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
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?
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
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
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
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
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
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.
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
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
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.
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
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
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
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 --
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
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.
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
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.
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-
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
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 --
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
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
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
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
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.
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
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
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
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
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
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.
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.
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
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
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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.
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.
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]
12 Pages 4666-4711 – redacted – closed session
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
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.
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
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
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
25 --- Whereupon the hearing adjourned
1 at 5.28 p.m., to be reconvened on Monday,
2 the 22nd day of April, 2002, at 2.15 p.m.