesses

3 that I am contesting. I have a simple answer. I will, of course, do that

4 on the basis of the documents that I received today, that is the list of

5 facts that she is going to submit to the parties, to the Tribunal, as part

6 of the trial which is about to begin. And so I learned about that list

7 today. This requires work with my collaborators who speak Serbo-Croat,

8 because I am speaking about the documents in Serbo-Croat. I am going to

9 verify them immediately, those that are on the list, and those that I

10 contest will be indicated to her on the basis, however, of the three-fold

11 definition which I provided a little while ago which, in my opinion, goes

12 a long way in reducing any uncertainties about the issue.

13 MS. KORNER: Your Honour, at total cross-purposes, I don't know

14 whether it's deliberate or not or because it's late, what Mr. Pitron is

15 referring to is we have given the Defence today a list of the documents

16 referred to in Dr. Donia's statement, the disclosure numbers. What I am

17 talking about is the schedule of all the exhibits in the case which the

18 Defence have had since we served the Rule 65 documents. I want to know

19 what -- if it's the greater, what they are prepared to admit. In other

20 words, whichever is -- I'm sorry -- whichever is the lesser, i.e. which do

21 they dispute or which do they admit? I refer again to handwriting. It is

22 no good Mr. Pitron suddenly announcing that a particular document that is

23 going to be produced by a particular witness the next day, the handwriting

24 is disputed. We are obviously, if we are told handwriting is disputed,

25 going to try and carry out analysis of some kind.

Page 568

1 In his response to the adjudicated facts, under (h), documents in

2 support of an international armed conflict -- and it may assist if I give

3 Your Honour a copy of this. It was in French originally, and we've had it

4 translated. And I'm sure Mr. Pitron can give you a copy of the original

5 if there's a dispute about the translation.

6 But if Your Honour turns to the last page, under (h), documents in

7 support of an international armed conflict, the documents referred to by

8 the Prosecutor in Part 9 of her pretrial brief are not agreed. A whole

9 series of documents come from unknown sources. The documents -- and this

10 is the particular paragraph -- the documents which according to the

11 Prosecutor are signed by General Talic do not bear his signature.

12 Now, unless I'm misreading it, that is an avowal that documents,

13 particularly within this context and many of the documents that are being

14 adduced in support of an international armed conflict, are military in

15 source, do not bear his signature. Now, is that saying that documents

16 which on the face of it are not signed for General Talic or on his behalf

17 but actually have his signature, it is disputed that that is his

18 signature?

19 JUDGE AGIUS: Ms. Korner, that particular paragraph and sentence

20 reads as follows: "The documents which, according to the Prosecutor are

21 signed by General Talic, do not bear his signature." So basically, we are

22 only referring here to those documents which, according to you, are signed

23 by General Talic. Those are the only -- not documents which are made

24 attributable to him because someone else signed on his behalf.

25 MS. KORNER: That's right.

Page 569

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10

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13 English transcripts.

14

15

16

17

18

19

20

21

22

23

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25

Page 570

1 JUDGE AGIUS: I read it as it is written and I understand it as it

2 is written, and as it is written, we are only talking of those documents

3 which, according to you, are signed by General Talic. He is saying, "They

4 do not bear my signature." That's where the matter starts and ends, as

5 far as I'm concerned. So he is not distinguishing between some and more

6 of those documents, which according to you are signed by him. He's

7 saying, "All those documents which according to you are signed by me, do

8 not bear my signature." This is how it reads. And this is how I have to

9 take it.

10 MS. KORNER: Quite right, Your Honour, and all I've asked for -- I

11 wrote a letter saying, "Can we have the numbers of the documents to which

12 you refer?"

13 JUDGE AGIUS: He can say, "You should know because you know which

14 documents you are saying are signed by me."

15 MS. KORNER: Thousands, literally, thousands.

16 JUDGE AGIUS: He is contesting them all. This is how I read it.

17 He is telling you - and this is what his attitude was last time, if you

18 recall - he is telling you here, "Documents which you say are signed by me

19 are not signed by me."

20 MS. KORNER: Yes, but that's what I mean, Your Honour. It isn't

21 clear, I'm sorry. It may just be me and it may be because it's late. Is

22 he saying simply the documents that we've adduced in support of an

23 international armed conflict or all the documents?

24 JUDGE AGIUS: No, no, no. We are referring -- this is inserted in

25 a numbered or lettered paragraph in his document, namely, documents in

Page 571

1 support of an international armed conflict. I do not have that sentence

2 generally applicable to the whole documentation, that we are talking of

3 documents which you are presenting in that context and which he is

4 contesting only on the basis that what you allege to be his signature is

5 not his signature. This is it.

6 MS. KORNER: In that case, Your Honour, because we -- can I -- may

7 I finish, Your Honour, please? The difficulty is if we don't get a

8 response to our letters, I have to raise all these matters in open court.

9 JUDGE AGIUS: I quite agree.

10 MS. KORNER: Can I just be told, in open court so that I

11 understand, it is only the documents inserted in the section international

12 armed conflict and referred to in our pre-trial brief that are the subject

13 of dispute? That where his signature on the face of the document appears

14 to be his signature, that is disputed? That's all I'm asking for.

15 JUDGE AGIUS: Yes, Mr. Pitron, the ball is in your court.

16 MR. PITRON: [Interpretation] I must be tired, Your Honour, but I

17 don't see what the problem is. I have replied with precision. I don't

18 have before me the document that I wrote, but listening to you rereading

19 it, I responded to the request of the Prosecutor, H-132, and I said,

20 documents relating to that paragraph [In English] international armed

21 conflict [Interpretation] that I am contesting the signature under the

22 conditions that I have specified. How can I put things differently? What

23 is not clear?

24 MS. KORNER: Your Honour, may I ask what is the difficulty in

25 giving us the numbers?

Page 572

1 JUDGE AGIUS: I, as a Defence counsel, wouldn't give you the

2 numbers either. I would tell you, "Listen, you know which documents you

3 are going to present in support of an international armed conflict. All

4 those documents that -- within that context that you are saying were

5 signed by me were not signed by me." Full stop.

6 MS. KORNER: Your Honour, it may be that matters are different in

7 Your Honour's jurisdiction, but beyond me, I cannot see why common

8 courtesy alone doesn't -- stops Mr. Pitron from giving me the numbers of

9 the documents. It's nothing to do with defence or anything like that.

10 JUDGE AGIUS: Probably -- not probably, you are definitely right,

11 but he probably has to go through tonnes and tonnes and tonnes or piles of

12 papers.

13 MS. KORNER: Your Honour, so do we. This is suddenly sprung on us

14 at the last moment. Up until now, in the countless Status Conferences

15 that we've had, not once was it suggested by anybody that we were going to

16 have to be dealing with handwriting.

17 JUDGE AGIUS: But everyone carries the responsibilities of his or

18 her actions. So basically, if this is the way that he has chosen to

19 follow, then obviously there are consequences to that. Your life may be

20 made a little more difficult. Surely you cannot say that he is not

21 telling you what he means. He is telling you here, "I mean all these

22 documents." Full stop. It could have been -- it might give rise to

23 problems later on. I'm quite aware of that. Because there may be

24 documents which are used for this context -- in this context but also in

25 other contexts and, in other words, they are not contested in one context

Page 573

1 and contested in another, but it's a question I wouldn't like to say much

2 more about it. I mean, everyone carries the consequences of his actions.

3 I mean it's --

4 MS. KORNER: Your Honour is quite right. It may not be that they

5 are aware of the consequences of the action.

6 JUDGE AGIUS: But that's not -- listen, I think I've said enough.

7 MS. KORNER: Very well. Your Honour, all I want to ensure then --

8 and I had my answer, as Your Honour says, the handwriting is the subject

9 of dispute.

10 JUDGE AGIUS: Oh, yes, definitely. So now, let's take these one

11 by one. Let's start with the first motion by Mr. Ackerman on behalf of

12 Mr. Brdjanin. In this case, I can mention the name of the witness, Robert

13 Donia. The motion is for the testimony of Mr. Robert Donia to be delayed

14 for a minimum of 30 days or not later than 21st of February, 2002. More

15 or less, we have tackled bits and pieces of it, I would say even the

16 substance of it, in conjunction also with the response of the Defence for

17 General Talic and also in the context of your motion.

18 So is there anything that you would like to add in regard to this

19 particular motion?

20 MS. KORNER: No, Your Honour. Simply, as Your Honour rightly

21 says, we've discussed this. My application would be that the case be put

22 back until Wednesday to give the Defence what Your Honour may consider to

23 be sufficient time to go through the previous material.

24 JUDGE AGIUS: Mr. Ackerman, would you like to add anything in

25 regard to your motion, taking into consideration what has been stated

Page 574

1 throughout by Ms. Korner?

2 MR. ACKERMAN: I think we have made serious efforts to deal with

3 the problems here today, Your Honour, and I am at least somewhat satisfied

4 that we are making progress in that regard as long as -- as long as the

5 Chamber is prepared to give me the time that is necessary to --

6 JUDGE AGIUS: The Chamber will give you --

7 MR. ACKERMAN: -- be prepared to cross-examine, then I'm happy.

8 That's what I'm really talking about in all these motions, is the

9 necessity of being prepared to cross-examine. Maybe I can make the job

10 easier for you, Judge, if I just say this: It seems to me that with

11 regard to the translation problems, that with these Banja Luka witnesses

12 and the documents that have not yet been provided, that there ought to be

13 some way to prioritise the translation process so that those get done

14 rather immediately, even if we just sort of suspend the rules of the

15 Tribunal for a little while and have them done unofficially rather than by

16 the Tribunal's staff so that the official ones can come later. I just

17 need to know what some of these documents say before I can be convinced

18 that I am ready to prepare myself to cross-examine the witness.

19 And I think probably waiting until Wednesday is going to help, but

20 it's only going to help if the Prosecutor can somehow undertake to get

21 into my hands those documents that have yet to be translated,

22 especially - most especially - the ones that have been provided to me

23 only in B/C/S and have not been translated into English. It just makes it

24 impossible for me to prepare a cross-examination because there may be

25 something lying there that changes the whole aspect of the cross. And so

Page 575

1 I think if we were to wait until Wednesday, and if those documents could

2 be provided as quickly as possible on a priority basis, then I suspect

3 most of the reasons --

4 JUDGE AGIUS: These documents relate to Donia's evidence, or not?

5 Because I understood throughout that those documents referred to something

6 else.

7 MS. KORNER: Yes, I think we've moved on to the next lot. The

8 documents, there are extra documents. I'm more or less confident that

9 they will be translated by Friday. So the Donia ones will be ready.

10 MR. ACKERMAN: And with the subsequent witnesses, if we can just

11 prioritise that process and get those done as quickly as possible, we can

12 move forward. And if it could be the mission at this point that the

13 witnesses that are next in line, that the untranslated documents with

14 regard to those witnesses get the highest priority. It makes no sense for

15 the people that are doing the translation to be working on a witness we're

16 going to call ten months from now when we are all concerned about a

17 witness we are going to call next week.

18 JUDGE AGIUS: It would be wise to prioritise, as you say.

19 MR. ACKERMAN: If we do that, I think we can solve a lot of

20 problems. If we don't do that, I can see that this is just going to be a

21 continuing, continuing problem.

22 JUDGE AGIUS: That would be a big headache. I would suggest --

23 MS. KORNER: I can tell, Your Honour, they are already at the top

24 of the priority list. Some of the documents, if I take the next motion as

25 it has been numbered, which relates to Witness 764, that's D7668 on the

Page 576

1 top, there's the -- you see paragraph 5 of that particular one.

2 JUDGE AGIUS: Yes.

3 MS. KORNER: The first document referred to has already been

4 disclosed, but we'll give, as I say, a "once in a lifetime" opportunity

5 and repeat the disclosure, there is a translation of that. The following

6 series of numbers to the words "and no Serbian translation," these were

7 all thrown up by the witness searches. They have been in for translation

8 but only went in in December because that's when the search actually threw

9 them up. They, in fact, relate to an arrest of the witness during the war

10 in Bosnia. What we can do is we can provide summaries, but it does just

11 occur to me, of course, that Mr. Ackerman does have a certain advantage in

12 that his co-counsel, of course, speaks the language, is a Bosnian.

13 JUDGE AGIUS: But, of course, Mr. Ackerman has referred to

14 previous case law of the Tribunal in other matters, not on this.

15 MS. KORNER: Yes. I mean, we're doing the best we can, but I

16 mean --

17 JUDGE AGIUS: I know it's a problem, and we have to live with it.

18 But we have to find a solution also. And what is important is what

19 Mr. Ackerman stated, and that is there is room for prioritising, and I

20 would suggest we do it municipality by municipality. I think that's where

21 the -- where you ought or your office ought, in conjunction with the

22 translations. And obviously, it has to be a concerted effort. But the

23 direction on the part of your office should be, for the time being,

24 concentrate on what needs to be translated municipality by municipality as

25 planned. You know, it's very important.

Page 577

1 MS. KORNER: Your Honour, that's the way, when we have sent in

2 requests to the translation unit. I may say I'm fully in favour of

3 Mr. Ackerman's suggestion, and that is that we use, I'm afraid,

4 unauthorised translations. Only if there is a real dispute about the

5 nature of the translation does it go in for revision. But I know that

6 the --

7 JUDGE AGIUS: I can live with that. I have nothing against it.

8 MS. KORNER: But the department that runs the translation does

9 have severe reservations about that, and I think there will be a problem.

10 With respect, I think it's something that perhaps Your Honours and the

11 translation unit will have to sort out.

12 JUDGE AGIUS: It's something that has cropped up already in

13 proceedings of this case and also in others, and also something that we

14 discussed, Judges, amongst ourselves recently.

15 MS. KORNER: Your Honour, our feeling is much the same, that we

16 should now, for expediency's sake, adopt the method that translation is

17 done by a not-fully-qualified member of the language staff. Only if there

18 is an argument as to the correctness of the translation will it go in for

19 revision. We can, if it helps, Mr. Ackerman -- and as I say, when we went

20 through these motions, we discovered that, according to our records, we've

21 disclosed a lot of these, and we can redisclose them with translation.

22 The only one, as I said, is the one in relation to the Witness 7.99, which

23 is in motion D7672. And Mr. Ackerman I think will write out the relevant

24 ERN numbers for us, and we will go and check them overnight.

25 JUDGE AGIUS: Yes. That, he promised to give in any case.

Page 578

1 MS. KORNER: Your Honour, with that in mind, from what I

2 understand, Mr. Ackerman is not pursuing those motions.

3 JUDGE AGIUS: Well, it's up to Mr. Ackerman to -- I mean, the way

4 I was trying to lead the debate was precisely towards that direction. But

5 of course, there are ifs and buts. And one if and but is your promise to

6 have translations of certain documents ready by Friday, and that is

7 crucial.

8 MS. KORNER: Yes.

9 JUDGE AGIUS: But we are all lawyers here, and you know, I mean,

10 it's...

11 MS. KORNER: Your Honour, in normal circumstances, it wouldn't

12 cause so much of a problem. But I don't know whether Your Honour has had

13 a chance to have any discussions with the Victims and Witness Units. It's

14 a complicated procedure.

15 JUDGE AGIUS: Yes, of course. I know what the problems are, and

16 it terrifies me.

17 MS. KORNER: That's why it's important to know before we bring

18 them here --

19 JUDGE AGIUS: I think what ought to be done is this: I mean,

20 having met you twice already here, I have more or less the conviction now

21 that I am dealing with reliable professionals. I don't doubt your words

22 for a minute, and I don't doubt your good intentions and the humungous

23 effort that you are all making in order to get things going.

24 I realise you all have difficulties, and please do know that I am

25 full of understanding. I know that the problems are enormous, not just on

Page 579

1 your side but also on your side, and in certain areas, your problems are

2 bigger than yours because you always have, to an extent, an advantage in

3 certain areas, especially when it comes to possession of documents.

4 What I was going to suggest is this: That I give, on the

5 understanding that the translation of Mr. Donia's report annexed to your

6 motion will be available in B/C/S not later than Friday, I make an order

7 today rejecting Mr. Ackerman's request for a delay in having him brought

8 here as a witness when we start next week, with the reservation that this

9 decision will be automatically reversed if the translation is not in place

10 on Friday. That's number one.

11 Number two, there is always the understanding - and I'm making

12 myself clear - that this, of course, is not intended to prejudice in any

13 way the rights of the defendants to a fair hearing, to be given every

14 opportunity to be prepared for cross-examination. That will be dealt as

15 we go along. I will be in a position, together with my colleagues who

16 will be joining me at the time, to be able to make an assessment, a

17 general assessment, as to whether we think Mr. Ackerman, for example, or

18 Mr. Pitron, should be in a position to make the cross-examination or not.

19 If we feel that it's a case of giving further time, we will give it. If

20 it's the case of saying, "No, maximum, you have until tomorrow morning,

21 and start your cross-examination," we will start the following morning.

22 So this is more or less the plan that I have.

23 With regard to the other motions, although there is an innate

24 urgency to them as well because we are talking about witnesses that you

25 have listed amongst the first to be produced, I see that there are two

Page 580

1 practical problems. One is your availability to provide Mr. Ackerman with

2 documents that he would like to have, not necessarily that has not been

3 delivered, but that he has not got at the present moment and which he

4 would like to have because he needs them, and I have your word that you

5 will be doing your utmost to hand them over to him.

6 MS. KORNER: Your Honour, we will hand over what we've already

7 disclosed.

8 JUDGE AGIUS: Then there is the question of translations again

9 here, but I think, as I read you, that should be a matter of a short time.

10 MS. KORNER: No, no. I'm not saying that, Your Honour. I'm

11 saying the translation of the Donia report, but I can't say that it will

12 be a short time before we give -- we get translation of the others. I

13 just can't say that. We are still dependent on the availability of

14 language staff, qualified or unqualified.

15 JUDGE AGIUS: But I think we will have to visit that position as

16 we go along, fully aware that, as you rightfully pointed out, Mr. Ackerman

17 is also assisted by someone learned in the B/C/S languages. I think

18 that's the way we have to approach it at the present moment.

19 MS. KORNER: Can I just ask? Your Honour is not intending

20 therefore, as I suggested, to put the case back to Wednesday which at

21 least makes it --

22 JUDGE AGIUS: No, no. It's my intention to put the case back to

23 Wednesday.

24 MS. KORNER: It is? Sorry.

25 JUDGE AGIUS: If there is no major opposition, and I don't foresee

Page 581

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Page 582

1 any major opposition. My intention also is that Mr. Donia, I will decide

2 today, now, in more or less in the way I have already stated.

3 MS. KORNER: Yes.

4 JUDGE AGIUS: The others, I will decide -- I will convene another

5 Pre-Trial Conference to finish off what the -- the few things that need to

6 be concluded Monday morning. Hopefully, that will be a short hearing.

7 And Wednesday, when we start the trial, there will be four oral decisions

8 on the remaining four motions of Mr. Ackerman, unless by that time,

9 because of the exchange of information and also the availability of

10 documents that may have been made in the meantime, he opts for a

11 withdrawal of one or more or all of those motions.

12 So that's the way I suggest we go about it. I would like to hear

13 Mr. Ackerman, however, if he's got anything to say about this, about my

14 suggestion.

15 MR. ACKERMAN: I think your suggestion is fine, Your Honour. I

16 think it's probably going to work. It really depends on how rapidly we

17 can get translations. Just -- I'll be very brief, but just as a matter of

18 candour, it seems to me that we are struggling mightily here to try to, by

19 fits and starts, get a trial going. I think we are really about two weeks

20 away from being ready. I think almost all these problems would be solved

21 if we waited another two weeks to start this trial. I don't think that is

22 in the cards. I don't think anybody in Chambers and everywhere else wants

23 to do that, but I can assure you that things would go a lot more smoothly,

24 and a lot of these things that are vexing and major problems today would

25 be gone two weeks from now and there would be a lot less problem. We are

Page 583

1 working rapidly. We've made a lot of progress since the last conference.

2 We are really, I think, a couple of weeks away from being ready.

3 JUDGE AGIUS: That would be wishful thinking, I think. Let's not

4 go into the merits of whether two weeks would provide us with the right

5 medicine and solve it all, a panacea. I presume the trial will start on

6 Wednesday.

7 MR. ACKERMAN: I presume that.

8 JUDGE AGIUS: And I'm sure things will fall into place as we go

9 along. You will also realise that we need to start, because if we prolong

10 it further and further, we will have more motions and more problems, and

11 we will never start. And then we will need a further two weeks and a

12 further three weeks. That's how it will go. I mean, please do remember,

13 Mr. Ackerman, you are older than I am but I have been a Judge for the past

14 25 years, and I know that in conducting this kind of orchestra, the

15 important thing is to start.

16 MR. ACKERMAN: Can you tell by looking at me that I'm older than

17 you?

18 JUDGE AGIUS: No. I know that you are older than I am.

19 MR. ACKERMAN: Do we have a sitting schedule of any kind so we

20 have some idea of dates we are going to sit?

21 JUDGE AGIUS: What I suggest is, first let me make the order. The

22 Chamber, in regard to motion -- now I have misplaced the motion -- the

23 number of the motion is -- is it this one on the right-hand corner?

24 [Trial Chamber and legal officer confer]

25 JUDGE AGIUS: The Chamber, with reference to motion by defendant

Page 584

1 Radoslav Brdjanin to delay the testimony of Mr. Robert Donia, filed on the

2 15th of January, 2002, having heard the parties, including also

3 submissions made by Defence counsel to defendant General Talic, in regard

4 to the response filed by same regarding -- to the motion by the

5 Prosecution dated 11 January, 2002, for the filing of the report of

6 Mr. Robert Donia as an expert witness, and having also seen the said

7 motion of the Prosecution of the 11th January, decides to reject the

8 motion of defendant Radoslav Brdjanin filed on the 15th of January, namely

9 the motion to delay the testimony of Robert Donia, on the understanding

10 that a translation into B/C/S of the report mentioned aforesaid will be

11 filed and communicated to the Defence, to both the defendants, by not

12 later than Friday, January the 18th. The Tribunal reserves the right to

13 modify or decide contrario imperio on this motion should the B/C/S

14 translation aforesaid not be filed as stated.

15 The motion by the Prosecution dated 11th January, 2002, for the

16 revision of expert witness Robert Donia is being acceded -- is being

17 acceded to on the same understanding, namely, that a B/C/S translation of

18 the report of Mr. Robert Donia be filed in the Registry of this Tribunal

19 and be communicated to both defendants by not later than Friday the 18th

20 of January.

21 The trial conference stands adjourned to Monday at 9.30 in the

22 morning, Monday, the 21st, 9.30 in the morning, with the understanding

23 also that the trial is scheduled to start on Wednesday, 23rd, at 9.00 in

24 the morning. And with the understanding also that if by that time the

25 other four motions referred to -- the other four motions from defendant

Page 585

1 Brdjanin and Talic that were discussed today and that were filed yesterday

2 would have not yet been -- would still be -- would not have been

3 withdrawn. In the meantime, they will be decided orally on that day. So

4 that is the understanding.

5 MS. KORNER: Your Honour --

6 JUDGE AGIUS: There is also the other matter that you raised, that

7 you drew my attention to, and that is Mr. Brdjanin's motion with regard to

8 those three or four witnesses on 92, that also will be decided orally on

9 Wednesday morning. However, if you feel that you need time to enter a

10 reply, I will give you --

11 MS. KORNER: We have replied.

12 JUDGE AGIUS: You have replied already.

13 MS. KORNER: The motion is quite old. It was in December. And we

14 replied almost straight away. I'm sorry, the one this morning.

15 JUDGE AGIUS: This is filed today.

16 MS. KORNER: Yes, Your Honour, I can reply orally. Can I hand

17 Your Honour or perhaps I can give it to Your Honours --

18 JUDGE AGIUS: This is what I mean. This is the document that was

19 filed today, and it's an objection and/or consent to Rule 92 bis witness's

20 statement number 1. And I won't mention names, but there are one, two,

21 three witnesses in particular, and the -- anyway, there are specific

22 requests with regard to each.

23 MS. KORNER: Yes, Your Honour. Your Honour, I think Your Honour

24 won't be able to make a decision without having the statements in

25 question.

Page 586

1 JUDGE AGIUS: Those are 92 bis statements, I understand?

2 MS. KORNER: These are the statements we wish to put in, and they

3 have got the attestation. Unless there's an objection, I propose to give

4 them to Your Honour now so Your Honour can see what's contained in them.

5 JUDGE AGIUS: I see. C'est la vie.

6 MS. KORNER: Your Honour, they are redacted in the only way that

7 Judge Hunt agreed, that is to say, their current whereabouts have been

8 extracted from the statements. But if Your Honour requires them, they can

9 be provided.

10 JUDGE AGIUS: Okay. So we can call it a day.

11 MS. KORNER: Your Honour, I'm so sorry. There's one last thing.

12 We haven't had any written or oral notification from the Defence in

13 respect of General Talic as to the -- whether they will accept those

14 statements. I would think it highly unlikely, but I'd like to know.

15 JUDGE AGIUS: Yes, Mr. Pitron has already told you once and twice

16 that he is tired.

17 MR. PITRON: [Interpretation] I don't accept these documents.

18 MS. KORNER: Well, then, Your Honour, I think it is better that we

19 deal with the matter in oral submissions. Your Honour will recall that I

20 did ask that from now on, because of the problems with the translation

21 French/English and so on and so forth, that we deal with matters orally in

22 Court.

23 JUDGE AGIUS: That's how I was going to deal with the other

24 witness. Okay, so you -- if I give you until tomorrow to reply to this

25 92 bis objection filed by Mr. Ackerman today, would that be enough, or do

Page 587

1 you require more?

2 MS. KORNER: I think we can probably -- given the --

3 JUDGE AGIUS: I'm asking you to say yes to tomorrow for a very

4 simple reason, because that would give me time to sit down with my

5 advisors, with my legal assistants, and work on it before the weekend

6 comes because then the weekend comes and everyone is alone.

7 MS. KORNER: Yes, that's why I asked about General Talic's

8 counsel, because Mr. Ackerman has given reasons why these people. They

9 have just said no, they don't accept them. But the point is they may not

10 accept them, but it's for Your Honour to rule. So they may want to

11 explain why they don't accept them.

12 JUDGE AGIUS: I don't think you are getting used to me as yet. I

13 don't ask these questions. My approach is you are all intelligent enough

14 to know what the position is. He hasn't said anything.

15 I certainly don't have to answer for any of the objections that he may

16 have raised because he hasn't raised any. He just said, "No, I object."

17 That's it.

18 Yes, Mr. Ackerman.

19 MR. ACKERMAN: I understand that there are actually written

20 schedules of when we're going to be sitting.

21 JUDGE AGIUS: Yes.

22 MR. ACKERMAN: I seem to be the only lawyer in The Hague that

23 doesn't have one, although nobody has been able to show me one. They

24 don't agree with each other.

25 JUDGE AGIUS: I had every good intention -- well, I started this

Page 588

1 Pre-Trial Conference today to finish it in about two hours. Of course, I

2 didn't know about this. I didn't know about the five motions. I didn't

3 know about a lot of things that actually came to surface very much

4 unexpectedly, and which were controversial. So the sitting went on much

5 longer than I anticipated. This was one of the major matters which I had

6 in mind of tackling. It will be done Monday. But it's very much on my

7 mind. I have got ideas. I have also got recommendations that I will

8 make, to make life easier for all of you and to enable you also to be able

9 to -- to enable you to programme ahead weeks in advance. But of course,

10 we don't have time today.

11 But please don't go back to your hotel or where you are staying

12 frustrated, at least on this point. Definitely this is something that

13 will be dealt with on Monday, also because I am sure that the Prosecution

14 also would like to know what the schedule is.

15 But I can also tell you, be prepared for this trial to be heard in

16 the mornings between now and March. It seems to be like that. After

17 March, I think we'll have to switch to an afternoon. If the sixth trial

18 doesn't start immediately, then we will explore together the possibility

19 of perhaps utilising any space or available courtrooms that we may have.

20 But again that's something that we need to discuss. I mean, I'm

21 not in a position to tell you more at this point in time. I mean --

22 MS. KORNER: Your Honour, I know that the interpreters have had a

23 very long day, but can I just mention, we have arranged the provisional

24 schedule for witnesses based on the Court calendar issued on the 9th of

25 January, which shows us sitting every morning until the end of March, bar

Page 589

1 two days which is a UN holiday and court maintenance, although they seem

2 to think we are going to sit on Good Friday as well, which I think is

3 unlikely.

4 The other matter is this, Your Honour: Your Honour, if Your

5 Honour is able to establish, and you may not be able to, the trial of

6 Stakic, which has been, we understand from the response to the motion

7 which I would like to revisit with Your Honour, as I think Your Honour

8 would, next Monday morning, if we could be given some idea of when that is

9 likely to start? For two reasons: One, it may affect how --

10 JUDGE AGIUS: May I interrupt you for a second and throw the ball

11 back in your court? Tell you -- you would help me a lot in giving you an

12 answer or in providing you with a solution if you tell me when it's likely

13 to have the Prijedor chapter or municipality come up in this trial.

14 MS. KORNER: Chronologically it comes up immediately after Banja

15 Luka. It was the first municipality to be taken over. Now, it's

16 unfortunate but we can do -- we can put it back, but we need to put it

17 back if there is to be any sort of connection, and that's why I need to

18 revisit this with Your Honour.

19 JUDGE AGIUS: Again, if you tell me Banja Luka, please forgive my

20 ignorance, but I will to have to ask you, okay, when does it start, when

21 does it finish?

22 MS. KORNER: The evidence? Well, that depends very much on --

23 JUDGE AGIUS: And Banja Luka Prosecution, Banja Luka also

24 Defence --

25 MS. KORNER: That's what I mean. I understand that it may be the

Page 590

1 witness who is coming immediately after the investigator will be in the

2 witness box for a week. That is -- that's the rough indication I've been

3 given. We've effectively worked out that the Banja Luka witnesses will

4 take us through until, at the very least, the end of February. That's our

5 rough estimation of how long we think cross-examination will last.

6 JUDGE AGIUS: Anyway, we'll talk about it Monday, okay? But the

7 Tribunal is appreciative of the problems that exist and we will try and

8 find a solution. Also to Stakic, but no joinder.

9 I also would like to thank the interpreters for their patience.

10 You have been most cooperative, and this Tribunal is very appreciative.

11 --- Whereupon the Pre-Trial Conference adjourned at

12 7.22 p.m.

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