1 Friday, 14 November 2008
2 [Further Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.20 p.m.
6 JUDGE AGIUS: Good afternoon.
7 Madam Registrar, could you call the case, please.
8 THE REGISTRAR: Thank you, Your Honour.
9 This is this is case number IT-02-54-R77.5-PT, in the case against
11 JUDGE AGIUS: Thank you.
12 Good afternoon, everybody.
13 For the record, Mr. MacFarlane is present, as well as
14 Ms. Hartmann and her counsel, Mr. Bourdon.
15 I repeat to you first what I said the last time we met; namely,
16 that if in the course of the proceedings, interpretation is not reaching
17 you as it should, you would please draw my attention straight away.
18 The first thing I would like to put on record today is that
19 yesterday we were informed that the Registrar filed a decision concluding
20 that Ms. Hartmann is indigent for the purposes of legal aid. I just want
21 to make sure that both you, Ms. Hartmann, and that you, Mr. Bourdon, are
22 aware of this decision.
23 MR. BOURDON: [Interpretation] We have been informed, Your Honour.
24 JUDGE AGIUS: Thank you.
25 Now, Ms. Hartmann, at the initial appearance of the 27th of
1 October, you were informed by me of the charges against you in a formal
2 manner. You waived then your right to have the charges read out, and
3 more importantly you deferred your entry of a plea on the charges
4 contained in the amended order in lieu of an indictment of contempt,
5 pursuant to Rule 62(A)(iii) of the Rules. The main purpose of today's
6 further appearance is indeed to ask you to enter a plea. I also informed
7 you the last time we met that should you today not choose to enter a
8 plea, then pursuant to Rule 62(A)(iv) of the Rules, I shall proceed to
9 enter a plea of not guilty on your behalf for each of the charges brought
10 against you.
11 Ms. Hartmann, will you be entering a plea to the charges today?
12 THE ACCUSED: [Interpretation] Mr. Bourdon is going to answer on
13 my behalf.
14 JUDGE AGIUS: Yes, Mr. Bourdon.
15 MR. BOURDON: [Interpretation] Thank you very much, Your Honour.
16 Let me make two prior observations, very briefly.
17 When I had the honour of appearing before you, I told you that it
18 was not certain that I would be able to appear again, on account of the
19 fact that there was no decision yet as to the status of indigent
20 requested by Ms. Hartmann. You have told us that there was a positive
21 decision. We are very happy about it, of course.
22 I'm just saying this very rapidly, but I have to say it. I am
23 sad to see that there was an open disclosure about bank accounts. I
24 don't know whether this is common practice or not, but this is, in fact,
25 disclosing Ms. Hartmann's privacy. It's just a detail, but --
1 JUDGE AGIUS: Stop, stop, stop, let's put it like this, because I
2 suppose this is all due to the fact that you are not familiar with the
3 procedure of this Tribunal. Let's stick to what is on the agenda today.
4 I'm asking you a straightforward question. Are we going to
5 receive a plea from your client, yes or no? This is the purpose of
6 today's appearance. The rest you can bring up formally by means of
7 filings or whatever.
8 MR. BOURDON: [Interpretation] This was just a very brief
9 observation. She is not going to enter a plea, and I'm going to tell you
10 why straight ahead -- straight away.
11 JUDGE AGIUS: I'm not interested in knowing why she is not
12 entering a plea. Please, that's the end of the intervention. Please sit
13 down. I'm going to enter a plea of not guilty on her behalf, and we will
15 Madam Registrar, could you please enter into the record that as
16 per the declaration of Mr. Bourdon, Ms. Hartmann will not be entering a
17 plea to the charges brought against her today.
18 THE REGISTRAR: Yes, Your Honour.
19 JUDGE AGIUS: So I am now proceeding to enter a plea of not
20 guilty on behalf of the accused to both counts, and, Madam, you will just
21 place this on record, please.
22 THE REGISTRAR: Yes, Your Honour.
23 JUDGE AGIUS: The counts were read -- or the details of the
24 counts were given last time, so they don't need to be repeated.
25 Ms. Hartmann, I will refer this to the Trial Chamber so that the
1 Trial Chamber may act in accordance with Rule 62 bis of the Rules, and
2 instruct the Registrar of this Tribunal to set a date for proceedings,
3 pursuant to Rule 62 bis.
4 There are a couple of other issues I would like to raise, the
5 first of which is in relation to scheduling matters.
6 During the or in the course of the initial appearance, I had set
7 a deadline for the Prosecution or for the amicus curiae disclosure
8 obligations pursuant to Rule 66(A)(2) of the Rules, which lapsed four
9 days ago. I would like to ask you, Mr. MacFarlane, if you have completed
10 your disclosure obligations within the set deadline.
11 MR. MacFARLANE: Thank you, Your Honour.
12 The disclosure obligations have been completed. The material, in
13 accordance with the Rule, was placed on a CD-ROM and was couriered to the
14 offices of Mr. Bourdon before the deadline, and I understand that that
15 material has been received by Mr. Bourdon.
16 JUDGE AGIUS: Thank you, Mr. MacFarlane. I have no doubt that it
17 has been received. Indeed, there is a reference to the CD-ROM in one of
18 the two motions filed yesterday by the Defence of Ms. Hartmann. And I'm
19 going to specifically refer to the problem that I have and the Trial
20 Chamber would have in deciding one of those two motions in particular;
21 namely, in not knowing the contents of that CD-ROM.
22 Now, I am not interested for the time being, for sure, in having
23 a copy of that CD-ROM, but I would like to have at least a list of the
24 documents -- a list and a description of the documents that have been
25 disclosed on that CD-ROM, and in what language they have been disclosed,
1 so that we can then proceed, et cetera.
2 I would appreciate also, if you have interest in responding to
3 any of those two motions, to expedite your reply, if possible by Tuesday
4 or Wednesday of next week.
5 MR. MacFARLANE: That's fine, Your Honour.
6 JUDGE AGIUS: Okay, thank you.
7 And this list, if you could provide us with the list that I have
8 just mentioned at your earliest, I would appreciate that, because these
9 two motions need to be decided as soon as possible.
10 MR. MacFARLANE: Certainly, Your Honour. There's a possibility
11 we might be able to arrange for that later this afternoon. But failing
12 that, certainly on Monday.
13 JUDGE AGIUS: All right, thank you.
14 Now, again, matters of scheduling. The Chamber recalls that both
15 Mr. Bourdon and Mr. MacFarlane informed me, when we met in October, that
16 they were available -- they are available for trial during the month of
17 January of 2009. I would like to have a confirmation from you again of
18 your availability during that month, and needless to point out that
19 ultimately it's the Trial Chamber that will decide the dates. And since
20 you are public officers for the purpose of this Tribunal, your
21 obligations towards this Tribunal take priority over everything else.
22 But we're talking of January.
23 So I'll start with you, Mr. MacFarlane.
24 MR. MacFARLANE: I made special arrangements to be available all
25 January, and I am available all of January, Your Honour.
1 JUDGE AGIUS: All right, thank you.
2 Mr. Bourdon.
3 MR. BOURDON: [Interpretation] I don't have the transcript in
4 front of me, the transcript of the hearing held a few weeks ago regarding
5 possible dates that was in the first term of 2009, so in the first three
6 months. I told you then that I would look into the matter to see what my
7 professional constraints would be then. I do not claim to be the busiest
8 lawyer in the world, Your Honour, but I do have heavy constraints, me,
9 too. And I received a note saying the constraints of the Tribunal should
10 have priority above all other commitments. For instance, in Paris I to
11 have to be conciliatory, I know, and I do endeavour to be trying and
12 endeavouring to accommodate you as much as I can, but I really am busy in
13 January. I have several trials. One, for instance, or two before the
14 court offices. I was appointed by the Paris municipality to a case of
15 fraud in election matters.
16 I'm really busy. I'm really willing to do as much as I can to
17 accommodate you, but it is difficult, it is really tough in January. I
18 don't know how Mr. MacFarlane is available, how much availability he has.
19 Maybe he is more available than I am, but it's really hard, and I would
20 really prefer to start as of the third or fourth week in February.
21 JUDGE AGIUS: Last time -- usually my memory doesn't fail me,
22 Mr. Bourdon, but last time you said January will be fine, it's February
23 that you had a big problem with because you had a big case coming up in
25 I have to consult with my colleagues on this, because we, too,
1 have a schedule that we have to honour, and we'll give you the dates of
2 the trial, communicate to you the dates of the trial, very shortly.
3 Because of the uncertainty, as such, of the date of the trial,
4 and other matters following your recent filings, I am not in a position
5 today to fix specific deadlines for the filing of the Prosecution and
6 Defence pre-trial briefs, but I expect myself to be in a position to do
7 so in the course of the coming week. So be on the lookout, because in
8 the course of next week, you will receive details as to the deadlines for
9 the filing of the Prosecution and Defence pre-trial briefs.
10 In trying to prepare better for the trial, and this would, in
11 turn, also provide you with a better opportunity to plan, yourselves, I
12 would like to know whether, at this which I concede to be an early stage
13 of the proceedings, you are in a position to give an indication of the
14 approximate duration of your respective cases.
15 In particular, in your case it should be pretty easy to -- yes,
16 Mr. MacFarlane.
17 MR. MacFARLANE: Thank you, Your Honour.
18 In terms of the evidence, itself, I'm excluding motions and
19 excluding Defence -- any Defence evidence that might be led, but in terms
20 of actual evidence to be tendered by the Prosecution, I believe it can be
21 done within a day, possibly a day and a half, as much as two days, but I
22 would expect it would be done in a day.
23 JUDGE AGIUS: All right, thank you.
24 Incidentally, once you've mentioned motions, I can tell you
25 beforehand, since we have never worked together in the past, that it's
1 not my practice to utilise courtroom time to discuss motions. Motions
2 are filed, they are responded to, and they are decided. Unless it is
3 absolutely useful, no court time will be dedicated for the discussion of
5 Yes, Mr. Bourdon, the same question to you. Do you think you are
6 in a position today to give us a rough estimate of how much time you will
7 require for your case? I'm not -- I'm just referring to testimony
9 MR. BOURDON: [Interpretation] Allow me to say, in passing, that
10 in order to make your work easier, I will file a motion to specify when I
12 really arrive at a date that would be the best for all. So I'll tell you
14 As far as I am concerned, I would need basically about the same
15 time as the time suggested by Mr. MacFarlane. That would be a day.
16 JUDGE AGIUS: Thank you.
17 And when you said "a day, day and a half," before I interjected
18 and said, "Evidentiary stage only," did you also have in mind final
19 pleadings or you were excluding those?
20 MR. MacFARLANE: No, I was excluding that. That was purely the
21 testimonial and documentary evidence.
22 JUDGE AGIUS: Okay. I just wanted to make clear. I expected
23 that to be the case, but I just wanted to make clear.
24 All right. So we will hear further from you, then, Mr. Bourdon,
25 the next few days.
1 Prior to adjourning, is there any matter that you would like to
2 raise, Mr. MacFarlane?
3 MR. MacFARLANE: Thank you, Your Honour.
4 No, although I would like it noted for the record that my
5 assistant, Lori Ann Wanlin, is with me this afternoon.
6 JUDGE AGIUS: All right, thank you.
7 And, Mr. Bourdon, is there any other matter that you would like
8 to raise at this stage?
9 MR. BOURDON: [Interpretation] Yes, please. Two things, very
11 I'm now taking steps to echo what Mr. MacFarlane, to have an
12 assistant who will help me, he's a professor, a French professor in
13 international law.
14 One thing, very briefly. I'm not as familiar as others may be
15 with the practices in this Tribunal, but I have sought information and I
16 will do my level best to assist this Tribunal. You are very aware of it,
17 of course.
18 However, today, how shall I say, Ms. Florence Hartmann and myself
19 have some ideas as to the conditions in which she can exercise her
20 rights. That was the purpose of the motions I filed.
21 I can confirm formally that I have received the CD-ROM that
22 Mr. MacFarlane was kind enough to disclose, but it's not in French, the
23 documents are not in French. And very honestly, I may be very naive, I
24 was expecting the documents to be disclosed in French. French is one of
25 the two official languages of the ICTY. Ms. Hartmann is of French
1 nationality. That's common sense.
2 Therefore -- let me finish to say that I'm very willing to
3 cooperate. Don't get on your high horses. It's not visible. I am in
4 the dark because we don't know when we're going to get the documents in
6 JUDGE AGIUS: Mr. Bourdon, you will get the position of the
7 Tribunal in regards to your motions when we decide them. In the
8 meantime, I just stated barely two, three minutes ago that the court time
9 is not for the discussion of motions, and this is not something that you
10 have raised, and it's something that the Trial Chamber will not have
11 difficulty in deciding one way or another.
12 Anything else? None.
13 Okay. So, let me see if I have anything else.
14 Yes. Ms. Hartmann, you yourself, in case you would like to
15 raise -- Ms. Hartmann, is there any other matter that hasn't been raised
16 that you would like to raise at this stage before we adjourn?
17 THE ACCUSED: [Interpretation] Yes, Your Honour.
18 I believe that the documents disclosed by Mr. MacFarlane are not
19 sufficient, do not cover the entire case file. In one part, a reference
20 is made to testimony that was not at all disclosed, and I would like my
21 lawyer to explain that more fully.
22 JUDGE AGIUS: This is the subject matter of the first of the two
23 motions that were filed yesterday. We're talking of those three
24 documents that were itemised or something else?
25 Yes, and then Mr. Bourdon, or Ms. Hartmann, I mean, whichever.
1 MR. BOURDON: [Interpretation] Yes, Your Honour.
2 In a spirit of cooperation with the Tribunal, I wanted to raise
3 this matter, but you interrupted me.
4 But I wanted to say that we are going to file a new motion for
5 very simple reasons.
6 In the report produced by Mr. MacFarlane, mention is made of
7 various statements, interviews, and reference is made to summaries of
8 these interviews, to quotes taken out of these statements, and we believe
9 that it -- of course it would be up to the Chamber to decide, but we
10 believe that in order for us to be able to defend ourselves properly, we
11 need to be fully notified and without any reservations of the full
12 content of the interviews conducted by Mr. MacFarlane.
13 I wanted to make sure that the Tribunal is very well aware of the
14 position of Ms. Hartmann, and I wanted to tell you that we find the
15 disclosure, as it is now, not sufficient. We believe that
16 Mr. MacFarlane's is not complete, is not the full document, and this is,
17 without saying, that we also believe that Mr. MacFarlane's report is
18 empty. But we'll come back to that later.
19 JUDGE AGIUS: I understand you will be filing a motion. Be as
20 specific as you can, please, so that we'll know exactly what documents
21 you are referring to.
22 Yes, Mr. MacFarlane.
23 MR. MacFARLANE: This is the first time that I've heard that yet
24 another motion will be filed. I won't be in a position to respond fully
25 until I receive all the motions.
1 JUDGE AGIUS: All right, thank you. But don't be surprised,
2 because in all cases here we get a deluge of motions on a daily basis. I
3 basically decide an average of two or three a day orally and another one
4 or two a day in writing. So it's no surprise, but be prepared for it,
5 both ways, both ways. This is a small case, compared to the other cases.
6 Anyway, there is no other business to transact, it seems. We
7 stand adjourned, and next time we meet will be either for the trial
8 itself or for the pre-trial conference, if there is a need for one.
9 Thank you.
10 --- Whereupon the further appearance concluded
11 At 2.49 p.m.