Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4632

1 Friday, 19 April 2002

2 [Open session]

3 --- Upon commencing at 1.23 p.m.

4 [The accused entered court]

5 JUDGE AGIUS: [Microphone not activated] I see you smiling,

6 Mr. Ackerman.

7 MR. ACKERMAN: I said the other day I'm always happy, and I'm

8 particularly amused by Mr. Pitron.

9 JUDGE AGIUS: Can we have the case called, please,

10 Madam Registrar.

11 THE REGISTRAR: [Microphone not activated] Yes, Your Honour. This

12 is the case number.

13 THE INTERPRETER: Microphone, please, Registrar.

14 JUDGE AGIUS: Microphone, please.

15 THE REGISTRAR: Sorry. Okay. Your Honour, this is the case

16 number, IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir

17 Talic.

18 JUDGE AGIUS: So our usual procedure. Mr. Brdjanin, good

19 afternoon to you. Can you hear me in a language that you can understand?

20 THE ACCUSED BRDJANIN: [Interpretation] Good afternoon, Your

21 Honours. I can hear you and understand you. And I would like to report

22 that the microphone never works.

23 JUDGE AGIUS: Technicians, please -- it's working now. Okay.

24 General Talic, good afternoon to you. Can you hear me in a

25 language you can understand?

Page 4633

1 THE ACCUSED TALIC: [Interpretation] Good afternoon, Your Honours.

2 I can hear you and understand you. The microphone is not on.

3 JUDGE AGIUS: Whose microphone? General Talic's microphone is

4 definitely on, because I can see it switched on from here. Maybe it's not

5 near enough to register, but it's definitely on.

6 You may sit down. Thank you. Thank you.

7 Appearances for the Prosecution.

8 MS. KORNER: Your Honour, Joanna Korner and Denise Gustin,

9 temporarily absent.

10 JUDGE AGIUS: Good afternoon to you, Ms. Korner.

11 Appearances for Radoslav Brdjanin.

12 MR. ACKERMAN: I'm John Ackerman, and I'm with Tania

13 Radosavljevic. Good afternoon, Your Honours.

14 JUDGE AGIUS: Good afternoon to you.

15 Appearances for General Talic.

16 MR. PITRON: [Interpretation] Good afternoon, Your Honours. My

17 name is Michel Pitron, assisted by Natasha Fauveau-Ivanovic for General

18 Talic.

19 JUDGE AGIUS: Merci.

20 So yes, Ms. Korner.

21 MS. KORNER: Your Honour, just two administrative matters. One is

22 a matter of confirmation. We're attempting to try and rejig the original

23 list for the Sanski Most witnesses which that we provided. And when we

24 looked at the courtroom list -- and we're just trying to confirm this is

25 correct -- we seem to have nothing but Fridays off. And I'm concerned

Page 4634

1 about the Friday, the 17th of May, which says "court break," but

2 unspecified. And I'm simply wondering if that's correct, because we have

3 court maintenance the following week.

4 JUDGE AGIUS: Sit just one day?

5 MS. KORNER: On the week of the 13th of May, on what was issued by

6 the --

7 JUDGE AGIUS: I don't have any -- my recollection is that we don't

8 have any stoppages in May.

9 MS. KORNER: Well, we do, Your Honour, because on the 24th of May,

10 we have court maintenance on Friday, the 24th.

11 JUDGE AGIUS: But that's not what I meant.

12 MS. KORNER: No, no.

13 JUDGE AGIUS: Other stoppages.

14 MS. KORNER: I agree. Well, that's what I thought. But here

15 clearly on the 17th of May, on the court calendar issued, "court break,

16 unspecified." Does Your Honour know anything about that?

17 JUDGE AGIUS: No. To tell you the truth, Ms. Korner, my secretary

18 just brought up the updated agenda for the rest of April and May, which I

19 put on my desk and did not bother to look at because I said I'll take it

20 with me and have a look at it over the weekend. Also, I asked her whether

21 there were any changes, and she said no, except for the fact that we were

22 meeting today at 1.15 and Tuesday coming also we will be meeting at 1.30.

23 So that's the only two changes that I could see. But otherwise, I will

24 check this.

25 And perhaps, Inneke, you could contact to -- me the document up

Page 4635

1 here so I can check it.

2 But otherwise, I don't know anything about stopping on May 17th.

3 MS. KORNER: Well, nor did we, so we were somewhat surprised when

4 we saw this, Your Honour. But I think that can be dealt with perhaps

5 after the break so we can provide a new list on Monday morning -- Monday

6 afternoon of the order of witnesses.

7 JUDGE AGIUS: Correct.

8 MS. KORNER: Then the second matter is this: In respect of what

9 is to happen next week, as we know the present witness will continue into

10 Monday, and we would hope that he will conclude on Monday. The witness

11 from -- who is testifying presently in the Stakic case hopefully will have

12 finished by the end of Monday, and therefore we've proposed, subject to

13 Your Honours' leave, to interpose him here on Tuesday on the basis, as I

14 say, that he will not be asked to testify in chief again. May I make it

15 absolutely clear, the witness is deeply reluctant to relive, having

16 finished in Stakic, the events again. And therefore, we do not propose to

17 ask him any questions in chief but to tender as his evidence under Rule 92

18 the transcript of what he had to say in the Stakic case, which will

19 include, obviously, the cross-examination there.

20 We will provide at the end of today's session to both Defence

21 teams the transcript from yesterday and the transcript from today, and on

22 Monday they will get anything that's cross-examined to Monday.

23 I've explained to Madam Fauveau that the transcript of his earlier

24 testimony is provided for the purposes of cross-examination if so required

25 but that we do not propose to put that in under -- apply to put that in

Page 4636

1 under Rule 92, merely the transcript of what he testifies to at the

2 moment. And I hope that she's content with that.

3 JUDGE AGIUS: Yes. Let's hear what Madam Fauveau has to say about

4 that.

5 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, it will be

6 very difficult to give my opinion on, this because at this moment I don't

7 have this transcript and I won't be able to have it until the witness

8 finishes his testimony.

9 JUDGE AGIUS: The problem, as I see it, Ms. Korner --

10 Mr. Ackerman, do you --

11 Thanks, Madam Fauveau --

12 -- do you want to say anything about this?

13 MR. ACKERMAN: Well, no, I agree with Madam Fauveau with regard to

14 this matter. It's very difficult to make a decision about how you feel

15 about it.

16 JUDGE AGIUS: It is.

17 And indeed, Ms. Korner, I spent three-fourths of this morning

18 going through initially your request to have -- to have Rule 92 bis

19 applied to this witness; secondly, to his -- going through his statement

20 to the Prosecution; and also going through his previous testimony in

21 Tadic, especially in the context of the objection -- or the response made

22 by General Talic, as corrected. I was under the impression, and I still

23 am under the impression, that it was never your intention to tender also

24 the witness's statement to the Prosecution in evidence.

25 MS. KORNER: Correct.

Page 4637

1 JUDGE AGIUS: So -- and that's how I understood it. I did have a

2 major concern myself with this statement, at least with the copy that we

3 were given for two very simple reasons. Reason number one is that --

4 What's this?

5 -- That this statement is not signed, neither by the witness nor

6 is it witnessed by whoever translated or interpreted --

7 MS. KORNER: Your Honour, that's -- it's a very, very early

8 statement. You'll see. It's one of the first.

9 Your, I have no intention of seeking to apply to put that

10 statement in.

11 JUDGE AGIUS: Okay. But that, I wanted to make clear.

12 MS. KORNER: It was merely to give Your Honour some idea of what

13 he could say.

14 JUDGE AGIUS: Okay. The second document, that is, the transcript

15 of the deposition in Tadic, I went through and I am easily in a position

16 to discuss the matter with the other two colleagues. And I'm sure that

17 within a few minutes, we would be able to hand down a decision on whether

18 to apply 92 bis or not. But we certainly did not know or we were not

19 aware that your intention of having this brought into the -- into this

20 case was to make it available for the Defence for cross-examination

21 purposes. We are aware all along that the -- your motion for the

22 application of 92 bis concerns mostly and primarily the deposition that

23 the witness is presently giving in Stakic.

24 Now, the problem that I see it is this: How can you -- or how do

25 you expect us to be in a position to decide whether to say yes or no to

Page 4638

1 you without having first read these depositions to make sure that there is

2 nothing, for example, contained in them that -- that relates to any act or

3 conduct of any of the two accused? And how do expect us to expect from

4 the Defence teams to stand up and tell us, "Yes, we agree, or we don't

5 agree," before they have had a chance to go through these transcripts

6 themselves?

7 MS. KORNER: Your Honour, perhaps I can explain. And I think it

8 may be that it may be using Rule 92. What I am not anxious to do is to

9 take, for example, the transcript that -- of what he was asked in chief in

10 the Stakic case and ask exactly the same questions again. Your Honour, it

11 is, it seems to me, a total waste of time, can lead to problems, in any

12 event, because the answers may not be identical in one form or another.

13 And it's, in our submission, unnecessary.

14 What I propose to do -- and whether it comes under Rule 92 or

15 Your Honours' general powers under Rule 53 or 54 -- I forget whichever it

16 is now -- to ask the gentleman to come in, go into the witness box, and

17 ask him whether he testified truthfully in the Stakic case and these are

18 the answers he gave, full stop. Whether or not he gives evidence that

19 directly implicates the accused or not -- gave evidence -- and I

20 anticipate in one sense he's going to mention certainly Mr. Brdjanin,

21 because it's relevant both to the -- the joint enterprise and the Stakic

22 case. It is then open to Mr. Ackerman to cross-examine him on what he

23 said in that -- in his testimony in Stakic.

24 Now, Your Honour, everybody appreciates that this is not the most

25 desirable way to proceed.

Page 4639

1 JUDGE AGIUS: What I don't want is to create rules in addition to

2 what we have or rules which go beyond the rules that we have, making it

3 possible to admit previous testimonies of -- of a witness not according to

4 the specific ad hoc procedure provided in the rules, but in a novel way

5 which bypasses what the rules provide, in Rule 92 bis. This is the

6 problem. If there is the consent of the Defence, I have no problem in

7 doing it. In other words, I -- I do see the validity of what you are

8 submitting from a practical approach. But I think you need to understand

9 also that it's very important that you have the consent of the two teams

10 to go along. Because otherwise, it's -- the deposition is not -- the

11 transcript does not contain only the deposition of the witness, but it

12 contains also the questions asked by the Prosecution.

13 MS. KORNER: Yes.

14 JUDGE AGIUS: And please don't forget that to every question there

15 is potentially the right of the Defence counsel -- of Defence counsel to

16 raise an objection. And the witness can confirm what he stated, but he

17 cannot confirm the legality or the correctness -- procedural correctness

18 of the questions asked.

19 MS. KORNER: Well, I suppose Your Honour, one could say that I

20 should be -- if Madam Fauveau sits down for a moment so I can finish, and

21 then she can make her objection.

22 JUDGE AGIUS: I will give you the opportunity, Madam Fauveau.

23 MS. KORNER: Your Honour, may say that I very much doubt that

24 given the way that that particular court is run that incorrect questions

25 would not be objected to or the point taken. But I take Your Honour's

Page 4640

1 point in principle. It may well be that it isn't in fact Rule 92 that's

2 the way to deal with this. I think it's probably Your Honours' general

3 powers, subject to there being no unfairness to the Defence under Rule

4 50 -- let me just find the rule now. Sorry, -- Rule 54, which is a

5 general rule to really cover all situations, "the request of either

6 party, a judge, or a Trial Chamber may issue orders, summons, subpoenas,

7 warrants, transfer orders as may be necessary for the purpose of

8 investigating -- for the purpose of investigation or for the preparation

9 or conduct of the trial." So the order we would be asking you to make

10 would be in relation to the conduct of the trial, that it was unnecessary

11 to make the gentleman repeat his examination-in-chief, and he may simply

12 adopt what he said in the Stakic trial.

13 Now, Your Honour, I appreciate the point that Your Honour makes

14 that until you see the transcripts, it is more difficult to make such an

15 order. Your Honours and the Defence teams will have them this afternoon.

16 Monday is going to be cross-examination only. And the main part that we

17 are concerned about is examination-in-chief.

18 JUDGE AGIUS: Yes. The problem, Ms. Korner -- this is why I'm

19 telling you that you will need the consent of the other -- of the other

20 side. The problem is very simple: If a particular matter is regulated by

21 a special law or provision of the law, even if there are 100 other

22 provisions of the law which are of a general nature, that special rule

23 will always prevail over the general rule, and that's the rule that has to

24 be applied. I mean, I don't think that the Trial Chamber has a rule --

25 has a right to apply a general rule which goes beyond what -- beyond a

Page 4641

1 special rule that exists governing that particular event or that

2 particular question. This is -- this is the problem that the Trial

3 Chamber will probably have or will -- will probably have to sum out.

4 MS. KORNER: Well, Your Honour, I have to say you're dealing with

5 a unique situation.

6 JUDGE AGIUS: I know. I know.

7 MS. KORNER: And basically speaking, I think -- sorry, what I

8 think is not relevant. It is my submission that the reason for the

9 incorporation of a general rule was to deal with situations that came out

10 of the norm, and this is one of them.

11 Your Honours, it may well be that we will have to revisit this

12 matter on Monday once Your Honours have seen the transcripts.

13 JUDGE AGIUS: Yeah. That's important.

14 MS. KORNER: But --

15 JUDGE AGIUS: That's important, for sure.

16 MS. KORNER: Your Honour, may I say that -- I'm now repeating what

17 I said and what was said in the motion, what was said to Judge Schomburg,

18 that if the Statute enjoins upon the Trial Chambers to offer such

19 protection as is consistent, obviously, with the rights of the accused or

20 any unfairness -- and we would say it would be difficult to see what the

21 unfairness was, subject to looking at the transcript -- then to make these

22 witnesses live and relive the testimony in chief within hours or days of

23 the -- of having just been assigned to another Chamber.

24 JUDGE AGIUS: That is -- that is why I -- my suggestion to you, if

25 you can call it a suggestion -- I would prefer to find another noun for

Page 4642

1 it. I think it will be much better if you seek the consent of -- of the

2 Defence and work in that direction between now and when this witness is

3 likely to come forward. In the meantime, I would like to know -- to hear

4 what Madam Fauveau had to say.

5 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, when I

6 objected to the admission of the testimony of this witness in the Tadic

7 case, I was wrong to say that the witness did not have a chance to see

8 his testimony, because he did. He did have a look at it. He did reread

9 it. In this Stakic case, he will not have a chance to see -- to review

10 the testimony in B/C/S. The transcript will only be done in English. And

11 now we know even with the perfect interpretation there could be a tiny

12 error, a minor error, and this minor error could have -- it could have a

13 great importance. "Yes" could be a "no" or otherwise. So it would be

14 very difficult for me to accept testimony in a language which is not in the

15 language of the witness unless he has reviewed it in his own language.

16 This is an objection of principle.

17 And I have another one which is a question of form. If we receive

18 this testimony Monday evening -- because we are working Monday afternoon

19 -- I really don't see how I can prepare cross-examination in one night,

20 even if I get one part of the testimony today.

21 JUDGE AGIUS: Another problem, I'm checking whether he speaks

22 English or not or whether he has a knowledge of the English language. It

23 seems that he doesn't.

24 No, no. Wait.

25 MS. KORNER: Your Honour, I can say he doesn't. I mean --

Page 4643

1 JUDGE AGIUS: He doesn't.

2 MS. KORNER: Well, not enough to be able to review his --

3 JUDGE AGIUS: He doesn't. Exactly.

4 MS. KORNER: Your Honour, I see Mr. Affect, I'm going to sit down

5 in a moment.

6 But I should say that that aspect is not applicable, because he's

7 not going to be asked to review it and say whether that's accurate.

8 That's a matter of cross-examination. What he's going to be asked is,

9 "Did you testify truthfully?"

10 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, if --

11 JUDGE AGIUS: Yes.

12 MS. FAUVEAU-IVANOVIC: [Interpretation] I'm sorry. But if the

13 witness does not know what is in the transcript in English, then perhaps

14 he thought that he said everything that is truthful, although there could

15 be a mistake in the transcript.

16 JUDGE AGIUS: The point being made by Madam Fauveau is a very

17 simple one, that the witness sitting there telling us, "Yes, Ms. Korner, I

18 confirm on oath that what I testified in the Stakic case, these one, two,

19 three, is the truth, the whole truth, and nothing but the truth." But

20 what he is confirming is his testimony. He is not confirming that the

21 transcript reflects a hundred per cent, especially the transcript in

22 English reflects 100 per cent truthfully, correctly to the -- to the

23 minutest detail everything that he stated. And in fact, we do get

24 mistakes --

25 MS. KORNER: Your Honour, I'm about to say. I mean, there's no

Page 4644

1 question about it. When I look at the transcript, I could spend three or

2 four hours correcting all the errors. There's no question but that the

3 English transcript, when it's all done through translation, it's clearly

4 not a word-for-word translation of what's being said.

5 But Your Honour, that having been said, if necessary, if there are

6 errors which turn up, they can be corrected later. The important thing is

7 not that what the transcript that they have been given is accurate in

8 every word but that the witness confirms that when he testified in the

9 other case about the matters upon which he was asked, he told the truth.

10 Now, Your Honour, every single transcript -- or indeed every

11 single statement that we've put in, there are bound to have been errors.

12 JUDGE AGIUS: Okay. But the witness can only confirm his

13 testimony. He cannot confirm the transcript.

14 MS. KORNER: No. All right. It ...

15 [Trial Chamber confers].

16 JUDGE AGIUS: Yes, Mr. Ackerman. Yes, please.

17 MR. ACKERMAN: I have a couple of things to say about it, Your

18 Honour. The first thing is I may be mixing up witnesses, but I thought

19 Ms. Korner told us yesterday that this witness's testimony did not

20 directly implicate either one of the defendants in this case. She now

21 tells us this morning that he is going to say something about Mr.

22 Brdjanin.

23 The lawyers in the Stakic case have no motivation whatsoever to

24 consider objections to testimony about the defendants in this case, and so

25 it's very likely that an objection would have been interposed to that

Page 4645

1 testimony by me if it was in this case. So that's one issue.

2 The second one is this: I have every sympathy with the difficulty

3 that some of these witnesses have in coming here and telling their

4 stories, but these are trials and that's what witnesses must do in

5 trials. We didn't file these indictments. The Prosecutor did. It's the

6 Prosecutor's obligation to bring the witnesses and prove their case. If

7 we wanted to keep the witnesses from having to go through trauma, what we

8 would do is put each witness on the witness stand and say, "Is everything

9 you said in your statement true?" And then let us cross-examine them and

10 be the bad guys who make them talk about the trauma of the situation. We

11 can all agree that that would be decidedly unfair and ridiculously unfair,

12 and this is just a tiny step removed from that. And especially if it's

13 the case that he's going to say anything about my client, then I cannot

14 possibly accept Ms. Korner's suggestion.

15 JUDGE AGIUS: Yes, Ms. Korner.

16 MS. KORNER: Your Honour, when I said he didn't give direct

17 evidence against either accused, he does not. He's going to mention

18 Mr. Brdjanin, because like half the world, he heard Mr. Brdjanin speak on

19 the radio or whatever, as I understand it. I mean, I haven't

20 double-checked on what that is. But he's never met him or anything of

21 that nature. Certainly as far as I'm aware, the evidence that he's going

22 to give which affects General Talic,-- not following that. Because he's

23 going to deal with the subordinates of General Talic who were operating in

24 Prijedor. And of course -- and that's the point that Madam Fauveau made

25 in her motion.

Page 4646

1 Your Honour, of course in normal circumstances, witnesses are

2 called to testify in full unless the Defence accepts what they have to

3 say. But Your Honour, this is a situation where the witness has be called

4 in full, is on oath when testifying, and the matters of admissibility and

5 whatever have been dealt with.

6 Your Honours, appreciating that it is not entirely the normal

7 practice in this Court, it is not -- I am not at all clear, and it may be

8 that that can be put to Your Honour -- what the unfairness is to the

9 Defence who will have the full rights to cross-examine, leaving aside

10 whether any of the questions were admissible or not. But they will have

11 every opportunity to cross-examine on any aspect of the testimony.

12 Now, Your Honour, Madam Fauveau's other objection, I raised this

13 early last -- early this week. And I can't remember what day it is now.

14 And so there has been adequate notice that this is what we wanted to do,

15 and therefore that the time for preparation of cross-examination --

16 JUDGE AGIUS: Well, but I think -- I think, Ms. Korner, my last

17 words to you would be along these lines. I think you are intelligent

18 enough -- not I think. I know that you are intelligent enough to realise

19 that there are certain problems which are not just of a legal nature, but

20 more importantly of a practical nature that can prevent you from getting

21 where you would like to get. And precisely the most important one is that

22 we're talking of your wish to bring forward this witness or your hope to

23 bring forward this witness on Tuesday, knowing that today, Friday at 2.00,

24 none of us is in possession of the transcript of the testimony of this

25 witness in Stakic, and knowing also that he's still got another day-

Page 4647

1 that's Monday - to conclude his evidence, if he concludes his evidence on

2 Monday. I mean, I have discussed it with Judge Schomburg to make sure if

3 he anticipates this witness to finish his -- to finish his testimony on

4 Monday, and that is expected, I can say, that Judge Schomburg expects this

5 witness to finish on Monday. But even if this witness finishes on Monday,

6 we will be sitting in the afternoon from 2.15 till 6.30, and then we are

7 expected to read the transcript of Monday's sitting, if it's ready -- and

8 presumably, there is no reason why it shouldn't be ready by the time we

9 leave this Tribunal, because Stakic is heard in the morning. But I think

10 there are practical problems that you ought to keep in mind. And it is

11 precisely and mainly because of these practical problems that again, my

12 exultation is try and see if you could at least agree with the Defence on

13 the basics. If there is, for example, any reference in his testimony to

14 either of the accused, then there will be some sort of a pre -- an

15 agreement reached beforehand between you and -- that those parts will be

16 redacted. But I don't know. Otherwise, you are going to have problems.

17 Because how do you expect the Trial Chamber, then, to apply a general rule

18 when there is a specific rule that tells you not -- that restricts the

19 Chamber's -- or the Tribunal's powers of admitting transcripts of evidence

20 given by a witness in proceedings before another -- I mean, this is the

21 problem.

22 I mean, I can see -- I can envisage special, rare circumstances,

23 when one might say go to 54 and bypass 92 bis. I will be very reluctant

24 to do that, but I do not exclude that there may be the possibility, but

25 not if there's an allegation that the transcript contains acts --

Page 4648

1 evidence on acts -- on the acts and conduct of either of the accused. How

2 can you expect me to do that at that point in time?

3 MS. KORNER: Your Honour, may I say this was a problem that

4 occurred to us. There are specific reasons. One is that this witness is

5 reluctant to go through this all again. There's no question about this.

6 And I make this clear.

7 JUDGE AGIUS: Every witness.

8 MS. KORNER: It's virtually an incitement to the Defence to

9 object, that way they won't get the evidence in. But I have to make it

10 absolutely clear that this witness, having said that -- having agreed to

11 come, effectively agreed to testify only in one more trial. He'd had

12 enough. It took some persuasion to persuade him to enter into yet another

13 case immediately after finishing this one. And one of the reasons was

14 that he said he really couldn't go through the whole thing all over

15 again. He was willing to submit himself to cross-examination. And I make

16 that absolutely clear, Your Honour. And afraid this is a problem that is

17 going to arise over and over again. I take Your Honour's point. I will

18 attempt in the hopes that we can reach some agreement once we get the

19 transcript of today's so as to speak to both sets of Defence counsel

20 tomorrow.

21 JUDGE AGIUS: I think. Because you also have to keep in mind

22 that -- I mean, I for myself and the other two Judges, I mean, I just

23 received documentation on -- for the plenary that we have on Tuesday,

24 which we have to read through and prepare ourselves, also perhaps prepare

25 notes and our comments. I mean, there is a limit on how much to expect

Page 4649

1 from each and everyone over the weekend, because this is what --

2 MS. KORNER: Well, Your Honour --

3 JUDGE AGIUS: This is what we're talking about, Your Honour.

4 MS. KORNER: I understand. And I hope this won't arise again. It

5 has only arisen by this because of what happened -- nobody appreciated, I

6 think properly, the stance that was going to be taken in the Stakic case,

7 and it's only that because it started this week that we've realised the

8 problems.

9 In normal circumstances, I would be says of course there should be

10 more time and we'd try and put the witness back. But he has been here

11 some days already. He has a job. And it's -- he needs to go back as soon

12 as possible. And so that's the reason why I wish to put him in on

13 Tuesday, rather than putting him back.

14 But Your Honour, all I'm doing -- I appreciate I'm raising a

15 number of problems for the Trial Chamber, but I'm saying that it's

16 important that Your Honours, if possible, should hear from witnesses who

17 have relevant testimony to give. I mean, that's all I can really say.

18 JUDGE AGIUS: Yes, Mr. Ackerman.

19 MR. ACKERMAN: Your Honour, I must again protest. I think this is

20 the second time now in two days that Ms. Korner has accused the Defence of

21 obstructing her efforts to put on evidence by asserting the rights of the

22 defendant. And I just really resent that, and I think she should be

23 instructed to stop doing it.

24 JUDGE AGIUS: Okay. Point taken, Mr. Ackerman, yes.

25 MR. ACKERMAN: I have right to make the argument I make. And I

Page 4650

1 have every right to insist upon Rule 92 bis being followed.

2 JUDGE AGIUS: You certainly have. And if the approach is towards

3 a sort of amicable settlement or arrangement, I think the least said is

4 the better and mark time, and take every opportunity to --

5 MS. KORNER: Your Honour, can I say straight away I absolutely

6 accept the right of the Defence to do whatever they can within the rules

7 to ensure that their clients are defended as best they can do it. So I'm

8 making no complaint about that.

9 JUDGE AGIUS: Okay. So this matter now I'm bringing to an end.

10 Next I have the timetable -- the schedule -- called "schedule,"

11 now. And you are right, Ms. Korner, it seems to me that --

12 MS. KORNER: Can I ask why there's a break?

13 JUDGE AGIUS: Don't ask me.

14 MS. KORNER: No. Sorry. I can't ask you.

15 JUDGE AGIUS: Can I ask the Court why there's a break?

16 JUDGE AGIUS: I think it's a mistake. I do not recollect -- I can

17 check in my own personal file, because I keep one at home and one here,

18 but only I know where it is. I do not recollect that apart from the court

19 maintenance break on -- stoppage on Friday, 24th May, we had any other

20 stoppages in May.

21 MS. KORNER: Your Honour, I remember we went through a list of

22 dates with Your Honour --

23 JUDGE AGIUS: Yes. No, no, no.

24 MS. KORNER: The 17th of May never figured on it.

25 JUDGE AGIUS: No, definitely not. So I will deal with that.

Page 4651

1 Yes.

2 THE REGISTRAR: I can just have a quick word to end this one. This

3 is a tentative calendar. So always subject to change.

4 MS. KORNER: Well, it's no good having a tentative calendar

5 when we're trying to organise witnesses, I must say. So I have to know --

6 JUDGE AGIUS: No. But not only that. It's not just you who has

7 to organise witnesses. But I -- I already had the previous schedule that

8 I was given and the previous and the previous definitely did not show --

9 THE REGISTRAR: It's being updated all the time.

10 JUDGE AGIUS: Definitely did not show a stoppage on the 17th of

11 May. That I can assure you of, because I keep a separate agenda for

12 myself, which includes not just court sittings but everything else,

13 including birthdays. So I have a separate agenda. And I can assure you

14 that on May, the only day which I had blank, as far as court sittings is

15 concerned was the 24th. That much I remember. But no other day. So I

16 think --

17 THE REGISTRAR: Let me look into this matter, and I will get back

18 to you as soon as possible.

19 JUDGE AGIUS: Yes. So look into it and report to me. And we need

20 to confirm to the Prosecution and to the Defence that we will be working

21 on Friday, the 17th of May.

22 So take it that that's how it will be, Ms. Korner. Unless I am

23 going completely astray and have forgotten something important, but ...

24 MS. KORNER: Your Honour, yes.

25 And then finally -- and this is not administrative. There was

Page 4652

1 yesterday, Madam Fauveau made an objection in respect of a question I

2 asked. Yes. And there's -- as a result of that, there's a document that

3 I'm going to put in which is not on the list and which I'm now going to

4 hand to Your Honours and to --

5 JUDGE AGIUS: Okay.

6 MS. KORNER: -- Defence counsel.

7 JUDGE AGIUS: Have you shown it to Madam Fauveau already or not

8 yet?

9 MS. KORNER: No. I haven't had a chance. It was being brought

10 down when we started. But it's one that's been disclosed. The disclosure

11 number was 4.1763. And I think Madam Fauveau must be aware of it because

12 of the objection she made to my question.

13 Your Honour, can I say that the English version, which I'm handing

14 out, will need reversion because on the original B/C/S version, there's a

15 date, and that's been missed off.

16 JUDGE AGIUS: Wait. I have -- what's this? I have -- did you

17 give me four?

18 MS. KORNER: It's a document that consists of four pages.

19 JUDGE AGIUS: Yes. No, no, no. The registrar gave me four

20 copies.

21 MS. KORNER: The date on the original B/C/S version is the 14th of

22 June, 1992. And Your Honour -- if Your Honour goes -- you'll see the

23 signature at the end. And the original has actually got a signature.

24 It's not been reproduced.

25 JUDGE AGIUS: Why do they translate everything but, of course, not

Page 4653

1 the date?

2 MS. KORNER: We're going to have it revised, Your Honour.

3 JUDGE AGIUS: Okay.

4 MS. KORNER: Thank you.

5 JUDGE AGIUS: Two final things that I myself would like to raise.

6 Number one is the -- your suggestion or request regarding witnesses 3 and

7 7 in Stakic were -- who are expected to give evidence by videolink, I have

8 discussed it with Judge Schomburg this morning. I've also discussed it

9 with -- obviously with the other two Judges. The situation is that each

10 Trial Chamber is entitled to take an independent decision on the matter.

11 And it is the decision of the other Trial Chamber that the videolink that

12 will be scheduled will be for that trial, with no one else intervening,

13 either in the course of the examination-in-chief or afterwards while that

14 court is sitting. So there is no point in us trying to argue in any -- or

15 different manner or come to any different conclusion if the other

16 Tribunal -- if the other Chamber has already taken the decision. And I

17 was watching the session -- the sitting this morning on my monitor in my

18 Chamber, and that was after I had already met with Judge Schomburg. So

19 the position is you will find us very cooperative, as you may have

20 gathered yesterday. But there is no way -- also I understand because of

21 technical problems that there could be that there would be one

22 cross-examination, in chief in one trial, the course of which the Defence

23 teams in this trial could, for example, object while the question is being

24 put by the Prosecutor in that other trial. So it's a little bit

25 complicated, but I think the -- what we are saying is clear enough. We

Page 4654

1 will -- you will have to make other arrangements. I understand also that

2 there is a -- the facilities for the videolink are or will be situated

3 such as not to inconvenience much any of these two witnesses. That's what

4 I am informed. So that's --

5 MS. KORNER: So may I just make sure I understand this. It is not

6 possible in the light of the ruling made in the Stakic case for the

7 witness, particularly Witness number 3, to only give evidence once in

8 chief to be watched by both.

9 JUDGE AGIUS: The problem -- the problem, Ms. Korner, is a very

10 simple one: If the Defence teams agree, we could, without participating

11 directly ourselves as a Trial Chamber in that exercise. In other words,

12 in the examination-in-chief, we could view it, but that would entail the

13 Defence in -- teams in this case would be renouncing to their effective

14 right to object to any of the questions that you may be -- you -- when I

15 say "you," the Prosecutor -- may be putting in the Stakic case. Now, if

16 that is acceptable to the Defence, we could do it. If it's not and there

17 is another remedy, we will find it. But you will understand that there is

18 no point in trying to reach a different decision which wouldn't --

19 wouldn't make sense. I mean, let's try and find the solution.

20 MS. KORNER: I --

21 JUDGE AGIUS: If there is a solution.

22 MS. KORNER: There's no question about the -- it doesn't take

23 anybody any further if you make a different decision from Judge Schomburg.

24 There has to be a agreement.

25 JUDGE AGIUS: It doesn't make sense.

Page 4655

1 MS. KORNER: There has to be a agreement I was saying I was hoping

2 you could enlighten Judge Schomburg as to the difficulties we're --

3 JUDGE AGIUS: It's not a question of enlightenment. It's a

4 question of discussing. We've discussed it. It's not a question of what

5 I would have preferred. I'm not even saying that I would have preferred

6 it in a different manner. I don't fancy the idea, for example, of having

7 two Chambers sitting separately and while you are putting -- putting

8 questions to the witness in examination-in-chief, all of a sudden you get

9 Mr. Ackerman's round face from the next Chamber, from the other Chamber

10 saying, "I object." I mean, it's -- there are problems. There are

11 problems. And I think we will need to find another solution. As I said,

12 you will find us cooperative. We have discussed it already. We will be

13 able to cooperate with you to reduce as much as possible the stress on

14 these two witnesses, the stress on the Prosecution as well, having to

15 re-examine these witnesses. And we could possibly, as I said, agree that

16 we would watch the evidence here there would be a link between this

17 Chamber --

18 MS. KORNER: Well, then Your Honour has the same problem though,

19 as we've just raised in respect of this person I want to interpose. If

20 it's to be treated as the evidence in chief, that's exactly the problem

21 that Your Honours raised in a different way.

22 JUDGE AGIUS: No. But in that instance you stand a better

23 chance -- no. Because you stand a better chance if he's giving evidence

24 and it's being controlled here, it's being controlled in the sense that

25 he -- he or she will be testifying in Serbo-Croat.

Page 4656

1 MS. KORNER: Yes.

2 JUDGE AGIUS: But there will be interpretation -- simultaneous

3 interpretation at the same time. And I'm sure that, as has happened in

4 the past in this trial, if there is something which is not interpreted

5 correctly, our attention will be drawn to that. The only problem that

6 arises is that if at any given time, Mr. Ackerman would -- or

7 Madam Fauveau would stand up and tell us, "I would have objected to this

8 question."

9 MS. KORNER: Well, Your Honour, that's what I mean. I mean, it's

10 the same. It's the same problem.

11 JUDGE AGIUS: Well, that -- we could find a solution to that. We

12 could find a solution. If -- again, it's practical -- being practical.

13 This is why in the very first day of this trial I told you, "Don't let any

14 bad blood run between you because there will be moments when you will

15 need -- you will need one another." And these are moments where you

16 definitely would.

17 MS. KORNER: Well, then, Your Honour, I'm making the formal

18 request so that it's clearly on the record that both sets of Defence

19 counsel, having read the transcript -- leaving aside the problems of this

20 man over the videolink, on this particular -- because the urgency is this

21 witness, 7.35. Having read the transcripts over the weekend, let me know

22 whether or not in their view whether they want any excisions. That

23 transcript can be admitted as his evidence in chief under whatever rule

24 it's required.

25 JUDGE AGIUS: Exactly. I mean, I think that would make

Page 4657

1 everybody's life easier and eliminate the problem that Mr. Ackerman very

2 rightly pointed out, and which would prevent us from admitting --

3 MS. KORNER: No. Your Honour, I thoroughly appreciate that, under

4 Rule 92. I'm saying that Your Honours have other powers. But I

5 understand --

6 JUDGE AGIUS: No. But not other powers to be exercised in a way

7 as to almost render Rule 92 useless.

8 MS. KORNER: Well, no, I don't -- well, Your Honour -- but I think

9 we've dealt with it. For the moment, I think we -- all we can do is leave

10 it that I'm making a formal request that the transcripts be read over the

11 weekend and on -- or on Monday morning and that on Monday afternoon I

12 could be informed as to what the situation is.

13 JUDGE AGIUS: Yes. I think that's fair enough. And I think the

14 Defence --

15 Yes, Madam Fauveau.

16 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I think that

17 we need to consult with our client after all.

18 JUDGE AGIUS: Yes, certainly. Definitely. But I think your

19 client, if he has a confirmation or a guarantee that anything contained in

20 the testimony of Witness 7.35, which mentions him is going to be redacted,

21 taken off. I don't think he's going to tell you no. I think he will be

22 very happy with that. So ...

23 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I have

24 another request to make.

25 JUDGE AGIUS: Yes.

Page 4658

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Page 4659

1 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the Prosecutor

2 provide us with the audiotapes in the B/C/S language.

3 MS. KORNER: The truthful and honest answer is I have no idea

4 whether we can get it that quickly. I think we'd have to ask the

5 Registry's assistance.

6 JUDGE AGIUS: Okay. Thank you, Ms. Korner.

7 Going back to May 17th. I am informed that a decision was

8 taken --

9 [Trial Chamber and registrar confer]

10 JUDGE AGIUS: In fact, I am told that apparently -- apparently - I

11 will investigate further -- but apparently there will not be any sittings,

12 not just ourselves, but there will be no sittings on May 17th. So that --

13 I will check that, Ms. Korner. And if I can avoid it, if we can sit, we

14 will sit.

15 MS. KORNER: Thank you very much.

16 JUDGE AGIUS: Thank you.

17 MS. KORNER: Thank you very much. Because when one looks at May,

18 it is a dreadful month for breaks. It really is.

19 JUDGE AGIUS: No. We're not supposed to have any breaks. But I

20 will look why. You know, I don't know. I can't give you more information

21 than that.

22 MS. KORNER: Your Honour, can I make it absolutely clear the

23 reason why is we are very concerned -- as is all cases in this Tribunal --

24 that we continue on a regular progress.

25 I'm sorry, the one thing I actually meant to say about next week

Page 4660

1 was this -- and then we've got -- because we were dealing with Witness

2 7.35. As regards the first witness from Sanski Most, who, as I told Your

3 Honour, is going to be a lengthy one because he's going to cover a lot of

4 the documents.

5 JUDGE AGIUS: His number is ...?

6 MS. KORNER: I've forgotten what his number is, actually. I

7 didn't bring the list down with me. I'm sorry. He's the one whose

8 statement we gave to Your Honours, the very lengthy ...

9 JUDGE AGIUS: Yes. It's 7.42, BT11. No?

10 MS. KORNER: No. He's not -- he's in open session. Just for --

11 JUDGE AGIUS: It's 7.193?

12 MS. KORNER: Yes, that sounds right.

13 JUDGE AGIUS: Yes, 7.193. That's correct.

14 MS. KORNER: Your Honour, we suddenly realised that he certainly

15 couldn't -- when I say "suddenly," when working it out -- that he would

16 not be completing cross-examination if he only started on Wednesday. And

17 indeed if he only starts on Tuesday, it's unlikely. And of course,

18 there's then two weeks, because the next week has been arranged -- and I

19 think everybody has made arrangements that we have that week off. And the

20 week after, the arrangements have been made for the witnesses that we

21 dealt with yesterday and the legal argument on Friday, the 10th of May.

22 And so it seemed to us that we ought to say although that may be a little

23 bit of a waste of time, that perhaps it would be preferable -- and I

24 imagine the Defence would prefer -- I'm sorry, it's 7.77, I'm told, not

25 7.193.

Page 4661

1 JUDGE AGIUS: That was number 3 --

2 MS. KORNER: Yes. He's number 1. I'm sorry. There is a

3 reorganisation. We're going to -- that's why we've been try today do get

4 the lists redone. But the Defence have been aware that that's the first

5 one.

6 JUDGE AGIUS: Yes.

7 MS. KORNER: That probably it would be preferable that

8 cross-examination didn't start until after that two-week break. But I'm

9 in the hands of Your Honours and my learned friends on that. But it's

10 simply -- it's quite clear that he wouldn't be able to complete.

11 JUDGE AGIUS: With regard to that particular witness, 7.77, we

12 have already the statements.

13 MS. KORNER: You do.

14 JUDGE AGIUS: And --

15 MS. KORNER: You have a list of the documents.

16 JUDGE AGIUS: Yes. But it also says "possible documents." Not

17 even probable. I mean, documents that possibly could be used. And there

18 is an entire list. I mean, my secretary tries to put, as I have

19 instructed her to do -- already she is probably in my Chamber trying to do

20 that now. It's going to be a whole list of documents.

21 MS. KORNER: Yes. Your Honour, the answer is because I'm trying

22 to avoid very much as possible the exercise that I started, going through

23 the Banja Luka documents that hadn't been looked at, and because of the

24 requirement the perfectly right requirement that we have indicia of

25 reliability of these documents. And this man can deal with most of the

Page 4662

1 documents that are in the Sanski Most binders that Your Honours have;

2 that's why there's this long list. The reason it says possible, is that

3 some of them -- we may well be that we will want to admit completely.

4 Because I'm dealing with this witness and I haven't yet had the

5 opportunity -- but come Monday, Your Honours will know for sure what the

6 list is.

7 JUDGE AGIUS: Okay. Thank you.

8 MS. KORNER: But that's -- so I'm raising that so that Your

9 Honours and the Defence know. And perhaps I could be told whether, if

10 that's possible, whether that suggestion i.e. that, he's not going to

11 start cross-examination until after the break is an acceptable one to Your

12 Honours and to my learned friends.

13 JUDGE AGIUS: We wouldn't have any --

14 MS. FAUVEAU-IVANOVIC: [Interpretation] No objection,

15 Mr. President.

16 JUDGE AGIUS: Okay. So you can take it --

17 MS. KORNER: Yes.

18 JUDGE AGIUS: -- Like that and work on it accordingly. Okay?

19 Thank you.

20 One final thing. Mr. Ackerman, at half past 2.00 this morning I

21 woke up with almost a nightmare. I just woke up, having just received a

22 motion from Mr. Ackerman saying that I have a problem which -- similar to

23 the one you had two weeks ago, which is going to keep me away from the

24 trial for two weeks. And I would like -- kindly ask for the adjournment

25 of the trial until my return. Now, on the previous occasion you had made

Page 4663

1 a declaration in your motion explaining why you believed that your

2 presence here is indispensable and that without you, we just couldn't go

3 ahead. I want a declaration from you that if anything of the sort or

4 anything like that happens again, we will not be told the same thing. In

5 other words, we want an assurance from you that should there be any

6 circumstances which unfortunately could keep you away from this Trial

7 Chamber for days or weeks, we would be in a position to go on. I think

8 you are understanding me.

9 MR. ACKERMAN: Your Honour, I totally understand you, and I wish I

10 could make -- give you that assurance. We are in the process and --

11 JUDGE AGIUS: I'm mentioning it now because I know that you will

12 probably have further discussions.

13 MR. ACKERMAN: We are in the process of dealing with all of these

14 kinds of issues. The whole question of -- of what's going to happen with

15 my support staff is a very open question, and I told you about that

16 yesterday. I have -- I will submit a letter to the Registry today

17 regarding that issue, and I will hope that there will come a time in the

18 very near future when I can give you the kind of assurance that you're

19 asking for, but I can't do it today.

20 JUDGE AGIUS: I'm not asking you to do it today. But I have

21 carefully measured my words, as you may have noticed. I am sure you got

22 the message. We have a duty to ensure that the trial goes on and that

23 there are no reasons which could stop the trial, due to a silly oversight

24 or to an unwarranted oversight, on the part of the Trial Chamber; not on

25 your part.

Page 4664

1 MR. ACKERMAN: Yes. Yes. Well, I mentioned to you yesterday that

2 if -- if in fact what is happening and what will happen within the next

3 day or two or three -- and I don't know how rapidly this can all get

4 done. If in fact what happens is that I lose my entire Banja Luka support

5 staff, then I will need to rebuilt a base basically in Banja Luka with

6 people who know nothing about this case and will have to -- I mean, the

7 people that I -- that I had, and that I hope I can continue to have

8 spent -- have spent almost three years going through thousands and

9 thousands and thousands of documents to become familiar with this case.

10 And bringing in a new support staff that knows nothing and hasn't read any

11 of the documents in this case, to expect them to function in a way that

12 actually supports my activities here in the courtroom earlier than, you

13 know, maybe 30 or 60 days is a little much to expect. And as much as I

14 would regret it, I may find myself in a position where I do have to

15 request an adjournment. The matter is complicated by -- and I'll be just

16 very frank with Your Honours. It's complicated in this way:

17 I was told in advance that there was going to be a suspension of

18 Ms. Maglov, but that the Registry would have no objection to her

19 continuing as a legal assistant to provide support.

20 JUDGE AGIUS: That, I am not aware of.

21 MR. ACKERMAN: The day -- the day that the order was issued she

22 was bodily removed from this building and had her badge taken from her and

23 treated in a horrible way, an unforgivable way, the way she was treated, a

24 professional lawyer to be treated that way in this Tribunal I think is

25 unforgivable. And I'm very upset about it.

Page 4665

1 JUDGE AGIUS: That, again, I'm unaware of.

2 MR. ACKERMAN: But she was told in that process when she -- she

3 said, "I understand that I'm legal assistant. Why are you doing this to

4 me?" They said, "You can't do anything. You can't be legal assistant.

5 You can't do anything. You must leave this building immediately." And it

6 was a -- it was a very ugly display and something that -- that I think

7 will have continuing effects that might really cause the problem that

8 you're worried about, Your Honour. And I regret that. And that shouldn't

9 have happened that way, but it has.

10 JUDGE AGIUS: Okay. Thank you, Mr. Ackerman. But the message is

11 I will come back to you on this perhaps repeatedly.

12 So I think we can now bring the witness. And again -- yes.

13 MS. KORNER: If Your Honour would be kind enough to explain.

14 JUDGE AGIUS: I will. I will.

15 MS. KORNER: Thank you very much.

16 JUDGE AGIUS: Yes, we will. This is what, in fact, I was going to

17 tell you, to go into closed session, please.

18 [Closed session]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

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Page 4666

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20 [Open session]

21 JUDGE AGIUS: I don't know what to tell you, Ms. Korner, to be

22 frank. I don't know. Because the major problem is going to be that it --

23 when we finish our work on Monday, hopefully we'll be finishing his

24 testimony. And that would create a problem, because then I could have

25 tried not exactly pressurise but bring some pressure to bear on the

Page 4713

1 Defence to make an effort. But if we finish at 6.30 and they finish at

2 7.00, in particular --

3 MS. KORNER: Your Honour, it's quite clear that -- I understand

4 that there's a reason why it should be Judge Schomburg and Judge Schomburg

5 alone. I'm just wondering whether Your Honours don't have power. But I

6 imagine not. I think it has to be the President who has to order the

7 release of a closed session. And I think the rule says only if the

8 Chamber can't be constituted.

9 JUDGE AGIUS: Yes. But if the Chamber cannot be constituted

10 during a normal day of work, presumably, not ...

11 MS. KORNER: Your Honour --

12 JUDGE AGIUS: And I --

13 MS. KORNER: Your Honour, I think I'm resigned to the fact that

14 the position will have to be relooked at in one form or another. If we

15 can't disclose the transcripts -- although I would have thought that if

16 Judge Schomburg could be contacted -- I understand that he may be -- and

17 make an oral order, which could be --

18 JUDGE AGIUS: Yes, definitely, that can be done. That is quite

19 possible. But it would still not solve -- it would solve only partially

20 the problem.

21 MS. KORNER: Oh, I agree. I agree. It would only solve

22 partially. So I suppose in one sense, we can apply for the order on

23 Monday morning.

24 JUDGE AGIUS: No. I'm pretty sure that Judge Schomburg can be

25 reached on his mobile.

Page 4714

1 MS. KORNER: The message I got is that he wasn't reachable. That

2 there was no answer.

3 JUDGE AGIUS: There's no answer. He's probably driving.

4 MS. KORNER: Flying apparently. So that may be why there's no

5 answer.

6 All right. Your Honour, this has been one of those weeks which

7 I'd rather forget about. But I don't think there's anything else we

8 can --

9 JUDGE AGIUS: No. If we could be of any help, Ms. Korner, let us

10 know.

11 MS. KORNER: Thank you very much.

12 JUDGE AGIUS: We will all be in The Hague, I suppose, between now

13 and Monday.

14 MS. KORNER: Well, I don't know -- if I -- if we can get hold

15 of -- it's now half past 5.00, so I think the place will be closing down

16 quite soon for the weekend, unfortunately.

17 JUDGE AGIUS: Yes.

18 MS. KORNER: Obviously we'll have to make separate arrangements.

19 Thank you Your Honours, anyhow.

20 JUDGE AGIUS: Okay. Thank you, Ms. Korner.

21 So that brings us to an end. Again, this very ha very difficult

22 and tiring week for everyone.

23 Monday at 2.15. Thank you. And have a nice

24 weekend.

25 --- Whereupon the hearing adjourned

Page 4715

1 at 5.28 p.m., to be reconvened on Monday,

2 the 22nd day of April, 2002, at 2.15 p.m.

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