Tribunal Criminal Tribunal for the Former Yugoslavia

Page 23290

1 Monday, 8 December 2003

2 [Open session]

3 --- Upon commencing at 9.07 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes, good morning. Madam Registrar, could you call

6 the case, please.

7 THE REGISTRAR: Good morning, Your Honours. Case Number

8 IT-99-36-T, The Prosecutor versus Radoslav Brdjanin.

9 JUDGE AGIUS: I thank you, ma'am.

10 Mr. Brdjanin, good morning to you. Can you follow the proceedings

11 in a language you can understand?

12 THE ACCUSED: [Interpretation] Good morning, Your Honours. Yes, I

13 can.

14 JUDGE AGIUS: I thank you. And good morning to you.

15 Appearances, Prosecution.

16 MS. KORNER: Good morning, Your Honours. Joanna Korner assisted

17 by Denise Gustin, case manager.

18 JUDGE AGIUS: Thank you.

19 Appearances for Radoslav Brdjanin.

20 MR. CUNNINGHAM: David Cunningham with John Ackerman, assisted by

21 Aleksandar Vujic, Your Honour. Good morning.

22 JUDGE AGIUS: I thank you and good morning to you all.

23 I understand there are some preliminaries.

24 MS. KORNER: Your Honour, may I start this morning, I was waiting

25 till Mr. Ackerman to return to the Court, although in fact in a sense it's

Page 23291

1 not something that he can have much of a say because it affects him. It

2 deals with the question of the contempt hearing against the Defence

3 attorney as she was then, Milka Maglov.

4 Your Honour will recall that during the hearing which I observed,

5 Ms. Hollis who has been instructed as amicus by the registry raised the

6 question of whether or not the composition of the Trial Chamber should be

7 the same as for the trial. And Your Honour, in essence, I'm raising it

8 now in the presence of Mr. Brdjanin and Defence counsel for this reason:

9 Your Honours have ordered that the hearing be held, effectively still

10 during the course of the trial against Radoslav Brdjanin.

11 Your Honours, aside from the fact whether it perhaps is a matter

12 that in any event should be dealt with by another Trial Chamber, although

13 I know in my jurisdiction, a contempt in the face of a court is dealt with

14 certainly in the first place by the Judge. Your Honour, here the facts

15 are slightly different, and the problem is one that I wish to before

16 Your Honours, that it's quite plain that Mr. Ackerman will be a witness.

17 Ms. Hollis raised, I think, the question of whether in fact she might call

18 him. Ms. Maglov made no bones about it. She intends to call Mr. Ackerman

19 as a witness.

20 And Your Honours, what that does is raise, in our respectful

21 submission, a difficulty in that Your Honours may find yourselves in the

22 position of having to assess the quality of Mr. Ackerman's evidence whilst

23 he is still appearing in front of you as Defence counsel. Your Honours,

24 in those circumstances, it seems to me that it may put everyone in an

25 embarrassing position, both Your Honours and Mr. Ackerman himself.

Page 23292

1 Your Honours, our respectful submission is that could have an effect,

2 could, and I say no more than that, at a later stage, once this trial is

3 completed, or even possibly whilst the trial is still going on. And

4 Your Honours, what we would respectfully ask - because in this the

5 Prosecution does have an interest - is either that this matter be, if the

6 date is to be retained, that it be heard by a different Trial Chamber or a

7 different composition of Trial Chamber II, or alternatively, that the

8 matter be adjourned until the conclusion of the proceedings in the

9 Brdjanin case.

10 JUDGE AGIUS: Yes. Thank you, Ms. Korner.

11 Do you have any comments, Mr. Ackerman?

12 MR. ACKERMAN: Your Honour, it would be inappropriate for me to

13 say very much because of my witness status. But I -- it has occurred to

14 me that if the Brdjanin trial is still ongoing at the time this hearing is

15 held, I might very well have a right to assert a privilege against

16 testifying based on work product and matters of that nature which would

17 not exist if the trial were over. And I have not consulted anyone

18 regarding that other than my own brain. But it could create a serious

19 problem, I think.

20 JUDGE AGIUS: Anyway, we will take what you have both stated into

21 consideration, and we will take a decision in due course. But I might as

22 well inform you that in the past month or so, there was -- there were

23 steps taken to have the case -- the contempt case transferred to another

24 Chamber again, the second time I tried that. And it was returned back to

25 us, and not only that, but another contempt case that we were going to be

Page 23293

1 seized with has been referred back to the same. So there is a policy

2 going on.

3 I do read you out loud and clear, Ms. Korner. Don't misunderstand

4 me. I do not share your preoccupations, and that I can say without

5 hesitation. I don't -- I'm not really worried about what you are worried

6 or what you are concerned with. I am more concerned with what

7 Mr. Ackerman has just mentioned now because that, indeed, could create a

8 problem for whoever tries to produce him or bring him forward as a

9 witness. But anyway, these may well be pleasures yet to come. But we'll

10 think about what you have stated and we will take a decision. Thank you.

11 Anything else before -- yes, Mr. Cunningham.

12 MR. CUNNINGHAM: Judge, I owe the Chamber an apology because I

13 didn't deliver an exhibit list. What I've tried to do, and done, is made

14 copies of the exhibits that I'm going to use and distributed them to the

15 Registrar. So I apologise to the Chamber about that. With respect to

16 witnesses, we had planned for Witness number 11 to be here this week.


18 MR. CUNNINGHAM: That witness is not testifying.

19 JUDGE AGIUS: All right.

20 MR. CUNNINGHAM: We believe that based on the representations made

21 by the OTP, that the witnesses we have scheduled which are 40, 63, and 64

22 will take us through the end of the business day on Thursday.

23 JUDGE AGIUS: All right. Thank you, Mr. Cunningham.

24 Let's go into closed session. We'll bring the witness in and

25 we'll see whether it's the case of confirming the protective measures that

Page 23294

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22 --- Whereupon the hearing adjourned at 1.42 p.m.,

23 to be reconvened on Tuesday, the 9th day of

24 December, 2003, at 9.00 a.m.