1 Wednesday, 10 July 2002
2 [Pre-Hearing on Contempt]
3 [Open session]
4 --- Upon commencing at 2.29 p.m.
5 [The accused entered court]
6 JUDGE AGIUS: Madam Registrar, please call the case, if it's a
7 case. It's not a case -- in fact, it's not going to be called as a case.
8 Please proceed.
9 THE REGISTRAR: Good afternoon. Proceedings in the matter
10 regarding the report by Mr. Ukropina dated 14th June 2002.
11 JUDGE AGIUS: I thank you.
12 Mr. Brdjanin, this is today more of a formality than anything
13 else, but I want to make sure that you are able to follow these
14 proceedings in a language that you can understand. And so far could you
15 hear me in a language that you could understand?
16 THE ACCUSED: [Interpretation] Yes, Your Honour. I can hear you
17 and understand you.
18 JUDGE AGIUS: I thank you, and you may sit down.
19 Appearances for Ms. Maglov.
20 MR. SHELLOW: James Shellow, Milwaukee Wisconsin. With me at
21 counsel table is Ms. Maglov and Ms. Jetovic, who with leave of the court
22 will act as an interpreter should it be necessary for me to confer with my
24 JUDGE AGIUS: I thank you, sir. And welcome to this Tribunal and
25 good afternoon to you.
1 I understand also that there is the amicus curiae.
2 MR. UKROPINA: Your Honours, Dejan Ukropina, attorney amicus
3 curiae on the basis of the registrar's decision dated the 26th of April
5 JUDGE AGIUS: Okay. I thank you, and I see there is a
6 representation from the OTP.
7 MS. KORNER: Your Honour, in a hearing which is not a case.
8 JUDGE AGIUS: Yes, exactly.
9 MS. KORNER: We're here at Your Honours' invitation, or rather,
10 acquiescence in the fact that we can be here to at least listen to the
11 proceedings. Joanna Korner, together with Ann Sutherland, and no case
12 manager today.
13 JUDGE AGIUS: I thank you, Ms. Korner. And that means we can
15 And we'll start with a very short introduction from the Bench to
16 address more or less the parameters of today's hearing. The hearing has
17 been convened primarily because there was an ad hoc request from
18 Ms. Maglov herself for such a hearing, and the request being presented to
19 us by Mr. Ackerman in one of the sittings dating back about a fortnight
20 ago or three weeks ago, a request which the Trial Chamber has absolutely
21 no hesitation at all in acceding to, because we feel, as we actually
22 expressed ourselves already on more than one occasion, that this is a
23 matter of a right which Ms. Maglov has once that a report has been
24 filed -- has been filed.
25 It also means that what is expected from you, Mr. Shellow, in
1 particular is to address whatever you think needs to be addressed but
2 arising from the report of Mr. Ukropina. And I need to make it clear that
3 we do not have contempt proceedings here that we are dealing with and that
4 we will not be dealing with matters which could be related intimately to
5 contempt proceedings if there will ever be contempt proceedings but only
6 with regard to matters arising from this report which would help us reach
7 an appropriate decision. In other words, these were two. We could have
8 given Ms. Maglov an opportunity to file written arguments arising from the
9 report or give a hearing. And since there was a specific request or a
10 preference shown for a hearing, we decided to give a hearing. It doesn't
11 mean to say that we will expose everyone here to -- to go beyond what is
12 strictly pertinent to the report and invade territories which could or
13 could not arise in the future.
14 As far as the other reason/purpose for this hearing today, is to
15 give the opportunity also to Ms. Maglov and her attorney to put questions
16 to Mr. Ukropina arising out of the report that he has filed and also
17 providing us, the three Judges up here, with the opportunity of putting
18 questions to Mr. Ukropina which might help, perhaps clarify certain points
19 that one or more of us needs to be clarified.
20 It's needless to say that we made it also clear that this was a
21 hearing which could be of interest both to the accused Brdjanin and to the
22 Prosecution -- or to the Office of the Prosecutor. The reason being is
23 that we opted for the appointment of an amicus curiae rather than the
24 prosecutor to investigate the matter. So that goes without saying that
25 there may or may not be an interest for the Office of the Prosecutor to go
1 into the matter of this report. We will not insist on either the
2 defendant or the Prosecution to involve themselves in today's hearing.
3 But if they wish to do so, they are at liberty to do so.
4 With that, I think I will give you the floor, Mr. Shellow.
5 MR. SHELLOW: Thank you, Your Honour. It is an honour and a
6 privilege to appear before this Tribunal in these historic proceedings.
7 As I indicated, I am a practicing attorney. I have devoted full time to
8 the practice of criminal defence law throughout the United States for some
9 41 years. My office is in Milwaukee, Wisconsin. The submission I make
10 today will be based exclusively upon the report prepared by the amicus
11 curiae and certain representations made in open court by the prosecutor
12 which are relevant to an understanding of the report by the amicus. In
13 one instance in which statements taken by the amicus or a statement taken
14 by the amicus contains an answer or an assertion that is contradicted by
15 another statement of another witness taken by the amicus, I will assume
16 for the purpose of this submission the correctness of the version which
17 favours the Prosecution.
18 The facts, I believe, as developed from the amicus and his report
19 and as I say, by representation on one occasion by the Prosecution, are
20 relatively straight forward and largely uncontroverted. In September and
21 December in 2001, Ms. Maglov, accompanied by an attorney, Mr. Peric,
22 interviewed a witness in Kotor Varos. They interviewed the witness in
23 September, and at that time the witness was asked whether or not he would
24 give a statement or testify for the defendant, and the witness said he
25 would not.
5 MS. KORNER: Your Honour, I'm very sorry to interrupt my learned
6 friend. But --
7 THE INTERPRETER: Microphone, Ms. Korner. Microphone, please,
8 Ms. Korner.
9 MS. KORNER: Sorry.
10 JUDGE AGIUS: Microphone.
11 MS. KORNER: Although he's being careful not to mention the name
12 of the witness, the circumstances he's already outlining may disclose the
13 identity of the witness. This is in open session at, I understand, the
14 request of Mr. Shellow. If he's going to give --
15 JUDGE AGIUS: It is an open witness -- an open session.
16 MS. KORNER: Yes.
17 JUDGE AGIUS: Because no request has been forthcoming to have it
18 in private session.
19 MS. KORNER: No. Because I didn't -- it's my fault, Your Honour.
20 Had I known that Mr. Shellow was going to go into this, I would have asked
21 for --
22 JUDGE AGIUS: I think we can keep it open session and I can invite
23 Mr. Shellow to avoid mentioning names. We know who the three persons
24 involved are, as your client and two other persons, one of -- one of whom
25 appears only on the scene in December. So you could restrict yourself to
1 indicating -- to referring them -- to them by Mr. 1 -- Mr. X and Mr. Y,
2 Mr. Y being the last person you mentioned and who came to the scene --
3 appeared on the scene in December.
4 MR. SHELLOW: Very well.
5 JUDGE AGIUS: So that way we will --
6 MS. KORNER: All right. And Your Honour, can I ask for the
7 transcript to be redacted, please.
8 JUDGE AGIUS: Yes.
9 MS. KORNER: At line 20.
10 MR. SHELLOW: No objection.
11 MS. KORNER: And 22 -- 20 to 22 inclusive.
12 JUDGE AGIUS: Madam Registrar, please take care that the redaction
13 is put in place.
14 I thank you, Ms. Korner.
15 MS. KORNER: It's actually Ms. Sutherland as usual who Your
16 Honours should thank. She reminded me of this.
17 JUDGE AGIUS: Okay. I thank you both.
18 MR. SHELLOW: As do I, Your Honour.
19 JUDGE AGIUS: Mr. Shellow, you may proceed. Thank you.
20 MR. SHELLOW: The -- Ms. Maglov and Mr. X then accompanied Mr. Y
21 to the office of the witness. Prior to that and in September it should be
22 noted that when Ms. Maglov and her fellow attorney arrived in Kotor Varos,
23 they presented their identification to the chief of the municipality.
24 JUDGE AGIUS: You don't need to mention him.
25 MR. SHELLOW: No.
1 JUDGE AGIUS: He is mentioned in the report. We know who he is.
2 MR. SHELLOW: And they identified themselves as being members of
3 the Defence team representing Mr. Brdjanin. It was he through his
4 secretary that escorted Ms. Maglov and her colleague to the office of the
5 witness. It was he who suggested that that witness and another might be
6 helpful to the inquiry that Ms. Maglov and her colleague were making.
7 Now, as I say, in September Ms. Maglov and her colleague
8 questioned the witness about the events that took place in Kotor Varos in
9 1992 and before and later. And during this time and prior to questioning
10 about these events they identified themselves to the witness and
11 identified that they were on the Defence team of Mr. Brdjanin. At some
12 point they asked the witness whether or not the witness would be will be
13 to give a statement or to testify on behalf of Mr. Brdjanin, and the
14 witness declined.
15 Thereafter, as I say, in December -- in December, Ms. Maglov and
16 her colleague were again in Kotor Varos, and at that time Mr. Z expressed
17 an interest in speaking with the witness, and the three of them proceeded
18 to the witness's office. On that occasion there is nothing in the record
19 to show whether Ms. Maglov and her colleague reintroduced themselves to
20 the witness, but it seems it would be unlikely since they had done so
21 three months before. They asked no substantive questions of the witness.
22 The witness and Mr. Z recounted their experiences since they had last met,
23 and at one point, according to Mr. Z, Ms. Maglov again asked the witness,
24 inquired of the witness, whether the witness would be willing to give a
25 statement or testify on behalf of Mr. Brdjanin, and the witness said no.
1 That's the substance of the facts in the case. It is -- it is
2 clear from the statement of the witness and from the statement of Mr. Z
3 that the witness was uncomfortable, that the witness felt insecure, that
4 the witness felt some anxiety, that the witness -- the witness may have
5 felt -- we don't know. We don't know what occasioned this. It may have
6 been the question by Ms. Maglov. It may have been the circumstances. It
7 may have been the presence of Mr. Z. It may have been the concern of the
8 witness that the statement he had previously given to the Prosecution,
9 that is, at some point -- it may have been that that statement wasn't
10 correct and he was concerned about it and concerned about being
11 cross-examined over it. We just don't know. We do know it is
12 uncontroverted that in September neither Ms. Maglov nor her colleague had
13 any knowledge that the witness was on the Prosecution's witness list.
14 Between September and December they read the statement of the witness,
15 knew that the witness was on the Prosecutor's list, and knew he was on the
16 list when it's asserted that Ms. Maglov asked him the second time whether
17 he'd be willing to also give a statement for the Defence.
18 As I read the report of the amicus, the amicus assumes that the
19 witness had a protected status. According to the representations made in
20 court by the Prosecution on two days, the witness did not have a protected
21 status, the witness at some point had asked to have a protected status,
22 and the Prosecutor represented to the Court that no witness from that
23 municipality had been given protected status, and that was as of April
24 2002. The Prosecutor further represented that it was the practice of the
25 office not to grant or not to seek protected status for a witness until
1 they could do so for every witness from the municipality, and that hadn't
2 been done for the municipality in which this witness would have been
4 Now, from these facts the amicus concludes that Ms. Maglov may
5 have done something improper. He suggests that if the witness -- if
6 Ms. Maglov knew of the protected status of the witness, that asking the
7 question a second time might be considered some form of pressure or
8 intimidation. Well, first of all, the witness did not have a protected
9 status, so there's no way in the world that Ms. Maglov could have known
10 that he did. Second of all, there is nothing improper about asking a
11 witness the same question more than once, particularly if you believe
12 circumstances have changed since the question was first asked. That is,
13 in September Ms. Maglov and her colleague did not know that the witness
14 had agreed to give a statement for the Prosecution. After learning that,
15 I think it was perfectly reasonable to ask a second time, "Are you willing
16 to give a statement to the Defence also?" The witness's attitude towards
17 giving statements may well have changed in the intervening three months or
18 Ms. Maglov may have believed that they might have changed.
19 In any event, the amicus has also suggested in his report that
20 attorneys under the Code of Professional Conduct for Defence lawyers and
21 under Rule 77 of this Tribunal are responsible not only for what they know
22 but for what they should have known. And I will address that later in
23 this submission. But at this juncture and in this introduction I would
24 merely state that I do not believe that position is tenable, nor is it
25 supported by such case law as I have found since I agreed to this
2 I agreed to represent Ms. Maglov pro bono because the issues that
3 are raised by the amicus are important not only to Ms. Maglov but to the
4 entire Defence bar of this Tribunal, and in particular the interpretation
5 of the amicus that a lawyer may be in contempt for what he should have
6 known but did not know is a position that would have perhaps tragic
7 consequences in the representation of persons who are accused before this
8 Tribunal, for it would make lawyers, even the most experienced ones, wary
9 in conducting interviews with potential witnesses. It would put them on
10 notice that they will be responsible for whatever some tribunal or
11 prosecutor concludes they should have known but did not know. And as I
12 say, I will address that later and the authorities in support of it.
13 The question of the vigour, imagination, creativity, and
14 tenaciousness of Defence counsel was addressed by Judge Hunt in pre-trial
15 rulings in this cause. And with all deference to the amicus, Your Honour,
16 I believe that if the amicus had placed the conduct of Ms. Maglov in the
17 context of Judge Hunt's rulings, the report would have been quite
19 Finally - finally -
20 JUDGE AGIUS: Could I ask you to be more specific in this context,
21 Mr. Shellow, please.
22 MR. SHELLOW: Certainly.
23 JUDGE AGIUS: Which decisions by Judge Hunt --
24 MR. SHELLOW: Yes.
25 JUDGE AGIUS: -- you are referring to in particular?
1 MR. SHELLOW: Yes. May I have a moment, Your Honour.
2 JUDGE AGIUS: Thank you.
3 MS. KORNER: Your Honour, while Mr. Shellow is looking for the
4 judgement, can I just say this -- and so that Your Honours can make a
5 decision. Your Honour, what Mr. Shellow is actually doing is going into
6 the facts of this -- this matter. He has made various assertions which on
7 the face of it are not right, and there are factual -- Your Honour, I
8 know, but this is my -- my concern. This is really a matter for Your
9 Honours having decided on the basis of the report by Mr. Ukropina whether
10 this is a matter to refer or not. But I can see this developing into a
11 discussion, at the very least, on the facts as revealed by this report.
12 And that's the real problem, I raise before Your Honour. And I'm simply
13 mentioning it now so that Your Honour has this in mind.
14 JUDGE AGIUS: Yes. Okay. We take note of it. But let's proceed
15 for the time being, Ms. Korner. Thank you.
16 MR. SHELLOW: In response to the Court's question, Your Honour.
17 JUDGE AGIUS: Yes.
18 MR. SHELLOW: It is the decision of July 3, 2000. And I would
19 invite the attention of the Tribunal in particular to pages 14 and 15 of
20 that decision.
21 Now, the last point I wish to make in this introduction is that in
22 reviewing the Rule 77 of this Tribunal, the rule that addresses contempt,
23 and in reviewing the Code of Professional Conduct for Defence lawyers, and
24 in particular the provisions identified by the amicus as potentially
25 violated, which are 5(A) and (D) as I recall, the admonitions of the code
1 and its provisions are so vague and uncertain that to apply them to
2 whether or not a violation can be constructed from one who asks a question
3 on two occasions of a witness renders those provisions of the code and the
4 rule insofar as it would adopt those provisions of the code void for
5 vagueness. That is, no reasonable person would be on notice in reading
6 those provisions, that it would cover the conduct in which it is alleged
7 Ms. Maglov engaged. That is, if this Court were to construe Rule 77 as it
8 incorporates the Code of Professional Conduct for Defence lawyers to apply
9 to the conduct in which it is alleged Ms. Maglov engaged, then those
10 provisions as applied in the judgement of counsel and upon the cases
11 counsel will invite to the attention of the Tribunal void for vagueness.
12 Now, as the Tribunal is aware, contempt is an awesome power. It
13 is a power common law courts have held for hundreds and hundreds of
14 years. In the context --
15 JUDGE AGIUS: This is a lecture that I made this morning, which
16 I -- we discussed at length, especially considering that the -- my two
17 colleagues come from jurisdictions where the concept of contempt is not
18 exactly completely alien but more or less alien. In my jurisdiction, it's
19 not alien at all. We resort to it. I have resorted to it on several
20 occasions. In the past 20 years we have been more hesitant because of the
21 impact of the jurisprudence of the European Court of Human Rights, and the
22 concern that there is that contempt issues are better looked upon now
23 and addressed in the lights of certain modern developments. But anyway,
24 go ahead, Mr. Shellow. But we don't need a lecture on that.
25 MR. SHELLOW: No.
1 JUDGE AGIUS: Please try to avoid giving us a lecture on -- on how
2 awesome -- how desirable or undesirable the institute of contempt is.
3 MR. SHELLOW: I recall the Court's inviting attention of counsel
4 to the treatise by Alfred -- Lord Denning.
5 JUDGE AGIUS: Exact.
6 MR. SHELLOW: And it would be bringing, as they say, coals to
7 Newcastle, for me to engage in some sort of professorial discussion
8 concerning the significance of contempt. It seems to me though that in
9 the context of a contempt proceeding against a lawyer involved in the
10 defence of a criminal case, unlike a contempt proceeding brought against a
11 lawyer who publicly maligns a judge or who makes a public statement to the
12 newspaper in violation of some court order, the impact of contempt, even
13 the proceeding in contempt, will chill not only that lawyer's
14 representation and make it less effective, but it will send a message to
15 all defence lawyers that they must be cautious, that they should be
16 prudent rather than vigorous, that they should be fearful rather than
17 courageous. And so the threat of contempt impacts not only upon the
18 lawyer who is the alleged contemner but upon the client whose
19 representation will be and may be impaired.
20 So I invited the attention in the introduction to the
21 representation by the Prosecutor that the witness did not have a protected
22 status as of April 2002. And in particular, I would now invite the
23 Court's attention to the transcript of 8 April 2002, at page 3826, in
24 which the Prosecutor stated he asked for full protection. And then on the
25 following day at transcript pages 3924 through 3926 the Prosecutor stated
1 that an application for protected status had not been made for the witness
2 nor for any witness in the municipality.
3 The statement of Judge Hunt to which I referred at pages 14 and 15
4 of the 3 July 2000 was as follows: "The Appeals Chamber has placed a firm
5 obligation upon those representing an accused person to make proper
6 inquiries as to what evidence is available in that person's defence. Some
7 of the Prosecution witnesses are likely to be of such importance that it
8 will be necessary for at least the final stage of the investigation into
9 those witnesses to be done by counsel who is appearing -- who is to appear
10 for the accused at trial. That is obvious to anyone with experience of
11 criminal trials." And that says not that lawyers have the power to
12 interview witnesses but that they have the obligation to interview them
13 and they have an obligation to interview Prosecution witnesses, whether
14 they are on the Prosecutor's list of witnesses or not, and indeed whether
15 they are protected witnesses or not.
16 Now, as far as the witness is concerned, the witness had no
17 recollection of being interviewed on any occasion except the occasion when
18 Ms. Maglov, her colleague, and Mr. Z were present. That would make it the
19 December interview. And I believe if the Court reviews the statement of
20 the witness, in the light of the uncontroverted facts set forth in the
21 statements of Ms. Maglov and her colleague, the Court will reach the
22 conclusion that what the witness has done is to have taken the questions
23 asked of him in September and placed them as though they were asked in
24 December; that is, that he has collapsed the two contacts that he had with
25 Ms. Maglov into one. But that is something that this Chamber is as
1 capable of assessing as counsel is.
2 Ms. Maglov's colleague gave the statement to the amicus.
3 Referring to the September meeting, "He, the witness, showed up." I'm
4 reading from page 8633, page 8631, and 8632. "He, the witness, showed
5 up. We shook hands and introduced ourselves as attorneys from
6 Mr. Brdjanin's Defence team. Then he told us almost at the end of the
7 conversation that he was contacted by someone from the Tribunal and he
8 gave the statement. Also he would not like to testify. Until that
9 moment we were not aware he was in contact with representatives of the
10 Prosecution, and the statement was not given to us before. We have
11 exchanged cards and left."
12 He continues: "I think his statement was given to us between
13 those two meetings." That would be the meetings in September and
14 December. "That he is a witness. I was aware during the first meeting
15 when he told us he had contacts with someone from the Tribunal. I
16 understood that he had talked to investigators. But we were not given his
17 statement from the Prosecution and not aware he is a witness, nor that the
18 Prosecution is planning to include him as a witness."
19 I believe when this Tribunal reads the statements of Ms. Maglov,
20 her colleague who accompanied her both in September and December, and
21 Mr. Z that these statements are largely consistent. Each remembers
22 obviously some things that the others didn't. And I believe that in
23 reading these three statements, the Court will reach an understanding of
24 what transpired on those two occasions and would conclude, as counsel did,
25 that Ms. Maglov and her colleague did absolutely nothing wrong. They
1 acted in the highest traditions of the Defence bar. They certainly did
2 not intimidate, threaten, coerce, bribe, or attempt to influence anyone's
3 testimony. At the September meeting the amicus reports that the witness
4 stated that they asked him wasn't it -- they asked him a question about
5 who had responsibility for the events or some of the events in Kotor Varos
6 and was it perhaps a divided responsibility. And he said no. Or at least
7 as I read his statement, he's saying no. And yet, that's precisely
8 the question every member of this Tribunal would ask: Or a defendant is
9 charged not with committing acts but with soliciting others; or commanding
10 others; or conspiring with others; or aiding and abetting others to commit
11 acts. And so I turn to the charges, and charges in only a very loose
13 The Prosecutor put forth essentially suggestions for inquiry.
14 Upon those suggestions for inquiry the registrar raised the following
15 issues -- but before I go to the registrar's issues, perhaps I ought to
16 briefly dwell on the Prosecutor's inquiries that prompted the Registrar's
17 issues. And these -- these appear in the report of the amicus, of course:
18 How the Defence team learned the whereabouts of the witness. Obviously
19 the Prosecutor was concerned. If the witness was someone who himself was
20 concerned, the Prosecutor was concerned how did they find him. Well, we
21 now know how they found him. They didn't find him by rifling the
22 Prosecution's files or tapping the Prosecutor's phone, or finding an
23 informant in the Prosecutor's office. No, they found him in
24 exactly the same way any defence lawyer would have found a witness. They
25 went to somebody whom they felt might know witnesses in the area who could
1 help and they asked him, "Who do you know?" And he gave the name of two
2 witnesses, one of them being the witness under consideration.
3 Second of all, the question is whether Ms. Maglov and her
4 colleague identified themselves as members of Mr. Brdjanin's Defence
5 team. They say they did in the September meeting. The discussion of the
6 December meeting is silent on that, but it would seem to be a -- a
7 pointless introduction were they to reintroduce themselves every time they
8 encounter a witness.
9 Further, as a sort of aside to that whole question of did they
10 introduce themselves or didn't they, the Code of Professional Conduct for
11 Defence lawyers is silent on this issue; that is, it does not address
12 whether witnesses should be told who their interviewer is and what his
13 role is. It probably is a good practice to do so. It certainly is a good
14 judgement to do so. It's the decent thing to do. But I don't think you
15 have to do it twice. And the code doesn't require that you do it even
17 The third thing that the Prosecutor raised, the third question,
18 whether Ms. Maglov influenced or attempted to influence the witness not to
19 testify about matters which he knew. There's nothing, of course, in the
20 report of the amicus or the statement of the witness that that ever
21 occurred. The witness was asked whether there was a divided
22 responsibility, as I indicated, and the witness was never said -- the
23 witness was never told, "Look, if there wasn't a divided responsibility, I
24 want you to testify that there was." He was never encouraged to commit
25 perjury. He was never threatened. He was never coerced.
1 Then based upon these inquiries by the Prosecution, the Registry
2 and its Registrar asked the following -- that the following questions be
3 addressed by the amicus: The reason behind Ms. Maglov's visit to the
4 witness. Well, the reason behind her visit to the witness is the reason
5 behind anyone's visit to a witness. You go to a witness to find out what
6 the witness knows and whether the witness can help you.
7 Secondly, whether the -- at the commencement of the visit,
8 Ms. Maglov identified herself and her role. It's uncontroverted that they
9 did so when they first interviewed the witness in September. And as I
10 say, perhaps it would have been gracious to do it a second time. Perhaps
11 it would have been good manners to do it a second time. It would be the
12 patrician thing to do. But it's hardly mandated by the code, the rule,
13 or the code of professional responsibility for lawyers.
14 The third issue raised by the Registrar was whether Ms. Maglov or
15 anyone accompanying her committed any act in violation of Rule 77. And
16 I've already addressed that there was no violation of this rule, nothing
17 in the question that was asked of the witness on the two occasions when it
18 was asked intimidated the witness. It was a perfectly neutral question
19 asked in a neutral way. It didn't suggest that bad things would happen
20 to the witness if the witness testified for the Prosecution or refused to
21 testify for the Defence. It just simply asked: Would you be willing to
22 do it? And the witness reiterated his answer that he gave in September,
23 in which he said no.
24 Defence lawyers have a right to ask the question. They have a
25 right to ask it once. They have a right to ask it twice. They have a
1 right to ask it as many times as they feel is necessary in the case where
2 there is a witness where the circumstances may have changed.
3 And lastly, whether any other aspect of Ms. Maglov's contact with
4 the witness is relevant to her appointment considering the directive on
5 assignment. And the amicus concludes there was no such relevance.
6 I suggest to the Court -- excuse me, to the Tribunal, most
7 respectfully, that while this is a preliminary proceeding to give the
8 Court the opportunity to hear Ms. Maglov by counsel give his views of what
9 the amicus report shows that it also would be appropriate for this
10 Tribunal to make at the conclusion - at the conclusion of these
11 preliminary proceedings - to make findings of fact and conclusions law.
12 And I would ask the Tribunal to consider the following as findings of fact
13 supported by the report of the amicus and by the transcript pages to which
14 I referred the representations of the Prosecution:
15 1: The reason Ms. Maglov and her colleague went to Kotor Varos
16 in September 2001 was primarily to talk with a man who's been identified
17 as the chief of the municipality and to seek his help in locating persons
18 who had been on the Crisis Staff.
19 Prior to speaking with the chief -- the President of the
20 Municipality, the chief of the municipality, neither Ms. Maglov nor her
21 colleague had any knowledge of the existence of the witness.
22 3: Ms. Maglov and her colleague identified themselves to the
23 President of the Municipality as members of the Brdjanin Defence team.
24 4: The President of the Municipality suggested that Ms. Maglov
25 and her colleague might wish to speak to two witnesses and who might be
1 able to provide evidence.
2 One of the persons identified by the chief of the municipality was
3 the witness.
6 7: After discussing unrelated social matters with the witness
7 and placing him at his ease, Ms. Maglov and Mr. Peric identified
8 themselves as members of the Brdjanin Defence team.
9 8: At the time of their September conversation with the witness,
10 neither Ms. Maglov nor her colleague had knowledge that the witness was
11 listed as a Prosecution witness.
12 9: During their September conversation with the witness,
13 Ms. Maglov and her colleague learned that the witness had been interviewed
14 by someone from the Tribunal.
15 10: Ms. Maglov and her colleague assumed in September that the
16 witness was not listed as a Prosecution witness because they had not read
17 and did not believe that they had received the witness statement.
18 11: Prior to the September interview, Ms. Maglov and her
19 colleague had not seen a statement of the witness and on that basis
20 assumed that the witness had been interviewed by an investigator and was
21 not on the Prosecutor's list of witnesses; that is, in the September
22 interview. Excuse me.
23 JUDGE AGIUS: Mr. Shellow, may I ask you to slow down, please.
24 MR. SHELLOW: I'm sorry.
25 JUDGE AGIUS: Thank you.
1 MR. SHELLOW: 12: -- Incidentally, Your Honour, in that
2 context, with leave of the Court, I would be pleased to file with your
3 clerk the outline -- or with your reporter the outline from which I am
4 reading and which will have the citation to some of the cases to which I
5 would invite --
6 JUDGE AGIUS: That would certainly be most helpful, Mr Shellow.
7 Thank you.
8 MR. SHELLOW: Thank you. And I do have leave of the Court -- of
9 the Tribunal to do this. And I apologise for referring to the Tribunal as
10 a Court --
11 JUDGE AGIUS: Please make sure that when you do so, there is a
12 copy made available to -- not just for the Tribunal but also for the
13 Prosecution, please.
14 MR. SHELLOW: Of course, Your Honour.
15 May I repeat 11. In the September interview, Ms. Maglov and her
16 colleague had not seen a statement of the witness and when they learned
17 that the witness had been interviewed they assumed it was by an
18 investigator, and that is why the name was not on the Prosecutor's list
19 of witnesses.
20 The witness had no specific recollection of the September meeting
21 and was -- and therefore confused what occurred at that meeting with
22 what occurred at the meeting of December 2001.
23 In September, when the witness was advised of the role of
24 Ms. Maglov and her colleague, the witness stated that he did not wish to
25 give a statement to Defence counsel and would not state that there had
1 been a divided responsibility for the occurrences with which the defendant
2 is charged.
3 Between September and December, Ms. Maglov and Mr. Peric read the
4 statement of the witness and learned that the witness would testify for
5 the Prosecution.
6 15: Ms. Maglov and her colleague had no reason to believe
7 that the witness had a protected status because personal identifying
8 information had not been redacted from the statement -- from his
10 16: The witness did not have the status of a protected witness in
11 September and December 2001.
12 17: During the December contact with Ms. Maglov, her colleague,
13 and Mr. Z, the only question asked of the witness was whether he would
14 testify for -- whether he would testify for the Defence, and the witness
15 reiterated that he would not give a statement to Defence counsel.
16 18: In neither the September nor December conversations with the
17 witness did either Ms. Maglov or her colleague threaten or attempt to
18 intimidate the witness, nor did they in the December conversation attempt
19 to have the witness contradict what the witness had stated to the
21 19: During the December meeting the witness was anxious and
22 fearful that his identity as a Prosecution witness would become known to
23 the community in which he lived and worked.
24 20: During the December conversation, the witness felt that
25 because he was asked a second time to give a statement to Defence
1 attorneys after he declined their first request, he was being pressured.
2 Based upon the law I will discuss, I ask for the following
3 conclusions of law:
4 1: Neither Ms. Maglov nor her colleague attempted to pressure or
5 intimidate a witness to change a statement he had given the Prosecution.
6 2: Neither Ms. Maglov nor Mr. Peric failed to identify themselves
7 in and their role to the witness.
8 3: Neither Ms. Maglov nor Mr. Peric attempted to obstruct the
9 administration of justice by the Tribunal.
10 4: Neither Ms. Maglov nor Mr. Peric violated the provisions of
11 the Code of Conduct for Defence lawyers or the Rules of this Tribunal.
12 5: The subjective feelings of anxiety, fearfulness, insecurity,
13 and pressure by a witness do not evidence intimidation unless they are
14 shown to be the intended result of statements or conducts of counsel.
15 6: It is proper for Defence counsel to interview Prosecution
16 witnesses, including those upon whom has been conferred a protected
18 The amicus opines that at page 8669 -- that if Ms. Maglov were
19 aware of the status of the witness, the reasons behind the visit -- the
20 reason behind this visit could be -- could be understand as intimidation.
21 Well, it is a confusing statement at best. It is difficult to discern
22 what the amicus means by "the status of the witness." Does he mean the
23 protected status of the witness? If that's what he means, he's in error.
24 The witness didn't have a protected status. The witness was not a
25 protected status witness. If he means that the status of the witness was
1 someone on the Prosecutor's witness list, it's absurd. I would ask the
2 Court to listen to it again. If Ms. Maglov was aware of the status of the
3 witness, the reason behind the visits could be understand as intimidation.
4 That is, if they knew he was a Prosecution witness who had already given
5 a statement and then you ask him to give a statement for the Defence, that
6 this constitutes intimidation? If it is, we should all go out of business
7 and write wills for a living.
8 I submit --
9 JUDGE AGIUS: [Microphone not activated] Someone who has a mobile
10 phone on.
11 THE INTERPRETER: Microphone please, Your Honour. Microphone.
12 JUDGE AGIUS: There's someone with a mobile phone on in this
14 MR. SHELLOW: May I check mine, please.
15 One, it is on. But two, it wasn't mine that was ringing. But now
16 it's off.
17 JUDGE AGIUS: If there's anyone else with a cellular phone which
18 is switched on, please switch it off.
19 MR. SHELLOW: The amicus goes on: In the context of this
20 statement, if Ms. Maglov and Mr. Peric were aware or should have been
21 aware of the status of the witness, Article 5(A) and (D) of the Code of
22 Professional Conduct were violated.
23 I read to this Tribunal the provisions of Article 5(A) and (D):
24 "In providing representation to a client, counsel must: A, act with
25 competence, skill, care, honesty, and loyalty."
1 I submit that if that provision is construed to bar an attorney
2 from either questioning someone on a Prosecutor's witness list or bar an
3 attorney from asking the same question twice, that the effective
4 representation of counsel in this -- before this Tribunal will be
5 impaired. And if the code is construed to apply -- to questioning with
6 Prosecution witness and asking the same question twice, then that
7 provision of the code does not place an attorney on notice as to what
8 conduct is prohibited and it's void for vagueness.
9 Secondly, provision D, the other one upon which the amicus
10 relies: "In providing representation to a client, counsel must preserve
11 their own integrity and that of the legal profession as a whole." The
12 integrity of the lawyer defending a client in a serious criminal case
13 requires that he conduct himself vigorously, imaginatively, creatively,
14 tenaciously. And if that representation requires in his judgement that he
15 be asked -- that the witness be asked the same question twice, then so be
16 it. That is the way the integrity of the profession is maintained. It is
17 not maintained by those who represent their client and are meek and
18 fearful and concerned that some overreaching prosecutor will attempt to
19 haul them into a tribunal on contempt charges.
20 As I indicated, there is no requirement in this code, either in
21 the provisions that were read and to which the amicus invited our
22 attention or an other provision, which recites that counsel has an
23 obligation to identify himself before interviewing a witness. As I
24 indicated -- I think it's good manners. I think it reflects well upon
25 us. I think it's the gracious thing to do, as it is the gracious thing to
1 do, to introduce yourself to anyone you encounter and wish to talk to.
2 But the Code of Professional Conduct did not incorporate Amy Vanderbilt's
3 book on etiquette.
4 And now to the law, Your Honours. I apologise to the Tribunal.
5 My experience with international law is not great. I have briefly
6 practiced in Canada and in Mexico, but the majority of my practice - the
7 almost exclusive practice - is within the United States and perhaps for
8 the last couple of decades primarily in the Federal courts in the United
9 States. I might note that if -- if within the general defence of criminal
10 cases there is a specialty, I have probably devoted my time more to the
11 defence of cases where defendants were charged with a vicarious liability
12 for the acts of others. And so I find myself defending conspiracy cases,
13 cases in which persons were charged with having acted in concert under
14 statutes that prohibit that, cases involving aiding and abetting,
16 It is a long time ago, but in 1960 -- 1960 while I was in law
17 school -- 1960 or in 1959 I wrote my first article on conspiracy law and
18 have been following it, I think diligently, ever since.
19 Now, with my apologies for not being able to cite cases from other
20 countries, I invite the attention to the law that I know. It is axiomatic
21 certainly in the United States that a person should not be required to
22 guess at his peril as to the meaning of a statute or code provision which
23 imposes serious penal consequences. For the past 65 years that principle
24 has been expressed in the courts of United States. It was first expressed
25 in 1926 by Mr. Justice Sutherland in Connally versus General Construction
1 Company. The citation is in the outline. But Justice Sutherland wrote:
2 "A penal statute which either forbids or requires the doing of an act in
3 terms so vague that men of common intelligence must necessarily guess at
4 its meaning and differ as to its application is void for vagueness."
5 I cite the Court to other Supreme Court cases that have held the
6 same, but I note that when I looked in the -- when I did a database
7 search, over 400 opinions of Federal Courts have quoted that language
8 since it was first expressed by Mr. Justice Sutherland. And so I ask the
9 Court that if it believes, if it concludes that the provisions of Rule 77
10 and the provisions of the code of conduct encompass the conduct, apply to
11 the conduct in which it is alleged Ms. Maglov was engaged with this
12 witness, that those provisions of the code and that application of the
13 rules give no notice and are void for that reason. For if you read the
14 provisions of the code, in the context of Rule 77, it can hardly be said
15 that an attorney would be on notice, that he could not interview a
16 Prosecution witness, and that he could not ask such a witness the same
17 question twice.
18 The more interesting question, from -- at least certainly from an
19 academic point of view is: How does a Tribunal such as this address the
20 validity of a code? In this context, I wish to invite the Court's
21 attention to the case of in re Frank Oliver, attorney. And the citation
22 is in my outline. There was a trial in Chicago, a trial that created a
23 great deal of publicity and about which there was a great deal of concern
24 called the trial of the Chicago Seven. It was a group of persons who
25 had demonstrated during the democratic convention in Chicago. The trial
1 was heard by Judge Julias Hoffman of the Federal Court in Chicago. For
2 the first time, certainly in that district, metal detectors were placed
3 such that anyone entering the courthouse would be required to go through
4 the metal detector.
5 Mr. Oliver, a senior member of the bar of that court and perhaps
6 its most distinguished member, drafted a letter to the executive board of
7 judges of the Federal District Court, saying in substance as follows:
8 "The undersigned senior members of your bar observe the metal detectors
9 and are concerned. It may be that jurors passing through those metal
10 detectors will believe that the republic is threatened and will convict
11 people whom they otherwise would acquit because of such fear. On the
12 other hand, jurors going through may be so annoyed by the invasion of
13 their privacy that they would acquit persons which on other circumstances
14 they might convict." He said, we do not know and we offer the services of
15 the undersigned to discuss this with the Court, very truly yours, signed
16 by 30 lawyers, including myself.
17 Mr. Oliver sent this letter to the Court. The Court gave it to
18 its clerk. The clerk file-stamped and it put a case number on it.
19 Mr. Oliver gave a statement to the press, which basically is what I just
20 explained to you. This is the petition that was filed and this is why it
21 was filed. The Court convened on its own order to show cause why
22 Mr. Oliver should not be held in contempt for violating that rule of court
23 that says there shall be no comment on pending litigation and the Court
24 defined the letter as pending litigation because it was given a file
25 stamp. I defended Mr. Oliver. He said his conduct was protected by the
1 first amendment and that's all. He said he knew about the code of
2 professional responsibility, he knew about the Illinois rules of ethics,
3 he now about the American Bar Association Code of Professional Conduct,
4 and he knew all these things at the time he made this statement and that
5 his statement was protected. The Prosecutor did not attempt to defend the
6 code. The prosecutor said he has no right to challenge it. The Trial
7 Court held Mr. Oliver in contempt and said it would reprimand him and if
8 he ever did it again, there would be serious consequences.
9 We appealed to the Unites States Court of Appeals for the Seventh
10 Circuit which reversed the conviction for contempt. But in the course of
11 it observed the following in connection with the prosecutor's argument:
12 "There is a fundamental distinction --" this is Chief Jerry Swagart
13 [phoen] writing for the Court -- "There is a fundamental distinction
14 between the functions of a court in its usual adjudicative role in which
15 it is restricted to determining relative rights between parties, clearly
16 subject to its jurisdiction based upon facts then made known to the Court,
17 and the function of a court in an essentially legislative role in which it
18 adopts broad rules perhaps having their greatest effect on parties not
19 before it based on large facts that are largely anticipated. In this
20 latter function, courts should be treated more like legislatures than
21 courts in that their rule-making --"
22 THE INTERPRETER: Could counsel slow down, please.
23 MR. SHELLOW: -- to be subject to the --
24 JUDGE AGIUS: Slow down, please.
25 MR. SHELLOW: I'm sorry. My fault.
1 JUDGE AGIUS: [Microphone not activated] Because the interpreters
2 have to --
3 MR. SHELLOW: Of course.
4 JUDGE AGIUS: [Microphone not activated] And translate it into
5 French and also in the Serbo-Croat language.
6 MR. SHELLOW: I apologise.
7 JUDGE AGIUS: [Microphone not activated] It's no problem. I
8 mean --
9 THE INTERPRETER: Microphone, Your Honour.
10 MR. SHELLOW: Let me go back.
11 "In this latter function, courts should be treated more like
12 legislatures than courts in that their rule-making decisions should be
13 subject to the same sort of challenges permitted for statutes. As one who
14 has violated a statute and is prosecuted for such violation may challenge
15 the validity of the statute, so should one who has violated a rule of
16 court be permitted to challenge the validity of the rule itself."
17 JUDGE AGIUS: Mr. Shellow, may I ask you how much more you
18 anticipate you need -- how much more time you -- because usually we have a
19 break at this time. But if you tell me --
20 MR. SHELLOW: Well, why don't we take a break. That's fine.
21 JUDGE AGIUS: If you tell me that you only have more than a few
22 minutes left --
23 MR. SHELLOW: No. I have more than a few minutes, but less than
24 15. Why don't we take a break at this time, Your Honour. That would be
1 JUDGE AGIUS: If it's less than 15, we can go on, with the
2 indulgence of the interpreters.
3 MS. KORNER: Your Honour, I would like the right to reply to this.
4 JUDGE AGIUS: Yes. Of course. But then we can have a break and
5 you reply after the break. But what I mean to say is rather than stopping
6 Mr. Shellow now, let him finish then we have a break and you reply
8 MS. KORNER: Your Honour. While I am on my feet, there was
9 something else in the transcript which we didn't spot --
10 JUDGE AGIUS: There is a lot wrong in the transcript.
11 MS. KORNER: No, no. Forget all that nonsense about correcting
12 the transcript. But there are two references earlier on in what
13 Mr. Shellow said. In page 6, line 16 to 24 which will identify the
15 JUDGE AGIUS: Oh, I see.
16 MS. KORNER: I just -- I think it's too late now. It would have
17 gone out. If it's been shown on -- on public television, it will have
18 gone out already. But I think we ought to redact the transcript.
19 MR. SHELLOW: I'm not certain how this machine works. So I can't
20 find the -- if my colleague and friend would read to me what the
21 provisions are --
22 MS. KORNER: No. I'm not going to read it out. Because if I read
23 it out, that will do the same thing.
24 JUDGE AGIUS: That will make it worse.
25 MR. SHELLOW: Oh, of course I'm sorry.
1 MS. KORNER: It's page 19, line 17 and 18 to be redacted.
2 JUDGE AGIUS: Okay. Page 19 --
3 MR. SHELLOW: Do we know how to make that thing go?
4 JUDGE AGIUS: Line 17 and 18.
5 MS. KORNER: Line 17 and 18, page 19.
6 JUDGE AGIUS: So page 19 -- yes. Yes and no. It will be safer
7 to -- to follow your -- your recommendation, your suggestion, Ms. --
8 Ms. Korner.
9 MS. KORNER: Your Honour, I'm sorry, I'm just being -- yes, I'm
10 being ultra cautious. But it is possible for somebody to work it out from
12 JUDGE AGIUS: No. I would rather play it safe than be sorry. And
13 I would act on your suggestion, Madam Registrar, please. You should have
14 identified the -- the page and the lines, page 19, line 17 to 18, starting
15 "the secretary," ending with "the witness." Correct? Those will be
17 So Mr. Shellow, please go ahead.
18 THE INTERPRETER: Your Honour, the interpreters would kindly ask
19 for a break.
20 JUDGE AGIUS: No. The interpreters insist on a break now, so we
21 will have a break now. And we will reconvene in 20 minutes' time. Thank
23 --- Recess taken at 3.48 p.m.
24 --- On resuming at 4.11 p.m.
25 JUDGE AGIUS: Yes. Everyone is here. Mr. Shellow, you may
1 proceed. Thank you.
2 MR. SHELLOW: Thank you, Your Honour.
3 Two positions appear in the report of the amicus really and in the
4 colloquy with the Court engaged in by counsel in this cause. The
5 Prosecutor asserted that Defence counsel was furnished with the witness's
6 statement prior to the September interview. Ms. Maglov and her colleague
7 assert that they had not read it prior to the September interview, they
8 did not know of its existence, and they did not know of the existence of
9 the witness nor his identity as a Prosecution witness.
10 Ms. Maglov's colleague in his statement suggests a way of
11 reconciling these -- these contrary positions and suggests that the
12 process by which witness statements are first sent to lead counsel in
13 Houston, then they're reduced to disks or scanned to disks or then the
14 disks are provided to co-counsel in Banja Luka and that in this cumbersome
15 process of data processing Ms. Maglov and her colleague had not started to
16 read that group of material which included the statement of the witness
17 and accordingly didn't know that the witness was on the Prosecution's
18 witness list.
19 The amicus takes the position that contempt could be considered -
20 not that it should be brought, but that it could be considered - based
21 upon the knowledge, based upon what they knew - and they claim they did
22 not know - or what they should have known, even though they didn't have
23 actual knowledge. And from the context, I -- I conclude that what the
24 amicus is referring to is that they either knew or should have known that
25 the witness was on the Prosecution's witness list. Well, there are two
1 answers to that really: The first is it doesn't really make any
2 difference if the witness was on the Prosecutor's list or not. They have
3 a right and an obligation to interview that witness.
4 But looking at it from the perspective of the amicus, who equates
5 known and should have known, I most respectfully assert that the amicus is
6 in error, that there is a difference in the law between what one knows and
7 what one should have known, that contempt under the rules is only for
8 knowing and wilful conduct, and that knowing conduct cannot be construed
9 to be what someone should have known. In that -- in that context, I
10 invite the Court's attention to United States versus Ladish Malting
11 Company. Ladish Malting manufacturers malt that's used by the brewing
12 industry, and they have a major plant and a workman went out on the fire
13 escape to have a cigarette and the fire escape platform was rusted and he
14 fell to -- the platform gave way and he fell to his death. The
15 corporation was charged with a misdemeanour of really knowingly -- knowing
16 an unsafe condition, doing nothing about it, and causing the death of the
17 employee. The case was tried to a jury before a magistrate, and counsel
18 repeatedly urged the magistrate that actual knowledge is required where a
19 statute says "knowing." And the magistrate asserted with equal strength
20 that no, no, the defendant corporation can be convicted if the prosecution
21 proves it should have known of the unsafe condition of that fire escape.
22 This colloquy with the Court concerning the meaning of knowledge
23 went on throughout the trial. Finally the jury considered it and the
24 Court instructed the jury in that case, in this context, having knowledge
25 of the hazardous conditions means that the company knew or should have
1 known of the hazardous condition. The jury convicted. The corporation
2 was fined 450.000 dollars. The United States district judge affirmed the
3 conviction and the case was appeared to the United States Court of
5 I cite in my outline at some length excerpts from the Court of
6 Appeal's opinion. Judge Frank Easterbrook writing for the Court held:
7 "Thus the jury instruction in this case equated a wilfulness with
8 knowledge watered down knowledge to recklessness, defined recklessness
9 as negligence, and used the civil rather than the criminal approach to
10 negligence. Knowledge in the statute means actual knowledge. No case of
11 which we are aware treats what a person should have known as knowledge or
12 wilfulness, unless knowledge, recklessness criminal negligence and civil
13 negligence are to merge into a single and mental state, it is essential to
14 preserve the difference.
15 What the amicus has done is he has taken and converted Rule 77
16 from a wilful and knowing mens rea to the mens rea for simple negligence.
17 And so even under that standard there are no facts in the amicus report
18 even suggesting that they should have known he was a Prosecution witness,
19 and of greater importance, what difference does it make? If he's a
20 Prosecution witness or not a Prosecution witness, if he's someone who
21 knows something and a lawyer doesn't interview him, the lawyer is
22 rendering ineffective representation of counsel. Even had the lawyers
23 known in September that the witness was on the Prosecution's list, it was
24 proper for them to interview the witness. Neither party in criminal
25 litigation has a property interest in a witness. Each party has an
1 obligation to his client to interview all persons who may have knowledge
2 of the events upon which an indictment is based. Even had the attorneys
3 in December asked substantive questions, that is, questions about the
4 facts of 1992 in Kotor Varos, their conduct would not have been improper.
5 Even if they had asked the same substantive questions in December that
6 they asked in September, their conduct would not have been improper. The
7 recollections and attitudes of witnesses change. Witnesses do not always
8 tell the same story twice in the same way. Witnesses who have a few
9 months to think about what they have said may say it differently the
10 second time. An attorney has no assurance that when a person declines to
11 be a witness that that declination is etched into stone. Witnesses change
12 their mind. Witnesses talk with their friends. Witnesses think about
13 things. No attorney should assume that once having gotten a refusal from
14 a witness, that he or she should not try again.
15 I submit most respectfully, Your Honour, that no order to show
16 cause should be issued; that not contempt proceeding should be initiated;
17 that this Court reach conclusions of law that will permit the
18 reinstatement of Ms. Maglov as co-counsel for Mr. Brdjanin. I ask the
19 Court to formulate conclusions of law so that when lawyers are appointed
20 by the Registrar to represent indigent defendants before this Tribunal,
21 these lawyers can look to your opinion in this cause and know that if they
22 engage in honourable and honest but aggressive and tenacious
23 representation, that this Tribunal will protect them. You have the fate
24 of not only lawyers, Your Honour; you have the fate of defendants and
25 their right to vigorous representation in your hands. And that's why I'm
1 before you, because the issues that are raised by the Registrar transcend
2 Ms. Maglov and affect all of us.
3 Thank you very much -- thank you for indulging me. Thank you for
4 letting me appear.
5 JUDGE AGIUS: Thank you, Mr. Shellow.
6 Ms. Korner, do you want to address the Tribunal -- the Chamber?
7 MS. KORNER: I do, Your Honour, please.
8 First of all, Your Honour, I'm perhaps -- it might have been more
9 helpful, but I understand it's not the practice in the United States had
10 the Court, Mr. Ukropina, and ourselves been supplied with a copy of the
12 JUDGE AGIUS: Yeah. You are right, Ms. Korner.
13 MS. KORNER: Or at least a list. But having said that,
14 Your Honour --
15 JUDGE AGIUS: Let me make myself clear straight away that I
16 haven't gone through it obviously because --
17 MS. KORNER: No.
18 JUDGE AGIUS: But if there is case law here that you would like to
19 comment or case law that you would -- other case law that you would like
20 to indicate to the Chamber, you will be given the opportunity to do so in
22 MS. KORNER: Your Honour.
23 JUDGE AGIUS: -- following the usual procedure to inform --
24 MS. KORNER: Yes. Your Honour, that's as I alluded to earlier,
25 it's part of the problem. Your Honour in fact deliberately appointed --
1 or Your Honours -- an amicus so that the Prosecution shouldn't get involved
2 in the decision that Your Honours have to take as to whether or not to
3 institute contempt proceedings or the lesser, which is misconduct, which
4 is referred to the Registrar. But I cannot on behalf of the Prosecution
5 let what has been said pass without saying something about it. I
6 anticipate that Mr. Ukropina himself, given the criticisms that have
7 been levelled, would wish to address Your Honours.
8 Two things: Firstly, it's all very well to, as it were, start
9 in terrorem by explaining how important all of this is for Defence
10 counsel, who should be allowed to pursue vigorously their investigations
11 and the like and who may have to be wary. It's equally important to look
12 at the mandate of this Tribunal to offer protection to the witnesses who
13 are to appear before it in the trials.
14 What Mr. Shellow is unaware of, because he hasn't practiced here
15 before and because he doesn't know, I anticipate, the state of -- the
16 situation in the Republika Srpska. But may I emphasise very strongly that
17 of course Ms. Maglov does, because that's where she comes from -- is the
18 following, that it is known to everyone, however vigorously one pursues
19 the defence of one's client, that there are problems not associated with a
20 national jurisdiction in seeking to interview witnesses who are on a list
21 prepared for the Prosecution as witnesses, or to be called by the
23 The particular witness that we're talking about is in a
24 municipality which is a Serb-controlled municipality.
25 MR. SHELLOW: Excuse me. Excuse me, madam. I believe --
1 JUDGE AGIUS: Yes, Mr. Shellow.
2 MR. SHELLOW: I believe -- I believe this is beyond the record.
3 This is beyond the report. The history of what has happened in that
4 municipality is not a part of this report, as I recall.
5 JUDGE AGIUS: I don't think Ms. Korner is going to address the
6 history of what happened in the municipality. I didn't anticipate that
7 she was heading in that direction.
8 MS. KORNER: Your Honours have been addressed way outside the
9 terms of reference of this report.
10 JUDGE AGIUS: Yes.
11 MS. KORNER: So I'm merely pointing out because it's been
12 addressed -- the address to you has been based -- predicated on the basis
13 that all Your Honours ought to be looking at is the position of Defence
14 counsel. With respect, Your Honours, that's not right, because it's the
15 position of Defence counsel, vis-a-vis a witness in this case.
16 But Your Honour, I can -- all I'm proposing to say about this is
17 that there are special concerns which are known, and that goes directly to
18 what Your Honours have been addressed on, as to whether or not you should
19 refer this matter for proceedings for contempt. There are circumstances
20 known to anyone practicing before this Tribunal, Defence or Prosecution,
21 but particularly someone who comes from the area which affect witnesses,
22 which do not affect them in a national jurisdiction.
23 Now, Your Honour, you have been addressed and invited to draw
24 conclusions based entirely on the report. When it may well be that any
25 conclusions drawn would come as a result of evidence being heard in a
1 contempt proceeding, because it cannot have escaped Your Honours' notice
2 that there are inconsistencies to put it at its lowest in the various
3 accounts given by the people interviewed. That is to say, Ms. Maglov, her
4 fellow lawyer Mr. Peric, the other man whom they saw and who they took in
5 to see the witness, and between Ms. Maglov and Mr. Peric themselves. It's
6 such that Your Honours may feel those inconsistencies can only be resolved
7 by evidence being heard, and no evidence has been heard.
8 Your Honours, can I just -- because you've been invited to draw
9 conclusions from this report, which should mean that there is no referral
10 for proceedings, I have to put the other side to this. Mr. Shellow said
11 he was going to draw all conclusions favourable to the Prosecution well,
12 of course he's done -- I'm not surprised, but he's done no such thing.
13 The first is this: That statement was disclosed to the Defence.
14 According to Mr. Ukropina's report and that's correct, and there's a
15 receipt to that effect, in April 2001, six months before the first visit.
16 Second, Mr. Shellow alleges that there is no reason to disbelieve
17 what Ms. Maglov and Mr. Peric had to say, that they were unaware of that
18 existence. Well, for the moment, although in our submission there's
19 evidence to suggest the contrary -- but for the moment, accepting that at
20 its highest, they didn't know, Your Honours, we would submit that it's
21 incumbent -- I and go back to what I said -- for persons practicing,
22 particularly in this case, before you go to a particular municipality to
23 search for Defence witnesses, to check the names of the witnesses that have
24 been disclosed, so that if approaching the witness -- and for the moment
25 let me say that I'm not asserting that Defence counsel have no right to
1 approach witnesses, even though they know they're Prosecution witnesses,
2 but to treat it with a great deal more care than they would otherwise.
3 But Your Honours, there was one matter that, again, is undisputed,
4 and that's this: The order of Judge Hunt was quoted to you from July of
5 2000. I think Your Honours were provided by -- with a copy. Can I invite
6 Your Honours --
7 JUDGE AGIUS: We have a copy of it, yes.
8 MS. KORNER: Can I invite Your Honours to turn to paragraph 36, at
9 page 14. A part was quoted to you.
10 Your Honour, this dealt with the submission we made that there
11 should be a disclosure 30 days in advance. And Judge Hunt said this,
12 before we get to the part that Mr. Shellow quoted:
13 "These statements are quite unrealistic --" that was to say
14 disclosing the name of the witness 30 days in advance -- "when applied
15 that those witnesses who fall within the category of giving evidence
16 which - and I emphasise this -- directly implicates the accused. There
17 can be no assumption by counsel for the accused that these witnesses will
18 be telling the truth. There are well documented cases whereupon a careful
19 investigation, witnesses called by the Prosecution have turned out not to
20 have been where they say they were or have subsequently retracted their
21 evidence. The Appeals Chamber has placed a firm obligation upon those
22 representing an accused person to make proper inquiries as to what
23 evidence is available in that person's defence. Some of the Prosecution
24 witnesses are likely to be of such importance that it will be necessary
25 for at least the final stage of the investigation into those witnesses to
1 be done by counsel who is -- who is to appear for the accused at trial."
2 So that particular paragraph was predicated on witnesses giving
3 direct evidence. This witness does not.
4 But Your Honour, can I now turn to the actual order that was
5 finally made by Judge Hunt and which the amicus referred to. Your Honour,
6 it's at page 26, paragraph 4:
7 Save as is directly and specifically necessary for the
8 preparation and presentation of this case, the Brdjanin and Talic Defence
9 shall not disclose to the public the names identifying information or
10 whereabouts of any witness or potential witness identified them to by the
11 Prosecutor any evidence or any evidence.
12 Now, Your Honour, in any showing -- and that's accepted by both
13 Ms. Maglov and Mr. Peric apparently -- they disclosed to this gentleman
14 who said he was a friend of the witness that he was in fact a witness to
15 the -- for the Prosecution. So Your Honour, there are aspects to this
16 trip to this particular municipality which Your Honours may feel are
18 In any event, Your Honours will know that it's not just the
19 statement taken from the witness by Mr. -- the amicus but also the earlier
20 statement that was taken which prompted all of this. And as Your Honours
21 know, there is a stark divergence between what Ms. Maglov and Mr. Peric say
22 and the witness --
23 JUDGE AGIUS: May I stop you -- interrupt you for a second,
24 because this is something that I wanted to bring out, especially since
25 the -- the impression that was given in the beginning was that it's just
1 the facts as they have been outlined in the report by the amicus that will
2 be taken into consideration by this Chamber in reaching its decision later
3 on. It's not just those. It's the statement that prompted -- initiated
4 the whole -- the whole matter. Of course, that will be taken into
5 consideration. Plus also the statement that was made by Mr. Ackerman at
6 the time when the issue arose here in -- in Court, plus also the statement
7 that was voluntarily made by Ms. Maglov at the -- at the time. I mean,
8 these are all facts that the Chamber will take into account in the process
9 of elaborating its decision.
10 And I'm saying this, Mr. Shellow, in case you want to address
11 those two -- I call them documents. If you like, transcript of one and
12 the copy of the statement of the other.
13 MS. KORNER: Well, Your Honour, I don't think that I want to take
14 up any more of your time. My intention was not to go through the factual
15 matters in this particular case, I suppose you would call it, because I
16 don't think that's what this hearing should be for. And the only reason
17 I've done it is because that is what, in our submission, Mr. Shellow has
19 Your Honour in our submission should look at the amicus report,
20 hear obviously what Mr. Ukropina has to say in answer to the charges that
21 have been levelled at him by Mr. Shellow, and then make a decision
22 yourselves whether on the facts - all the facts, as Your Honours say - you
23 intend to take a course of action in this case. But Your Honours, I do
24 submit that what Your Honours have heard today goes a great deal further
25 than simply being a submission on the report and on the law. It's
1 inviting Your Honour to draw factual conclusions at this stage, and it's
2 not in our submission the proper stage.
3 JUDGE AGIUS: I thank you, Ms. Korner.
4 Mr. Shellow, would you prefer to hear what the amicus has to
5 say -- has got to say before -- before your final remarks?
6 MR. SHELLOW: I think perhaps -- no. I think perhaps the amicus
7 ought to have the opportunity to hear what I -- what I have to respond --
8 JUDGE AGIUS: To Ms. Korner?
9 MR. SHELLOW: -- to my learned friend.
10 JUDGE AGIUS: Okay. Please try to be as short as possible.
11 MR. SHELLOW: I'll be very short.
12 If the -- if this Chamber in reviewing the statements, proceedings
13 before the Tribunal, the report of the amicus, concludes that there are
14 inconsistencies, nonetheless it has the power, much as a Court would in
15 common law in a motion either for summary judgement or a motion to dismiss
16 on the pleadings, to say, "It makes no difference which version is
17 believed, none whatsoever," that the conclusions of the Court are not
18 dependent upon resolving any inconsistencies.
19 JUDGE AGIUS: That is one possibility, yes, certainly.
20 MR. SHELLOW: Second of all, I don't contest and didn't that the
21 Prosecutor sent this material to whomever she sent it to, Mr. Ackerman or
22 whoever, in April 2001. Should lawyers going to a community search
23 through all of their files and all of their -- all of the materials
24 they've received in discovery and ascertain the names of witnesses in that
25 community who appear on the Prosecution's list? Probably. That would be
1 good lawyering. I don't dispute that. She's not charged with bad
2 lawyering. She's not charged -- she's not charged with anything at this
3 point. But in any event, the assertions aren't that she didn't conduct a
4 pre-trial preparation in the way the Court might do so or the Tribunal
5 might do so or counsel might do so or the way my learned friend would.
6 It's -- it's a question -- it's a question, Your Honours, of whether or
7 not the interviewing of the witness Ms. Maglov conducted herself
9 I think my learned colleague has misconstrued my position
10 vis-a-vis the amicus. I am not levelling charges against the amicus; of
11 course not. I am saying with all deference that his interpretation of the
12 mens rea required for Rule 77 is not consistent with the case law, with
13 the common law, with the experience of the common law courts. I am
14 suggesting that his interpretation is not the interpretation that I want
15 this Court to accept. This does not constitute levelling charges. This
16 constitutes an intellectual disagreement on the concept of a mental
17 state. At least in the United States we do not characterise such
18 intellectual differences as one party levelling charges against the
19 other. They may do so in the jurisdictions in which my friend practices,
20 but lawyers and judges frequently have differences in the jurisdictions in
21 which I practice which do not rise to the level of irritation that
22 levelling charges would suggest.
23 Second of all, I certainly did not assume that the Court would not
24 consider any matters that were -- any matters that were before it in this
25 cause in considering whether it would initiate contempt proceedings. And
1 under the rules, I think the Court can judicially notice the events in the
2 area, the circumstances in the area. Of course. And I expected that it
3 would do so. I just did not expect that I would argue these matters.
4 And lastly, I did not quote Judge Hunt out of context. Yes,
5 Judge Hunt was referring to witnesses who have direct knowledge of the
6 defendant's involvement, but to have direct knowledge of someone who is
7 vicariously charged as a co-conspirator, as a solicitor, as an aider and
8 abettor is very different than having actual knowledge of the activities
9 of a principle. And how do we know as lawyers who has direct knowledge
10 and who does not? First, if we don't have the witness's statement or
11 haven't read it, we go to the witness and ask the witness what the witness
12 knows. He is the source. The witness is the font of our knowledge. If
13 we have the witness's statement from the prosecution and believe, A, that
14 the investigator who took the statement took a complete statement; B, that
15 it was correctly translated; C, that it was transliterated back into
16 English correctly; and that the interrogator did not limit or excise from
17 the statement matters which were inconsistent with the Prosecutor's
18 position, then perhaps we could rely on the statement to find out if a
19 witness had direct knowledge. But not all investigators act with the
20 level of integrity that's required.
21 I think that even where you have a witness statement and the
22 witness says, "I have no direct knowledge of your client," you still must
23 interview him. You still must go and say, "You don't know. But who does
24 know? Take me to somebody who can help me. Tell me what is said in the
25 community. Tell me what you've heard about my client from others," for it
1 may be that this Tribunal will consider such hearsay as probative
2 evidence. That's the job of a lawyer, and that's what this Tribunal would
3 have done in the circumstances in which Ms. Maglov found herself.
4 We practice criminal law. Contempt is not knowing and wilful. It
5 is not negligence. Thank you.
6 JUDGE AGIUS: [Microphone not activated] Thank you.
7 Now, Mr. -- Mr. Ukropina.
8 MR. UKROPINA: Thank you, Your Honour.
9 JUDGE AGIUS: You have had an opportunity to -- to follow what has
10 been submitted by the learned counsel for Ms. Maglov and also by
11 Ms. Korner for the Prosecutor.
12 MR. UKROPINA: Yes. Thank you.
13 JUDGE AGIUS: We are giving you the opportunity to say whatever
14 you feel is pertinent in this context which would enable us, again, to
15 reach a proper decision later on.
16 MR. UKROPINA: Thank you, Your Honour. I hope you wouldn't mind
17 me speaking in B/H/S language. It would be easier to express my views and
18 to justify my conclusions. Thank you.
19 JUDGE AGIUS: Not at all.
20 Mr. Shellow, you need to put your channel -- switch to channel
21 number 4.
22 MR. SHELLOW: [Microphone not activated]
23 JUDGE AGIUS: Yes. Please go ahead.
24 MR. UKROPINA: [Interpretation] Your Honours, Mr. Shellow, during
25 his submissions mentioned several facts and opened several doors that I
1 should like to refer to in my brief submissions.
2 The first of those questions is the status of the witness, that
3 is, the way in which the status of the witness is described in the report.
4 In the report, the status of the witness in connection with his protective
5 status is mentioned in one place only, paragraph 7, under the heading
6 "Analysis." And I should like to quote that part of the report.
7 [In English] [Previous translation continues] ... for full
8 protection as the Prosecution witness."
9 [Interpretation] In the report it is not mentioned anywhere that
10 full protection was given to the witness; therefore, the status of the
11 witness refers to his status as a Prosecution witness and not as a
12 protected witness.
13 Mr. Shellow also mentioned in the course of his presentation that
14 in the documents on the basis of which the proceedings are conducted in
15 this Tribunal, there is no rule that makes it incumbent upon counsel
16 to introduce themselves to witnesses or to anyone else that they contact
17 in the field. I should again like to quote in English Rule 18, paragraph
18 2 of the Code of Ethics of the Tribunal which specifically says: [In
19 English] "[Previous translation continues] ... the unrepresented person of
20 the role counsel plays in the matter, the persons right to counsel under
21 the rules, and the nature of legal representation in general."
22 [Interpretation] I understand this provision as implying the
23 obligation of Defence counsel and all those taking part in the proceedings
24 when contacting persons in the field to introduce themselves by first and
25 last name and to indicate the profession or title or position they hold in
1 this Tribunal.
2 I should like to go back for a moment to the witness statement
3 that has been attached to the report. There is no doubt that during the
4 visit or visits to the witness, reference was made to whether -- to the
5 point whether the witness would testify or not for the Defence. And then
6 the witness was told, and not asked, about Brdjanin's guilt.
7 In the last statement of the witness, in paragraph 4, last
8 sentence, the witness was told, "You know that Mr. Brdjanin may be held
9 responsible for the events in that municipality if his position was a
10 position in the regional Crisis Staff." At the end of this sentence,
11 there is a question mark, but this is a statement not a question and the
12 witness is simply asked to confirm it, because that is the way it has been
13 worded. This sentence, or rather, this statement or assertion in my
14 opinion is an attempt to influence the witness to change his statement up
15 to a point. I don't think that the fact that Ms. Maglov and Mr. Peric
16 note that the witness did not know Mr. Brdjanin or anything about him.
17 But as Mr. Shellow himself has said, he may change his position; he may
18 remember certain facts. And this assertion addressed to the witness can
19 influence him when he is making his statement.
20 I should also like to remind Your Honours of Article 14 of the
21 Code of Ethics which speaks about the integrity of evidence and the
22 protection of evidence. So Defence counsel must constantly and at all
23 times protect the integrity of evidence. I mention Article 14 in the
24 context of Rule 5(A), and that is the Defence counsel must act
25 professionally, attentively, with care, integrity, honesty, and belief,
1 and faith.
2 By presenting the names and profession and the place where the
3 witness is employed to a person who has been described as person Z, in
4 December 2000, Ms. Maglov and Mr. Peric did violate Article 5(A) in my
5 opinion of the Code of Ethics that is applicable in this Tribunal and in
6 connection with Article 14 of the same Code of Ethics. All these
7 violations, in my submission, do affect the belief that Article 5(D) has
8 been violated. Therefore, any conduct of a person appearing in this
9 Tribunal which is not in accordance with the Code of Ethics does lead to
10 the violation of the integrity of that person, in this case Defence
11 counsel, and the integrity of the legal profession as a whole. Thank you.
12 MR. SHELLOW: May I briefly respond?
13 JUDGE AGIUS: [Microphone not activated] Pardon?
14 MR. SHELLOW: May I briefly respond to the amicus.
15 JUDGE AGIUS: Yes, briefly, please.
16 MR. SHELLOW: Oh, very briefly, Your Honour.
17 I think and I concluded --
18 JUDGE AGIUS: I would -- before you respond, I would like to be
19 addressed by either you, Mr. Shellow, or you, Ms. Korner, or you,
20 Mr. Ukropina, on the line of demarcation which distinguishes misconduct
21 from misconduct that amounts to contempt. Because what we are dealing
22 with here or what we should be dealing with here is a misconduct which is
23 such as to amount to contempt under the rules or under the -- under the
24 rules in particular. I mean, a misconduct can be established under the
25 Code of Conduct of this -- of --
1 MS. KORNER: Your Honour, I think we need for that -- and I'm
2 sorry, we should have -- as I say, I was -- as I wasn't sure what this
3 hearing was going to be, there is authority coming from the case of
4 Tadic. There's a whole -- we'd have to look hat that.
5 JUDGE AGIUS: I have it. But I want to hear some submissions --
6 or rather, I would like to hear some submissions. When I say "I want," it
7 means I would like or I should like.
8 MS. KORNER: Well, well, I mean -- Your Honour, my difficulty is,
9 unlike Mr. Shellow -- I didn't know he was going to be raising American
10 authorities. I hadn't looked at any authorities at all, because I thought
11 today was --
12 JUDGE AGIUS: I wasn't prepared to actually -- that -- in a way I
13 was prepared, but I wasn't expecting to be faced with case law. Anyway, I
14 mean, it's -- I do understand.
15 MS. KORNER: Well, Your Honour, I would certainly -- it may well
16 be that perhaps Your Honour, although you know -- although as Your Honour
17 knows, I'm not very keen on all this constant motions practice -- if we --
18 Your Honour, we were to make submissions in writing.
19 JUDGE AGIUS: I think that it would be useful. I think it -- and
20 it's -- we discussed at length, the other Judges and myself, this morning
21 on the various implications. And I can confide with you that one of our
22 major concerns in the -- in the whole scenario is precisely what
23 characterises a misconduct such as to become a concern of this Tribunal as
24 a matter of contempt. And that is fundamental to this -- to this issue.
25 And unfortunately it's one area which has not been addressed, maybe
1 because we did not put you in that direction straight away from the very
2 beginning. But having heard all that all sides had to submit till now, I
3 think it's my duty at this point in time to at least mention this to you.
4 And if you do require time to submit -- provide us with written
5 submissions on this point, I think that would be useful.
6 MS. KORNER: Your Honour, I think -- would Your Honour be prepared
7 to, say, 14 days? Because I think we ought to do some proper research
8 into the various jurisdictions as well as the Tadic appeal.
9 JUDGE AGIUS: Yes. And --
10 MS. KORNER: And present a complete picture to Your Honour.
11 JUDGE AGIUS: Yes. I would like to hear what Mr. Shellow has to
13 MS. KORNER: Contempt, yes.
14 JUDGE AGIUS: We'll -- would you agree to submit written pleadings
15 on this point that I have mentioned?
16 MR. SHELLOW: I'd like to confer with my client on that, if I
18 I would like to address the matter though --
19 JUDGE AGIUS: Yeah. But before addressing this matter, you were
20 going to tell us something else. I think you were going to respond to
21 Mr.-- to Mr. Ukropina. So do that first.
22 MR. SHELLOW: Yes.
23 JUDGE AGIUS: And then address the other matter, please.
24 MR. SHELLOW: The statement -- the words are: "You know how
25 Mr. Brdjanin can be responsible for events in Kotor Varos if his position
1 was the president of the regional Crisis Staff." And the question is
2 whether or not that statement was made with the inflection of the voice
3 going up at the end and that became a question and that's why it was put
4 with a question mark or whether the voice went down and that it should
5 have had a period. I assume it had a question mark there because it was
6 the intent of the person who translated it to demonstrate that it was a
7 question and not an assertion.
8 Now, secondly, let's -- let's even assume that it was -- that it
9 was an affirmative statement. This is a statement made in September.
10 They hadn't seen a Prosecutor's statement by that time -- they hadn't seen
11 a statement given to the Prosecutor. And they go to a witness and they
12 say basically -- you know, you go to a witness who supposedly witnessed a
13 hold-up and you say, "How could you have seen that? It was dark
14 outside." Now, are you telling the witness I want you to testify that you
15 didn't see what you claim you saw? Of course not. That is, in
16 questioning a witness, the subtleties of syntax in which the amicus would
17 ask us to engage just is not appropriate. The questioning of a witness is
18 a spontaneous, creative, imaginative act. We are trying to learn
19 something from someone who may know something.
20 Now, as far as -- as far as the amicus now going to Rule 18, which
21 I had before me a moment ago, and Rule 14. Rule 18 -- no. These are
22 Rules of Procedure. That's not what I want. And that's not what I
23 want -- here, I have it.
24 Rule 18, it says: "If counsel is dealing with a person who's not
25 represented, you shouldn't give advice to an unrepresented person. And
1 Ms. Maglov didn't. You might advise the witness to secure legal
2 representation, but it's not required. And he must inform the
3 unrepresented person of the role counsel plays. Well, she did at the
4 beginning in September. And I doubt that she did it again in December.
5 It doesn't say you must do so as the outset of the interview. And the
6 person's right to counsel under the rules just wouldn't have been
7 appropriate. You're not asking a witness to incriminate himself or
8 herself. And the nature of legal representation in general is that the
9 nature of legal representation by counsel or is that the nature of legal
10 representation in an adversary system or in a civil system? I just don't
11 know. That doesn't help matters any. That doesn't help to clarify
12 5(A) and (D). And as far as article 14 is concerned, "Counsel must at all
13 times maintain the integrity of evidence whether it is written, oral, or
14 any other form, which is or may be submitted to the Tribunal." That is
15 what at least in the United States is referred to as the integrity or
16 chain of custody, of testimony of witnesses, that you don't destroy
17 documents, that you don't write on documents that you're not supposed to.
18 That doesn't address the question of how you question a person who may
19 have knowledge of events. That has nothing to do with that.
20 If what the -- if what the amicus is suggesting is that Ms. Maglov
21 suborned perjury, that's something else again entirely, but it certainly
22 isn't in this record.
23 Now I would like to address very briefly the Court's question of
24 misconduct in contempt. It is the position of counsel and Ms. Maglov that
25 contempt falls basically into two categories: Acts that are committed
1 before the Court and acts that are committed out of court. For acts
2 that are committed out of court - to be contempt - there must be a wilful
3 and intentional violation of a court -- of an explicit court order in that
4 case or a general order of the court applying to all cases or a wilful and
5 intentional violation of a serious provision of the Code of Professional
6 Conduct. That is a provision that is intended to preserve the integrity
7 of the Court and the administration of justice. It is not every
8 misconduct out of court that constitutes contempt. Would it have been
9 better for Ms. Maglov at the outset of the first interview, before there
10 was any social conversation with the witness, for her to say, "I am a
11 Defence counsel of Mr. Brdjanin"? Perhaps. But there's no explicit
12 command that it must be done at the outset. It's just that at some point
13 it should be done. And she did it. Should she in December have repeated
14 the identification? I would have. Probably the Court -- the Tribunal
15 would have. But you don't have to tell a person twice who you are and
16 what you're doing there. Should she have phrased her questions
17 differently? I don't think so. She acted like a lawyer. She acted like
18 we expect lawyers to act. There is nothing in Rule 14, 18, 5 that says
19 she acted improperly. No. Misconduct out of court should be in a whole
20 variety of ways. You can tell a newspaper that in your opinion a witness
21 was drunk when he was on the stand. That's misconduct. If the witness
22 has already testified and there's no trier of fact who's going to be
23 contaminated, it may not be such a serious matter. And so misconduct to
24 rise to the level of contempt -- contempt carries with it, Your Honours,
25 the meaning of the word -- "contempt" in the English language, the
1 etymology of "contempt" is that what you are doing is you are acting --
2 it's the same root as "contemptuous," as "contemptible." It's a very bad
3 thing that you that do it intentionally and knowingly and wilfully, that
4 you're trying -- you're trying to obstruct the proceedings, the
5 administration, justice. That's the kind of misconduct in which one
6 must engage for a Court to bring an orderly show of cause why a witness --
7 why a lawyer must be held in contempt.
8 JUDGE AGIUS: Okay.
9 MR. SHELLOW: Thank you.
10 JUDGE AGIUS: And --
11 MR. SHELLOW: As far as written submissions, if I could have a
12 minute to talk to my client, I will tell you.
13 JUDGE AGIUS: Yes, certainly.
14 Mr. Ukropina, some questions that the Bench would like to put to
16 MR. UKROPINA: Yes, Your Honours. I would like to emphasise one
17 part of the order requesting investigation.
18 JUDGE AGIUS: Yes.
19 MR. UKROPINA: That's the last part of the order. Considering
20 that the following -- the change of views by the parties during trial
21 proceedings on May to April 2002 the following issues required further
22 investigations. And under 2, whether at the commencement of her visit to
23 the witness, Ms. Maglov immediately identified herself and her role in the
24 current proceedings. So the question was whether she immediately
25 identified herself, not whether she identified herself at all.
1 JUDGE AGIUS: Yes. Yes, and you are right. You are right. That
2 was the question that you had to investigate.
3 MR. UKROPINA: Yes.
4 JUDGE AGIUS: Yes. Okay.
5 MR. UKROPINA: Yes. Thank you.
6 JUDGE AGIUS: Thank you. And report upon.
7 Yes, Judge Taya.
8 MR. SHELLOW: Let me address the matter of written submissions.
9 Counsel is in a fairly awkward position on this, the reason
10 being -- I flew here not from my office in Milwaukee. I flew here from my
11 home in the south of France. It is -- yes, Your Honour.
12 JUDGE AGIUS: I think I will try to keep you there as long as you
13 like it.
14 MR. SHELLOW: I am scheduled to remain in the south of France
15 until the 17th of July, one week from today. I leave for Milwaukee. I
16 then -- I then make my court appearances. And if the Court indulges me, I
17 leave on August 24th to come back to France for -- for the fall for five
18 weeks or six weeks, and then I go back to Milwaukee and then I come back
19 for Christmas and New Year's. But that schedule makes it somewhat
20 difficult for me to --
21 JUDGE AGIUS: It's obvious that you can afford to defend
22 Ms. Maglov pro bono.
23 MR. SHELLOW: Well, yes. An appearance before this Tribunal is an
24 honour. It is a somewhat less honour to -- to be preparing a substantial
25 submission; that is, I will certainly do it if the Court orders it.
1 JUDGE AGIUS: No. We are not going to --
2 MR. SHELLOW: I think the issues are --
3 JUDGE AGIUS: You're --
4 MR. SHELLOW: I think the issues are clear. I think Ms. Maglov's
5 position is clear. If the Court has any questions of counsel, I will of
6 course be happy to do whatever I can to answer them but I think --
7 JUDGE AGIUS: Yeah. All right. But it still wouldn't -- I still
8 would not deprive the Prosecution from filing a statement of -- or note of
9 submissions --
10 MS. KORNER: Your Honour, you wouldn't be depriving us of
11 anything. We were just discussing when we were going to fit it in. But
12 our position is this: If Your Honours feel it is of assistance, we will
13 do the research.
14 JUDGE AGIUS: I think it will be of assistance. I think we can
15 very briefly, succinctly, tell you how we visualise the whole exercise
16 that we have to do.
17 MS. KORNER: Yes.
18 JUDGE AGIUS: Number one, please, I hope that you have understood
19 and do not doubt for a single moment that we will be looking at the whole
20 scenario and decide on a prima facie basis whether there is a case to
21 answer. This is more or less an exercise than one that -- similar or
22 along the lines of one -- what one would do during a committal stage -- at
23 the end of a committal stage, before deciding on whether to proceed with
24 the issuance of -- of a bill of indictment in jurisdictions that we are
25 familiar with.
1 So in other words, this Trial Chamber will not go into the merits
2 that will be the function of the Chamber, that will deal with the contempt
3 proceedings, if there will be contempt proceedings. We will just look at
4 the facts as presented to us in the report and previously during -- in the
5 statement that Ms. Korner referred to and in Ms. Maglov's statement in
6 court here way back I don't remember when and on the basis of that decide
7 whether incorporating or fitting those facts in what we consider to be the
8 applicable law there is a probable case to answer; in which case we will
9 obviously proceed with an order initiating contempt proceedings. If we
10 are not happy -- if we come to the conclusion, for example, that there may
11 have been a shortcoming in -- in one's conduct but not a shortcoming which
12 would be -- could be characterised as contempt, then our function stops
13 there because it's not our function to deal with misconducts. It's our
14 function to deal with -- in this particular case, with an alleged contempt
15 and nothing short of that.
16 In doing this, obviously we -- we would appreciate any help that
17 could be forthcoming in enlightening us in what would be the line of
18 demarcation, because I think that is fundamental in this case.
19 MS. KORNER: Well, Your Honour, we'll do the research as far as we
20 can and supply, as it were, I suppose in the role of amicus, what the
21 authorities seem to suggest.
22 JUDGE AGIUS: Thank you.
23 MR. SHELLOW: Your Honour, perhaps I can resolve my own
24 problems if I could receive the -- the submission of the Prosecution and
25 have ten days after I receive it to see if there's anything that I need to
1 reply to that I haven't already --
2 JUDGE AGIUS: Yes. You will have all the time that you require.
3 This is not something that we feel we are pressed -- especially pressed by
4 time to conclude or bring to an end. We will do our utmost to bring it to
5 an end as quickly as we can. But obviously, I mean, if you require ten
6 days, we are not going to -- even two weeks, we are not going to say no.
7 Definitely not.
8 MS. KORNER: Your Honour, we would certainly ask that we be
9 given -- we do have a staffing problem at the moment, although Mr.
10 Ackerman will never believe it. So I'd ask if we could be given until the
11 end of the month.
12 JUDGE AGIUS: Yes.
13 MS. KORNER: Or until the 26th of July, when the Court rises.
14 JUDGE AGIUS: Yes. You have that number of days available.
15 MS. KORNER: Thank you very much.
16 MR. SHELLOW: And may I have ten days?
17 JUDGE AGIUS: And then we will adjust --
18 MR. SHELLOW: May I have ten days after that to prepare a reply if
19 I find it necessary?
20 JUDGE AGIUS: Ten days after being served with a copy.
21 MR. SHELLOW: Fine. And I will --
22 JUDGE AGIUS: Actually, we are giving you 14 days rather than 10.
23 MR. SHELLOW: That's fine. Yes.
24 JUDGE AGIUS: We'll do it the French way, a fortnight.
25 MR. SHELLOW: Thank you very much.
1 JUDGE AGIUS: So Judge Taya.
2 JUDGE TAYA: I have two kinds of questions to amicus curiae. The
3 first one concerns disclosure of witness's statement. According to the
4 Prosecution, the statement of the witness was disclosed to the Defence on
5 20th April 2001. I think such a disclosure is carried out via DHL package
6 to the lead counsel, Mr. Ackerman. And DHL has a record of delivery date.
7 So I ask you whether you investigated the delivery date of that package to
8 the lead counsel. That is number one. And did you investigate by what
9 way and when this package was delivered to Mrs. Maglov.
10 MR. UKROPINA: [Interpretation] Your Honours, I did not investigate
11 how and when the witness statement was delivered to Mr. Ackerman as lead
12 counsel. The only information I received about that was from the
13 Prosecution, the date being the 20th of April, 2001. As for how and when
14 the statement was disclosed to Ms. Maglov, according to what she stated,
15 they received the statement in between the two visits in September and
16 December. This is what she says in her statement, and this was confirmed
17 by Mr. Peric.
18 So my submission is that the actual knowledge by Ms. Maglov and
19 Mr. Peric of the witness statement has even greater weight because they
20 went to see the witness again in December and again raised the question of
21 his testimony.
22 Also, they disclosed the name and surname of the witness to Mr. Z,
23 who has nothing to do with this case, which I also consider to be a
24 violation of the Code of Ethics.
25 JUDGE TAYA: Thank you. My second question concerns non-Serbs who
1 might be approached by Mrs. Maglov in Kotor Varos. According to your
2 investigation in the municipality of Kotor Varos, are there any other
3 non-Serb person who was approached by Mrs. Maglov to become a witness for
4 the Defence counsel in Brdjanin and Talic case?
5 MR. UKROPINA: [Interpretation] Your Honour, from Ms. Maglov's
6 statement and those of Mr. Peric and [redacted]
7 [redacted], he advised them to contact another person of Croat ethnicity.
8 JUDGE AGIUS: One moment. We will have to redact again -- yeah --
9 MR. UKROPINA: Okay.
10 JUDGE AGIUS: -- [redacted].
11 Yes. Go ahead, please.
12 MS. KORNER: Yes. Thank you, Your Honour. Yes, that's right.
13 MR. SHELLOW: Your Honour, I -- I forgot something that I had
14 taken up with my friend.
15 JUDGE AGIUS: Let -- let the amicus finish first, please.
16 MR. SHELLOW: Of course.
17 JUDGE AGIUS: And then I'll give you the floor.
18 Sorry to have interrupted you, Mr. Ukropina. You said: "Your
19 Honour, from Ms. Maglov's statement and those of Mr. Peric and --" the
20 gentleman whose name we have struck off now "-- he advised them to contact
21 another person of Croat ethnicity."
22 MR. UKROPINA: [Interpretation] Yes.
23 JUDGE AGIUS: And you were going to say something else. I don't
24 know. I mean ...
25 MR. UKROPINA: [Interpretation] Yes, precisely so. But there's no
1 trace as to whether they did contact that other person, whether they
2 interviewed him and whether that person has been put on the list of
3 Defence witnesses or not.
4 But I -- what I would also like to point out is the document
5 appointing the amicus and giving instructions to the amicus as to what he
6 should do. And as far as I was able to understand those instructions,
7 especially whether there are any other non-Serbs that might testify in
8 this case, it was not covered by those instructions and, therefore,
9 I did not investigate the matter. Thank you.
10 [Trial Chamber confers]
11 JUDGE AGIUS: Yes. Mr. Shellow, do you have any final -- a final
12 remark that you --
13 MR. SHELLOW: Only an administrative matter that I discussed with
14 my colleague.
15 JUDGE AGIUS: Yes.
16 MR. SHELLOW: The document which I have designated as an outline
17 which has been submitted to the interpreter and I believe either will be
18 or has been already submitted to the report - and a copy of it, I believe,
19 has been tendered to counsel for the Prosecution - contains the
20 information that the Tribunal has redacted from the statements that we
21 have made. And so I would ask then that it be filed with the Court and
22 filed under seal. And that will give the Court the benefit of the
23 authorities upon which I'm relying, the benefit to some extent of my
24 attempts at argument therein. It's essentially an outline --
25 JUDGE AGIUS: We can bypass that very easily, not having it
1 admitted as an official document. It's just a document that has been
2 circulated which the -- we will take as an aid to what we have in the
3 transcript and to the personal notes that we have taken. And the same
4 applies to Ms. Korner and the other officials of this court. So in other
5 words, it will be a document which we will use obviously but not
7 MR. SHELLOW: That's fine.
8 JUDGE AGIUS: Thank you. And thank you for bringing this --
9 MS. KORNER: Your Honour, just in relation to Judge Taya's
10 questions. We can supply -- clearly, we were just asked for the date; I
11 mean, nothing further. But we can supply the documentation in relation to
12 that delivery if it's so required.
13 JUDGE AGIUS: You mentioned a receipt earlier on.
14 MS. KORNER: We give -- the Defence counsel are always asked to
15 sign receipts. Your Honours may have noticed that Mr. Ackerman never
16 seems to have any papers, although Madam Fauveau does. And so he's
17 stopped signing those receipts now. But in those days I think he was
18 still signing them. So we do have receipts. And I think the situation
19 has been with Mr. Ackerman on some occasions he's collected the documents
20 from the locker and on some, as Judge Taya rightly says, we've sent it
21 over by DHL. But it shouldn't be too difficult to find out which -- which
22 type of delivery this one was.
23 So Your Honours, we're simply saying if Your Honours at some later
24 stage would require that information, we can provide it.
25 JUDGE AGIUS: Yes. I think I can safely say yes, we will require
1 that information. And you have our authority to file it -- to file the
2 information formally, with a copy to be transmitted to Ms. Maglov and her
4 MS. KORNER: Yes. We'll do that.
5 JUDGE AGIUS: Thank you.
6 Is there anything that you would like to say, Mr. Brdjanin? I
7 don't suppose so.
8 THE ACCUSED: [Interpretation] After the lawyers, I really think
9 anything from me would be superfluous. Thank you.
10 JUDGE AGIUS: Okay. And Madam Registrar.
11 [Trial Chamber and registrar confer]
12 JUDGE AGIUS: So that brings us to the end of today's hearing. I
13 wish to thank you, Mr. Shellow, for having come over and for having given
14 us such high-level argumentation on the subject. We will await for the
15 further notes of submission and we will come down with our -- hand down
16 with our judgement -- our decision in due course, keeping in mind that
17 none of us will be present here in August but we'll -- we'll be working
18 on it in cooperation with the staff that will be here during the month of
19 August. But as soon as practicable, we will try and hand down our
21 I thank you, Ms. Korner, also for your assistance.
22 And to you, in particular, Mr. Ukropina, for your report and also
23 for your patience and assistance today. Thank you.
24 Thank you, Mr. Brdjanin, for coming.
25 --- Whereupon the hearing adjourned at 5.28 p.m.