1 Thursday, 11th November, 1999
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4:00 p.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: Case IT-99-36-PT, the
8 Prosecutor versus Brdjanin and Talic.
9 JUDGE HUNT: Appearances for the Prosecution,
11 MS. KORNER: Your Honour, I represent the
12 Prosecution. My name is Joanna Korner, senior trial
13 attorney. I'm assisted by Mr. Michael Keegan and
14 Ms. Anna Richterova, trial attorneys, Ms. Ann
15 Sutherland, a legal officer, and Ms. Adele Erasmus, who
16 is the case manager.
17 JUDGE HUNT: Thank you very much. For the
18 accused, for Mr. Brdjanin.
19 MR. ACKERMAN: Your Honour, my name is John
20 Ackerman. I'm from the United States, and I appear
21 here today on behalf of Mr. Brdjanin.
22 JUDGE HUNT: Thank you. And for General
24 THE INTERPRETER: Microphone, please.
25 MR. PITRON: [Interpretation] Michel Pitron,
1 barrister from Paris.
2 JUDGE HUNT: Thank you very much. This is a
3 Status Conference held in order to comply with
4 Rule 65 bis. At this particular stage of the
5 proceedings, very little can be done in accordance with
6 that Rule, but there are some matters, I think, which
7 shall have to be cleared up.
8 First of all, Ms. Korner, what has happened
9 to the application to amend?
10 MS. KORNER: I'm sorry. I'm afraid it is all
11 new to me, so I forget to switch the court microphone
13 The situation is this: As we have informed
14 both the Court and those who represent the defendants,
15 it's our intention to lodge an application with the
16 Confirming Judge to amend the indictment. The only
17 reason that that hasn't happened so far is that the
18 Prosecutor, Ms. del Ponte, has been away for the last
19 fortnight, and it is for her to consider whether or not
20 she wishes to sign the proposed amended indictment
21 before it can be transmitted.
22 JUDGE HUNT: Did you promise to do it within
23 28 days. Will you be able to do that?
24 MS. KORNER: That's up by next Friday. Yes,
25 we will. She's back on Monday.
1 JUDGE HUNT: And will this be an application
2 to file an indictment naming both of the accused
3 presently in custody, jointly?
4 MS. KORNER: It will.
5 JUDGE HUNT: Yes. Thank you very much.
6 Now for the accused, I should say I have
7 received a letter from Mr. de Roux. It appears to have
8 been written in response to the letter which was
9 written on behalf of the Prosecution concerning the
10 nature of the amendments that are to be made to the
11 indictment. I would like to point out that that letter
12 itself was written in response to an oral request to
13 give us some idea of the nature of the amendments being
14 sought. The letter from the Prosecution was filed.
15 It was not an invitation to the parties to
16 start debating before the Trial Chamber or to any Judge
17 thereof the merits of the application to amend. That's
18 a matter for the Confirming Judge, not for the Trial
20 But I would like to point out to you,
21 Mr. de Roux, that it really isn't appropriate to send
22 letters directly to the Judges anyway. If you would
23 mind following the usual procedure, that anything that
24 you want said should be filed and it will be filed and
25 taken account of in the usual way.
1 However, having read it, there is one matter
2 which you do raise which concerns me as the pre-trial
3 Judge, and that is the statement that you make that the
4 Defence has never had access to the documents
5 supporting the initial indictment against your client.
6 This is a matter that was raised at the
7 initial appearance, and I'm a little dismayed to hear
8 that you haven't got it yet. Have you still not
9 received any of the accompanying material? You have to
10 turn your microphone on.
11 MR. DE ROUX: [Interpretation] Your Honour, of
12 course. Your Honour, we saw the supporting materials
13 for the initial indictment, and at first sight, we
14 believe that in the supporting materials there is
15 nothing establishing a prima facie case for which
16 General Talic is charged with.
17 On the other hand, we know that a
18 considerable amount of documents was seized in Banja
19 Luka. Among such documents were the military archives,
20 the archives of the police, and those of the
21 municipality. We know that the documents are available
22 to the Prosecution, and we believe that in order to
23 properly defend General Talic we need to have access to
24 the same documents in the same way as the Prosecution
25 does. It seems to be a normal course of things so
1 there is an equality of arms when it comes to
2 interpreting documents. We should not be given
3 documents in dribs and drabs, according to the whims of
4 the Prosecution.
5 The charges against General Talic are very
6 serious; we have in mind crimes against humanity. This
7 is a very serious case involving the very history of
8 the Yugoslav conflict in 1991 and 1992. There's a lot
9 of work to be done, and presently we are faced with
10 this rather strange situation.
11 In as much as the charges and the indictment
12 was held secret, we do not know today how many
13 co-accused there may be in this case, neither do we
14 know on which foundation the Prosecution is basing her
15 charges, to what extent there is more documentation and
16 whether, among the documents, there may be exculpatory
17 documents as well as the documents incriminating the
18 accused. We need to have a purview of the entire
19 documents so that we can have an idea of the documents
20 that are incriminating and those that are exonerating
21 the accused, which is not the case today, and I shall
22 insist on this.
23 If we read the papers that were disclosed to
24 us, at first sight, it does not appear that a prima
25 facie case can be established for crimes against
1 humanity against General Talic. So we request from the
2 Prosecution to say what her foundation is.
3 Your Honour, I had an instantaneous reaction
4 when I heard that the indictment was being amended, and
5 it was for this reason: I had the feeling that the
6 indictment may not be amended on the basis of documents
7 or facts that were already known to the Prosecution
8 when the initial indictment was issued.
9 So this is our position as far as these
10 proceedings are concerned.
11 JUDGE HUNT: I understand you have a number
12 of complaints to make, Mr. de Roux, but I do want an
13 answer to the question that I asked you originally.
14 Have you received the documents which the Prosecution
15 say consists of the accompanying material which was
16 provided to the Confirming Judge? I'm not concerned at
17 this stage with whether they are sufficient or whether
18 there should be others. All I want to know is have you
19 received those documents?
20 MR. DE ROUX: [Interpretation] Yes.
21 JUDGE HUNT: Thank you. Well, then the rest
22 of it is not really a matter for me to determine,
23 either at this stage or, I think, at all; however, that
24 may the subject of some further debate at a later
1 I think I should explain to you, however,
2 there is a difference between the documents which are
3 the accompanying material and those documents which
4 have to be disclosed by the Prosecution subsequently
5 under the Rules, under their duties of disclosure;
6 there is yet a further distinction between those and
7 the documents which the Prosecution must disclose
8 because they are exculpatory in nature. It may be that
9 when you have had the opportunity to consider the
10 Rules, and a number of decisions in relation of them,
11 that distinction will become more apparent to you.
12 Now, at this stage, Ms. Korner, it seems that
13 the promise by Mr. Stewart at the Initial Appearance
14 has been carried out. You, no doubt, are also getting
15 ready the material to place before the Confirming
16 Judge, the additional accompanying material, are you?
17 MS. KORNER: Yes.
18 JUDGE HUNT: At that stage, you'll be able to
19 supply that to the accused.
20 MS. KORNER: Yes.
21 JUDGE HUNT: Then you will have to comply
22 with the obligation of discovery, under whichever Rule
23 it is, I've forgotten the number of it --
24 MS. KORNER: 68.
25 JUDGE HUNT: -- yes, which is quite different
1 from the present problem we face.
2 MS. KORNER: Yes.
3 JUDGE HUNT: Thank you for that.
4 Is there anything else that any of the
5 parties wanted to raise in accordance with Rule 65
7 MS. KORNER: Your Honour, there is a matter
8 that I want to raise which is slightly out of the
9 ordinary, but it is a matter that I feel ought to be
10 before the Court. I've raised the matter with Mr. de
11 Roux outside court.
12 I don't know whether Your Honour was ever
13 provided with an article from a French newspaper called
14 Sud Ouest Dimanche.
15 JUDGE HUNT: No. I'm sorry. It may have
16 been in the press cuttings, but I'm afraid, as
17 Mr. de Roux has already pointed out, my native tongue
18 is English.
19 MS. KORNER: Your Honour, we've had it
20 translated into English, and I wonder whether I could
21 pass it up to Your Honour because there are two matters
22 which --
23 JUDGE HUNT: Have you got a copy of it for
24 Mr. de Roux?
25 MS. KORNER: He's got it, I've given him a
1 copy, and Mr. Ackerman has got an English translation
2 of it.
3 JUDGE HUNT: Thank you.
4 MS. KORNER: Your Honour, the relevant parts
5 that concern us can be seen in the English translation
6 at page 3, headed "Secret Documents".
7 JUDGE HUNT: Yes.
8 MS. KORNER: Your Honour, this, I understand
9 from Mr. de Roux, was an interview that was conducted
10 with him and an article written as a result, but he
11 says that it is 50/50 accurate, I understand it.
12 He said to the newspaper, rather along the
13 line of the theme he's enumerated today, that there was
14 no evidence against his client. He then goes on to
15 say: "I put this question to Mrs. Korner," in the
16 original my name is misspelled, but it's been
17 corrected, "one of the English prosecution attorneys at
18 the ICTY in charge of the case file. She
19 replied, 'Fine, so there's nothing the 350 official
20 documents ...'" I imagine that's meant to mean I agreed
21 with his suggestion, but that I had "'secret documents
22 in my possession which will get him convicted.'"
23 Your Honour, I don't want to go into the ins
24 and outs of what was an out-of-court conversation, save
25 to say this: that should there be any suggestion in
1 future that at any stage I ever said that I had "secret
2 documents in my possession which will get him
3 convicted," I completely and utterly refute that.
4 JUDGE HUNT: I suppose, Ms. Korner, you start
5 with the proposition that you should never accept what
6 you read in the newspapers.
7 MS. KORNER: Exactly.
8 JUDGE HUNT: Having spent most of my life
9 appearing both for and against the newspapers, I think
10 I am very well aware of that.
11 However, there is a more fundamental problem
12 that I see with this article. It is little help to
13 this Tribunal to have the merits of its cases debated
14 in the media before we have had the opportunity of
15 hearing the case. It seems to me a little unfortunate
16 that we now have these interviews taking place in
17 France, as they appear to take place regularly in the
18 United States.
19 I'll only say this: What is said in the
20 media about trials is disregarded by this Tribunal, it
21 will have no effect upon us, but that's not the evil of
22 trying to debate cases in the media. What it does, it
23 seeks to influence public opinion in advance of
24 findings by the Tribunal, and that is both unfortunate
25 and, if I may say so, with all due respect,
1 irresponsible. I hope that it will not continue.
2 MS. KORNER: Your Honour, with respect, I
3 agree. I should say that Mr. de Roux accepts that what
4 appears in that article, by and large, was stated by
5 him. I don't know what powers the Tribunal has in
6 respect of counsel before the Tribunal giving
7 interviews about matters in which they're engaged.
8 Certainly, I know in my jurisdiction, and I believe in
9 Your Honour's, it isn't allowed.
10 But, Your Honour, it does seem to me not only
11 unhelpful but positively deleterious to the
12 administration of justice if such a thing were to be
14 JUDGE HUNT: I think I've made my position
15 clear, Ms. Korner. I hope it will not be repeated.
16 Now, is there anything that you want to
18 MS. KORNER: No. Thank you very much.
19 JUDGE HUNT: Anything on behalf of the
21 MR. ACKERMAN: If Your Honour, please. I
22 just want to address you and the record with the
23 following proposition. I appear here today under some
24 reservation in that I have filed a motion to dismiss,
25 attacking the jurisdiction -- questioning the
1 jurisdiction of this Tribunal under the current
2 indictment. That issue is now before the Appellate
3 Chamber, and I would not want my appearance here today
4 to be seen as any accession to the Court's jurisdiction
5 under the present indictment and, therefore, appear
6 here under that reservation.
7 JUDGE HUNT: Thank you.
8 MR. ACKERMAN: In addition I make no requests
9 of any kind regarding the current indictment for fear
10 that that might also be seen as an accession to
11 jurisdiction. Thank you.
12 JUDGE HUNT: Thank you, Mr. Ackerman.
13 Mr. De Roux, is there anything that you want
14 to raise in accordance with Rule 65 bis?
15 MR. DE ROUX: [Interpretation] Mr. Pitron.
16 JUDGE HUNT: Thank you very much.
17 Yes, Mr. Pitron.
18 MR. PITRON: [Interpretation] Yes, I would
19 like to say a few words, Your Honour. First all, on
20 behalf of General Talic, we shall express the same
21 reservations as our colleague John Ackerman did,
22 because we too filed a request challenging the
23 jurisdiction of this Tribunal.
24 Moreover, since we are in a Status
25 Conference, I would like to turn to the next deadlines
1 in terms of proceedings. I hope I'm right. I'm
2 seeking confirmation from you on this point.
3 We are today expecting a possible amended
4 indictment from the Prosecutor, and if I understand the
5 case law of this Tribunal, we should get a new draft
6 amended indictment before it is submitted for
7 confirmation to the Confirming Judge.
8 If I understood correctly, the Confirming
9 Judge may grant this new amended indictment and
10 following such a decision by the Confirming Judge, new
11 time periods will be allowed which will make it
12 possible to reply to the two requests or applications
13 we have filed. They relate to a motion for severance
14 of cases between Talic and Brdjanin, and they also
15 relate to the jurisdiction of this Court. So if that
16 was possible, could you confirm the time periods?
17 And I have a last question. We also filed an
18 application so that we be allowed to be disclosed the
19 entire documents in French, for the documents submitted
20 to the Prosecutor be translated into French, and that
21 we be given deadlines or time periods that would start
22 as of the time when we received the translation, and to
23 date we have not yet any response from the Tribunal.
24 Sorry for the many questions I have put, but
25 I would like to know your answers to them.
1 JUDGE HUNT: Well, I hope I have a note of
2 all the questions you've asked.
3 Firstly, the application by the Prosecution
4 to the Confirming Judge for leave to file an amended
5 indictment is an ex parte procedure. That is
6 fundamental to the Rules. That is why the Trial
7 Chamber has no jurisdiction over amendments to the
8 indictment prior to the commencement of the hearing of
9 the Prosecution. So I would not myself understand you
10 to be having any entitlement to a draft of that
11 document before it goes to the Confirming Judge.
12 If the Confirming Judge does grant the
13 amendment, then the Rules themselves provide for a new
14 timetable. Rule 50(C) provides:
15 "The accused shall have a further period of
16 thirty days in which to file preliminary motions
17 pursuant of Rule 72 in respect of the new charges and,
18 where necessary, the date for trial may be postponed to
19 ensure adequate time for the preparation of the
21 So that the time commences to run again as
22 from the new indictment. There does also have to be a
23 plea taken from the accused. That's pursuant to
24 Rule 50(B). That's in relation to any fresh charges.
25 So I think that answers the first two
1 questions you asked.
2 The third one, in relation to the translation
3 of the documents from English to French. This has
4 produced a problem which has not yet been resolved.
5 It's a new experience for the Tribunal to have parties
6 exercising their undoubted right to file their
7 documents in French. There has been, I think, two or
8 three occasions previously when for a short period of
9 time the documents were being translated from English
10 to French in the special circumstances of a particular
12 What has happened here has raised a
13 fundamental problem in relation to resources, and I am
14 afraid that those problems have not yet been resolved.
15 That is why you have not yet had a response to your
16 motion. It is, however, a matter that we are seeking
17 to resolve in a way which will be satisfactory to all
18 parties, and hopefully you will have an answer within
19 the next couple of weeks. It may be, however, that
20 there will have to be a complete rethinking of the
21 order for filing motions in this particular case
22 because of the special circumstances in it.
23 So I'm sorry you've had a delay. There's not
24 usually such a delay in deciding these matters, but it
25 will be resolved as soon as possible and you will be
1 given a copy. You will be provided not only with an
2 English version but a French version of any orders that
3 are made.
4 Are there any other matters?
5 MS. KORNER: No. Thank you very much.
6 JUDGE HUNT: Yes, Mr. Ackerman.
7 MR. ACKERMAN: Almost in the nature of amicus
8 curiae with regard to the issue that's just been
9 raised, there is available on the market, at some
10 significant expense, $900, a computer programme called
11 Systran that contains all the legal terms, both in
12 French and English, that does a remarkably good job of
13 translating documents back and forth between French and
14 English. That could be a good solution, because we
15 really don't necessarily have to have these documents
16 completely accurate, as long as we can understand what
17 they're saying. So that's a possibility.
18 JUDGE HUNT: Is this something you feed a
19 piece of paper in one end and it comes out the other
20 end in a different language?
21 MR. ACKERMAN: You actually -- it's a
22 computer programme, and you take the French document in
23 your computer and say, "Turn it into English," and it
24 does that. It's not nearly as good as the professional
25 translators but it does the job, and it's probably
1 cheaper at $900 than the personnel necessary to do it
3 JUDGE HUNT: I hasten to ask you: Do you
4 have some interest in this particular programme?
5 MR. ACKERMAN: Your Honour, I have no
6 interest in it whatsoever. However, if it becomes
7 popular around here I may acquire one.
8 JUDGE HUNT: Well, no doubt those who are in
9 the booths who have to wrestle with this problem will
10 take into account what you've said.
11 MR. ACKERMAN: I also want to say to the
12 people in the booths I'm not trying to deprive them of
13 their livelihood.
14 JUDGE HUNT: I don't think you need to worry
15 in this Tribunal. We will be going for a long time
16 with their work.
17 Thank you very much for your attendance.
18 There will have to be, obviously, if the -- I'll start
19 that again.
20 If there is an amendment to the indictment,
21 there will obviously have to be fresh pleas taken and
22 we will see you again then. Otherwise, there will be a
23 Status Conference within the next 120 days, but if you
24 have any problems that arise in the meantime, you may
25 file a motion and we will assemble again and hopefully
1 resolve it.
2 I'll adjourn.
3 ---Whereupon the hearing adjourned at
4 4.28 p.m. sine die