1 Thursday, 12 July 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 JUDGE AGIUS: Good morning and good day to everyone. Madam
6 Registrar if you could call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: All the accused are here. Defence teams, I only
10 notice the absence of Mr. Ostojic. Prosecution I see Mr. McCloskey and
11 Mr. Nicholls.
12 So Ms. Nikolic, can you report progress on the Rule 68 motion?
13 MS. NIKOLIC: [Interpretation] Yes, Your Honour. The material we
14 expected yesterday has not arrived yet. I've just talked to Mr. Nicholls,
15 and he told me that the disclosure of these documents could be expected by
16 the end of the day today. I hope that will happen. Thank you.
17 MR. NICHOLLS: It will be before that, Your Honour.
18 JUDGE AGIUS: Okay. Because we had that statement yesterday. We
19 had that statement the day before. Let's close, let's finish this
20 symphony, please.
21 MR. NICHOLLS: It's done, Your Honours. There are four documents
22 similar to the ones that have been disclosed before. I'm told the labels
23 are being put on the CDs right now.
24 JUDGE AGIUS: And my understanding, if I understood you well,
25 yesterday is that if this is done to your satisfaction then you withdraw
1 the motion, Ms. Nikolic?
2 MS. NIKOLIC: [Interpretation] Yes, Your Honour. In that case we
3 will withdraw our motion and continue to do the investigation. We also
4 detected some problems with translation yesterday, but I hope they will be
5 resolved too.
6 JUDGE AGIUS: Okay. Later on we will let you know our decision in
7 relation to the same witness, PW-108, but you will get the decision today
8 communicated to you.
9 So yesterday we just started debating the second point that we
10 communicated to you in relation to the admissibility issues on the
11 Borovcanin interview, and the second point is the following, I will repeat
12 it: If the Trial Chamber were to determine that the evidence should have
13 probative value with respect to the other accused, what would be the
14 permissible scope of the submissions on and cross-examination of
15 Witness number 3 - that's Alistair Graham - by the other accused at the
16 stage of the proceedings where admissibility is to be determined.
17 If I remember well, you had very succinctly dealt with this and I
18 think it was determined -- do you wish to say anything? I think Mr.
19 McCloskey had stated something and very briefly, and I'm not quite sure
20 whether he had finished or not.
21 MR. McCLOSKEY: I had pretty much finished, but of course giving
22 someone time to think over it over the evening is always dangerous, but I
23 don't really have much else to say, though I do -- I would request that
24 the-- the Trial Chamber have the opportunity to hear the -- the interview
25 before making the decision about whether or not it would be admissible
1 against the other accused. I think that's what you had in mind, but it's
2 from this question that's a little bit unclear.
3 JUDGE AGIUS: All right. Who from amongst the Defence teams would
4 like to address this issue, the second question? Mr. Zivanovic?
5 MR. ZIVANOVIC: I have nothing.
6 JUDGE AGIUS: All right. But I suppose those who are more
7 directly or indirectly exposed to this might have.
8 Mr. Meek?
9 MR. MEEK: Thank you, Mr. President. In the event that we get to
10 that point, then I believe that all accused should have the right to fully
11 examine and -- Mr. Graham and make any submissions they feel appropriate.
12 Thank you.
13 JUDGE AGIUS: Yes, Ms. Nikolic or Mr. Bourgon.
14 MR. BOURGON: We take the same position, Mr. President. Thank you.
15 JUDGE AGIUS: Mr. Lazarevic or Mr. Stojanovic.
16 MR. LAZAREVIC: Well, Your Honour, it is very ungrateful to speak
17 because it relates to the rights of the other accused. So I will take no
18 position in this respect. I don't think it would be correct from our
19 point to -- to talk about rights of other accused to examine the witness.
20 JUDGE AGIUS: Okay, but we haven't read the statement of course,
21 we're not aware of its contents, but I have come across in my career many
22 statements which have their pluses and their minuses, statements which
23 could damage the accused making them to some extent and also help the case
24 in others. So you may have an interest to have it admitted in the one
25 context and have the interest in having it thrown out, and that's a
1 decision, of course, that you will take. So the submissions by others may
2 become relevant to you too. Unless, of course, you are all for having it
3 thrown out, declared inadmissible, in which case the submissions of others
4 might help you.
5 MR. LAZAREVIC: Your Honours, I do hope that that's the situation
6 with all the Defences here today, all would like this statement to not to
7 be added into evidence.
8 JUDGE AGIUS: All right. Thank you.
9 Madam Fauveau?
10 MS. FAUVEAU: [Interpretation] Mr. President, my position is the
11 same as that of my colleague, Mr. Meek.
12 JUDGE AGIUS: Thank you. Mr. Josse or Mr. Krgovic?
13 MR. JOSSE: Well, I enunciated our position yesterday in this
14 regard, Your Honour. I stand by the submissions I've made. I accept
15 them. What I contended yesterday was taking matters to their logical
16 extreme, but in my submission it really is a black and white situation.
17 If the interview has evidential effect against the co-accused, the
18 co-accused are entitled to challenge it totally and in any proper
19 procedural form.
20 JUDGE AGIUS: Okay. Thank you, Mr. Josse. You have crystallized
21 it probably.
22 Mr. Haynes.
23 MR. HAYNES: Yes, very little to add. The question you ask is
24 what would be the permissible scope, to this extent I do agree with
25 Mr. McCloskey. The permissible scope of the involvement of the co-accused
1 would be to challenge the admissibility of the interview and nothing
2 more. It would not be a general troll through the evidence of Mr. Graham.
3 The one thing I think is absent from your question is that in my
4 submission the other accused would have the right to call evidence on voir
5 dire if they thought there was any that would be relevant. I suppose
6 somebody might want to call Mr. McCloskey, but there it is. But I think
7 the scope of the involvement of the others does include the calling of
8 evidence as well if relevant.
9 JUDGE AGIUS: Okay. Yes, Mr. McCloskey.
10 MR. McCLOSKEY: Just on more of a procedural issue. The way I
11 would see this happening is that if -- if the initial issue is one of
12 voluntariness. This is not something that I would plan on providing any
13 information from the interview itself, the content of the interview. It
14 would be left to issues of voluntariness which are pretty simple, pretty
15 straightforward. They don't involve -- it will be probably five minutes
16 of direct, and if it's very legal in nature, and in that particular case
17 that is mostly a situation for Mr. Borovcanin's counsel. And as I said
18 yesterday, I do not object if there are legal issues related to other
19 accused. If they announce what those legal issues are. They are able to
20 cross-examine on those issues.
21 Now, after if it's found to be voluntary, if we've met our burden
22 and the it's played or it's admitted one way or another, then it will
23 clearly be in a situation where we now have this document. It will affect
24 the rights of the others and then cross-examination becomes a much more
25 wide-open issue for Alistair Graham. And so that's how -- I'm going on my
1 old experience, but that's how I think it would be best worked out,
2 because otherwise if -- if the wide-open questioning begins in the early
3 stage you don't really have the transcript or the interview to deal with
4 unless there's something specific to voluntariness in the transcript,
5 which then it's fine. But that's the -- that's what I would suggest as --
6 as one option on how to do this so that we can get the voluntariness
7 issue, which is very specific, out of the way and then get into the more
8 substantive issues of the interview.
9 JUDGE AGIUS: Does anyone wish to comment on that? All right. I
10 think we can now -- yes, Madam Fauveau. I'm sorry.
11 MS. FAUVEAU: [Interpretation] Mr. President, I'm completely in
12 agreement that it's a very specific situation. However, according to the
13 Rules of Procedure and Evidence, for a piece of evidence to be admissible
14 it must have probative value. The probative value does not depend only on
15 the voluntariness of any acts of the suspect at the time when he gave that
16 interview or his will alone. It depends also on many other things such as
17 the credibility of evidence. I can see the reasoning of the Prosecutor,
18 but I don't think it is completely consistent with the Rules of Procedure
19 and Evidence in this Tribunal. I believe we have -- we ought to have the
20 right to test the credibility of this evidence, of this interview, the
21 veracity of its contents, before it is admitted.
22 JUDGE AGIUS: One moment Mr. McCloskey. Judge Prost.
23 JUDGE PROST: Madam Fauveau, are you suggesting then that prior to
24 admitting the tape we should listen to the entire contents of the tape as
25 a means of determining its probative value?
1 MS. FAUVEAU: [Interpretation] No, Your Honour. I believe that
2 certain questions concerning the veracity of the contents can be
3 determined without listening to the interview.
4 JUDGE AGIUS: Yes, Mr. McCloskey.
5 MR. McCLOSKEY: Should you find that the interview was given
6 freely and voluntary, I have no objection to it merely being marked as an
7 exhibit until it's played and cross-examination is done before you make
8 your decision whether it's admissible into Mr. Borovcanin and that I don't
9 think is any problem. And then as for the issue of whether it's
10 admissible against the other accused, I would hope that everyone would
11 have a chance to brief that more fully.
12 JUDGE AGIUS: Yesterday I think we made this clear in the first
13 part of the debate in which we stated that without prejudice to the issue
14 of redactions to be dealt with in due course for the purpose of this stage
15 both tape and the transcript will be marked for identification. So I
16 think we premised that before -- before anything else.
17 MR. McCLOSKEY: Yes, that's -- that's what I thought, which should
18 mean Ms. Fauveau's argument doesn't -- isn't a problem for her or anyone
20 JUDGE AGIUS: Which doesn't mean to say - I don't want to mislead
21 anyone - it don't mean to say that we will, as soon as these are tendered
22 and marked for identification, that we will jump into reading them if
23 there is no need for us to read them.
24 [Trial Chamber confers]
25 JUDGE AGIUS: We'll tell you what we think, and we are unanimous
1 on that, well nearly, when we come to it, Madam Fauveau.
2 Let's move to the third question. If instead we were to determine
3 that this piece of evidence should have no probative value with reference
4 to the other accused, should passages in the interview itself purporting
5 to contain evidence against the other accused be reacted?
6 Mr. McCloskey.
7 MR. McCLOSKEY: Thank you, Mr. President. Well, the answer to
8 number 3 is no. And as I have divided the interview into three parts, the
9 background, the facts associated with the crimes and acts or conduct of
10 the accused, I believe your question is mostly directed at acts or
11 conducts of the accused. You wouldn't, I don't feel a need to redact one
12 or two.
13 JUDGE AGIUS: I think I would stick to that, but you're the one
14 who addressed the Trial Chamber yesterday and referred to three
15 different -- three different issues. So I think what I would suggest is
16 that you submit to the Trial Chamber what you feel you ought to submit.
17 MR. McCLOSKEY: Thank you, Mr. President. I --
18 JUDGE AGIUS: Because this is a complex area.
19 MR. McCLOSKEY: Yes. I divided it into three areas, as I think
20 we've discussed briefly, as the three different kinds of hearsay, and as
21 we know in 92 bis and our regular hearsay rules don't have a problem
22 really with the first two kinds of -- of hearsay being admitted against an
23 accused. So it's the third kind, the acts or conducts of the accused
24 that -- that is the most serious issue here, and so I would say of course
25 not. You would of course not want to redact the categories one and two.
1 That would make -- well, that would redact the entire interview and make
2 it useless for -- for any purpose. So I think then we need to look at the
3 acts or conducts of the accused that are mentioned in that.
4 Now, I think for this analysis you need to actually fully read and
5 understand those references, but I don't -- for the purposes of today I
6 don't think you do, but I think for the final analysis you would want to.
7 And the reason I say that is because if you found that they were basically
8 valueless or not admissible against -- against anyone else, then as is the
9 foundation of the question, then the question becomes if you redact them,
10 then they're not part of the record.
11 The problem with that is then they become valueless against the
12 man that said them. And as you will look at them, when a person -- if
13 Borovcanin mentions an accused, for example, mentions seeing an accused in
14 a particular place like Potocari, this is something I want you to know
15 when you consider Mr. Borovcanin's case; that he is there in Potocari with
16 another accused. So it does have probative value against Mr. Borovcanin,
17 and so redacting it would be inappropriate.
18 JUDGE KWON: Mr. McCloskey, then pausing there. If the statement
19 says, "I saw X in Potocari," what is to be redacted is just X. So the
20 fact that Mr. Borovcanin was in Potocari would not be redacted.
21 MR. McCLOSKEY: But the fact that he was there with -- with X at a
22 crime scene and X is at that crime scene and they're charged as joint
23 criminal enterprises, it's very relevant, something I want this court to
24 know, just as if it was a drug case, I would want you to know that X was
25 seen at -- at the scene of the drug distribution place with Y. That's a
1 huge point. This -- this is no different than any criminal case. It's --
2 in its foundations, and if we have a crime scene, Potocari, I want you to
3 know who is there and who is recognising each other.
4 As -- there is an issue with a meeting as well, though I'm not
5 sure that's even contested by the person it affects, but I think you would
6 need to know that Mr. Borovcanin is at a meeting with another accused, a
7 meeting where issues were discussed, and it may be a hotly contested area.
8 And these things are redacted for juries, Your Honours. This is a
9 jury issue because the law feels that juries cannot separate their
10 emotions from certain facts, and I don't think that's -- that's not a
11 problem this Tribunal has. I don't think there is a lot of lurking jury
12 evidence out there that the Judges are being emotionally swayed by. I
13 don't think that's a problem you will have. And I don't think you want to
14 have these little time bombs in the case, areas that you can't see or
15 can't refer to in your judgement. That's going to make reviewing this
16 case very difficult. And frankly I don't see anything, I don't think
17 you'll see anything in this evidence that is so potentially prejudicial
18 that it's something that you would have a hard time getting out of your
19 mind. It's really -- as I said, Mr. Borovcanin is not blaming anyone, and
20 it's -- but there are references to people that I know you will give it
21 the weight or no weight, if that's what you feel, and I don't -- I don't
22 think that will be a problem.
23 Redacting doesn't really solve any problem. In fact, it would
24 reduce the days against Mr. Borovcanin.
25 JUDGE AGIUS: I thank you, Mr. McCloskey. Who wishes to -- I'm
1 sorry, Judge Kwon, go ahead.
2 JUDGE KWON: There is a practice in the Tribunal, including this
3 Chamber, isn't there, that when we are admitting the 92 bis statement
4 without cross-examination we redact some parts relating to the acts and
5 conducts of the accused.
6 MR. McCLOSKEY: Yes. We just -- we just did that. As a matter of
7 fact, I think the last witness. But that was something that you decided
8 to do prior to the -- prior to the case, and once we brought those
9 witnesses forward it would have been part of the case. And it's hard for
10 me right now to see the similarity between your decision to redact
11 material prior to the case that we would have to deal with and what we're
12 talking about now, because really to redact the material you would have to
13 fully understand what this material was and absorb it; unless you made the
14 decision, which you could, that any reference to any accused should be
15 deleted. And then you wouldn't -- and then we would give you a redacted
16 format, and that wouldn't be something you've considered, but I think --
17 well, I don't know what you would prefer, but I think normally it would be
18 the Judges that would -- would review this material to see if -- if it
19 needed to be excluded.
20 In common law jurisdictions many cases are tried with Judges alone
21 and even in those jurisdictions the Judge would review the material, and
22 if he felt it was not admissible he would set it aside. But he
23 wouldn't -- I don't think it would be appropriate for you to wholesale
24 redact something because there was a reference to it, though
25 that's perfectly within your discretion, I believe, as well.
1 JUDGE KWON: Thank you.
2 JUDGE AGIUS: Perhaps you can answer this question in relation to
3 the question put by Judge Kwon in your answer. Basically if you are
4 resorting to the Rule 92 bis procedure, wouldn't that be tantamount on
5 your part to renouncing to the parts -- to the evidence that would
6 otherwise emerge from the redacted parts? Especially if there is no
8 MR. McCLOSKEY: As I think we just did with a witness. You had
9 decided to react a document that had one of the accused's name on it, and
10 we did not object or take that any further, and we in fact did not even
11 put that document before the witness, and so yes we went along with
12 that -- that process, but that was -- that was for the purposes of 92 bis,
13 for -- to get moving on with the case to -- for efficiency. We didn't
14 think the document was that important. This witness -- that witness on
15 that document didn't have much to say about it. There are other witnesses
16 that had more to say about it.
17 So yes, in a 92 bis situation we would do that, though I don't
18 want to go back in time, I'm still slightly confused that you would have
19 redacted something at the 92 bis stage but require someone for
21 JUDGE AGIUS: Yes, but that's different.
22 MR. McCLOSKEY: It shouldn't be redacted if the person is going to
23 be here for cross-examination.
24 JUDGE AGIUS: But what I'm suggesting is the following as a
25 proposition to which I'll ask you to reply: When you resort to Rule 92
1 bis, you have no guarantee that the Trial Chamber is going to grant
2 cross-examination. In fact that's one provision where the Trial Chamber
3 is free not to decide not for cross-examination if it doesn't feel there
4 is a need for it. And we have on a consensus precisely done that. But
5 Rule 92 bis precludes you from tendering through the 92 bis process acts
6 which go to the -- parts that go to the acts and conduct of -- of the
7 accused as charged in the indictment.
8 So in that case you would be renouncing to the evidence that that
9 testimony or that testimony would otherwise provide you with.
10 MR. McCLOSKEY: We normally did not present evidence for 92 bis
11 that went to the acts or conducts of the accused knowingly. I think that
12 one situation we feel the document really went to acts or conduct, you
13 disagree with us, so you redacted as was your right. That was a rare
15 But what is really different in this context and what is the
16 problem with redaction, redacting what a witness has to say doesn't really
17 affect any other -- it doesn't affect the witness because the witness is
18 not on trial. But when you redact something that an accused said which in
19 our view implicates him, then you are take away from the Prosecution's
20 case and actually affect the case. Taking away something an engineering
21 operator may have said about a document, it doesn't affect any
22 particular -- an accused because no accused was saying it, and we're free
23 to bring in that other evidence in other ways if need be.
24 JUDGE PROST: Mr. McCloskey, in essence I take it what you're
25 saying is the distinction between a 92 bis statement and the statement at
1 issue here is that in 92 bis you can redact in its entirety in reference
2 to all the accused, whereas here you have the situation where the evidence
3 remains relevant to one accused and not relevant to the remaining accused.
4 If that's our ruling.
5 MR. McCLOSKEY: Well, that's a more succinct way of what I was
6 trying to say.
7 JUDGE PROST: Thank you.
8 MR. McCLOSKEY: Yes, Your Honour.
9 JUDGE KWON: One more question.
10 JUDGE AGIUS: Go ahead, Judge Kwon.
11 JUDGE KWON: I have to concede that I have difficulty in
12 understanding the issue until I actually read the transcript, but I think
13 I can understand your concern as to the redaction of a passage which is
14 related to -- to both accused and to the other co-accused, because if a
15 certain passage is turned out to be a passage solely related to the other
16 accused, having nothing to do with Mr. Borovcanin, then you would not
17 oppose in the redaction?
18 MR. McCLOSKEY: Your Honour, and I agree with you. We could -- I
19 think this discussion of course is much better had with -- with the
20 sentence in front of us, but in proving criminal intent, what is in a
21 person's mind, what comes out of someone's mouth, through their brain, is
22 a crucial piece of evidence for me. So anything that's coming out of
23 Mr. Borovcanin's mind, especially when he mentions another accused, is
24 something that I want you to see because I think it helps you to get into
25 his mind.
1 Now, I don't have any smoking guns in this regard. We're not --
2 you know, he's -- I don't want to give you the impression that he's saying
3 something that will solve the issues of the case, but when Mr. Borovcanin
4 identifies an accused at a particular place, then we know that he knows
5 he's with that person or at least in the same place, and that has some
6 value. That has some probative value and helps us prove an issue, at
7 least that he knows that he is there. You may decide that it's not
8 evidence that the other person is there because you may very well find
9 that the other person is putting on evidence that he's not there. But at
10 least it's evidence that Mr. Borovcanin knows someone is -- is there. And
11 that is -- that I think will be important for you.
12 JUDGE KWON: Thank you. Let us leave it there, and I will hear
13 from the Defence.
14 JUDGE AGIUS: Thank you, Judge Kwon.
15 Thank you, Mr. McCloskey.
16 Who wishes to address the Chamber on this question?
17 Mr. Zivanovic?
18 MR. ZIVANOVIC: Thank you, Your Honour. I have nothing but to
19 repeat my position from yesterday, because our position is that no -- no
20 parts of interview could be introduced and are admissible if co-accused
21 has no opportunity to cross-examine the witness. It is our position, and
22 if Mr. Borovcanin decides not to testify in this trial, this part of
23 transcripts -- of his interviews should be redacted.
24 Thank you.
25 JUDGE AGIUS: Thank you, Mr. Zivanovic.
1 Mr. Meek.
2 MR. MEEK: Thank you, Mr. President, Your Honours. Of course my
3 position is obviously should the Trial Chamber take the position that
4 there is no probative value to any other accused, of course it should be
5 redacted. Mr. McCloskey, in stating that well, no it shouldn't be, is
6 just trying to boot-strap that in or bring it in the back door. I think
7 it -- I find it very interesting that Mr. McCloskey states on at page 5,
8 line 23, that if this tape is played or transcript is admitted, it will
9 affect the rights of the others. He goes on at page 10 to state that --
10 in answer to a question by Judge Kwon, I believe, that "frankly I don't
11 think you'll see anything in this evidence that is so potentially
12 prejudicial that it's that you will have a hard time putting out of your
13 mind." Well, first he says it will affect the rights of the accused, and
14 then he says, if it comes in, it's really not prejudicial. Well, Frankly
15 if it's really not prejudicial in his mind, why would he object to the
17 And I think it's especially in this case concerning the
18 Srebrenica tape, which also may be in issue but it's been played and
19 played and played in this courtroom, if Mr. McCloskey says, well, in
20 answer to Judge Kwon's question again, if Mr. Borovcanin hypothetically
21 said that "I saw X at Potocari." Well, then Mr. McCloskey wants you all
22 to believe that this has some probative value to show that Mr. Borovcanin
23 was in Potocari. Well, I think we've seen a tape, have we not, of
24 Mr. Borovcanin in Potocari.
25 It should be redacted, otherwise it's an exercise in futility.
1 Thank you.
2 JUDGE KWON: Mr. Meek, I have a question to you. If we are
3 redacting some parts at all then who should decide to redact and how? If
4 there's a disagreement among the parties, they should have a look at the
5 transcript and look. What would you say to this?
6 MR. MEEK: That's a very good question, Your Honour. I believe,
7 should you make that decision, I believe that it would be a very simple
8 proposition and exercise for Mr. McCloskey and the Defence counsel for the
9 other accused to be able to agree on the redactions. And just to give you
10 an idea: If you all rule correctly and you find that there is no
11 probative value and there should be redactions, and I can even whittle
12 this down further, in this transcript I would be requesting -- and again
13 it can be whittled down quite a bit, a lot, actually, only 48 lines out of
14 approximately 6.300 lines. Now -- and that's lines, Judge Kwon. That's
15 not as you suggested earlier just a name. So if you want to just take a
16 name out, for example, it would be a lot less than that.
17 Now, 43 -- hypothetically 48 lines out of approximately 6.300 will
18 not change the substance of -- otherwise change the substance of what
19 Mr. Borovcanin said if you allow and find that was an admissible voluntary
20 statement and should go into evidence against him.
21 JUDGE AGIUS: You seem to be agreeing now with the part of
22 Mr. McCloskey's statement that you contested a couple of minutes ago.
23 MR. MEEK: Which part would that be, Your Honour?
24 JUDGE AGIUS: The second part.
25 MR. MEEK: The second part of his statement?
1 JUDGE AGIUS: Yes, the second part of his statement. You -- from
2 page 10, I think.
3 MR. MEEK: Oh, from page 10?
4 JUDGE AGIUS: Yes. You --
5 MR. MEEK: No, I don't --
6 JUDGE AGIUS: You suggested that Mr. McCloskey was sort of
7 contradicting himself, for saying that it would have importance for all
8 the accused, and then you suggested that --
9 MR. MEEK: No, I just pointed out.
10 JUDGE AGIUS: [Overlapping speakers]
11 MR. MEEK: Your Honour, I don't agree with that at all. I'm
12 pointing that he's on both sides of the fence. First he tells you the one
13 thing, that oh, you know, and he says it's not so prejudicial. Why he
14 would care? That's the Prosecution state of mind. I'm telling you
15 perhaps it might not be prejudicial, but still I have a right and a duty
16 to represent my client and make sure he has a fair trial.
17 JUDGE AGIUS: That's not being contested.
18 MR. MEEK: Without going into fair trial, et cetera, and no, don't
19 agree with that, and I'm just pointing out that that's what he stated.
20 JUDGE AGIUS: All right. Let's proceed. No one is contesting
21 that this is important for you.
22 JUDGE PROST: Mr. Meek, can you explain to me why you feel it --
23 why do you feel it's necessary for those redactions to be made? Is it
24 your position that the Trial Chamber is not able to separate the evidence
25 in terms of its relevance to Mr. Borovcanin and its relevance to the other
1 accused should we rule that it's not of probative value to the other
2 accused? Is it your evidence that we're not able to do that separation
3 process and that's the need for the redactions?
4 MR. MEEK: My position is if there is no probative value and it's
5 not going to be used towards the other accused, whether you can put it out
6 of your minds or not, why even have it in front of you?
7 JUDGE AGIUS: That begs the question that Mr. McCloskey referred
8 to and which you haven't answered; namely, that Mr. McCloskey told you
9 granted for argument's sake that certain excerpts which go to the acts and
10 conducts of the other accused are not to be made use of vis-a-vis the
11 other co-accused. Still in those excerpts, in those parts, there is
12 information or there could be information or facts which are relevant for
13 the person, for the accused, who made that statement.
14 And you haven't actually dealt with that except that you said
15 here, but we're talking of his presence in -- alleged presence in Potocari
16 you have other evidence. But you can't argue the point by means of one
17 isolated example or instance.
18 MR. MEEK: Okay. That --
19 JUDGE AGIUS: I think what you need to argue is whether there is
20 any validity or not in the argument or in the submission made by
21 Mr. McCloskey, namely, that granted that those parts will not have any
22 probative value vis-a-vis the other co-accused. Why should I be deprived
23 from making use of what is contained in those parts for my case against
24 the accused who made that statement? All right?
25 MR. MEEK: Okay. Well, Your Honour, and I have had a chance to
1 review and read this interview, and in my opinion, in my submission as an
2 officer of the court, anything that I would ask to be redacted should you
3 make a ruling that it's not probative to other accused, I submit, Your
4 Honour, would have no affect on the Prosecution's case against
5 Mr. Borovcanin, period. That's what I'm trying to tell you. I mean,
6 that's what I believe.
7 JUDGE AGIUS: All right. Okay.
8 JUDGE KWON: And I'm not sure whether you answered to my question
9 in full. As for those 48 lines you referred to, if Mr. McCloskey would
10 not agree with you, then we Judges should read those parts.
11 MR. MEEK: Yes, Your Honour.
12 JUDGE KWON: You're opposed to that.
13 MR. MEEK: I would have to agree with you. If we came to an
14 impasse on certain redactions after a line or a sentence or a word or two
15 words, then, yeah, I believe that would have to go to the Chamber, but
16 that's a bridge I don't think we have to cross at this point.
17 JUDGE AGIUS: But Judge Kwon is a hundred per cent right. Already
18 there is an impasse. So -- so you need to answer the question.
19 JUDGE KWON: My next question is that being the case, Judge --
20 with Judges having read those passages already, what's the point of
21 redacting that part later on?
22 MR. MEEK: Well, Judge Kwon, in answer to your question, you're
23 absolutely right. You're absolutely right. If that's what's going to
24 happen, then why are here arguing this right now? It's an exercise in
25 futility. And we had another issue with a long document, and it took us
1 some time, but we did get the redactions completed and it got admitted,
2 and it didn't entail having it to bring it to the Trial Chamber.
3 JUDGE AGIUS: Yes. Do you wish to intervene?
4 MR. McCLOSKEY: I think you're speaking of Eileen Gilleece's
5 statement. I'm not sure we're there yet. We're getting closer and we're
6 doing the process you're describing, but we may be at an impasse on that
7 one as well, but we have entered into this process before. We understand
8 the Court has done similar things. So -- but I think we're definitely at
9 an impasse with this statement.
10 JUDGE AGIUS: There is -- there is another problem. Mr. Meek is
11 fast on the draw. So let's proceed.
12 Mr. Meek, I don't think you can assume that there will be an
13 agreement in whole or in part about possible redactions. I think you for
14 the time being, in trying to answer the very pertinent questions that were
15 put to you by Judge Kwon, you have to assume exactly the contrary, the
16 opposite, in other words that there will be what you called an impasse,
17 which would be the position you have reached now, already.
18 MR. MEEK: Well, Your Honour, that's where I disagree with you.
19 If you want to take the position and a state of mind that yes there will
20 be an impasse, because Mr. McCloskey says, oh, yes, there will be an
21 impasse, I don't believe that and I'll tell you why. Because
22 Mr. McCloskey has always dealt with us, I believe in an honest fashion and
23 aboveboard. If an order comes from [indiscernible] that there should be
24 redactions, I believe in good faith that he will not take the position and
25 nothing is going to be redacted and we can't agree on this word or those
1 words. That's just what I believe, Judge.
2 So, yes, if you all want to take the position that, yes there
3 will be an impasse, yes we're going to have to look at it anyway, then you
4 can take that position. The glass is either half full or half empty.
5 Well, I believe we can work it out if you make that ruling. If you make
6 the ruling and we can't work it out, then yes someone's going to have to
7 look at it for the Trial Chamber but why presume that now.
8 JUDGE KWON: If you could watch out with your sleeves.
9 MR. MEEK: It's just as easy, Your Honours, to presume that should
10 you issue an order that the Prosecution will act in good fate. And that's
11 my submission. Now, if you want to take the position that - and this is
12 pure speculation that if you make such an order - that they're not going
13 to agree with us on every little thing and it's going to have to come back
14 to you, then I guess you could say, okay forget it. We're just going to
15 look at it, but that's up to you.
16 I believe if you enter and reach that we can -- we can reach an
18 JUDGE AGIUS: Okay. Thank you, Mr. Meek.
19 Ms. Nikolic or Mr. Bourgon. Mr. Bourgon.
20 MR. BOURGON: Good morning, Mr. President. Good morning, Your
22 As you well know it has been since the beginning of trial a
23 sensitive issue as to whether we should allow the Judges to see some
24 material or not to see some material. I believe that in this case we have
25 the two options. Either we proceed with no redactions --
1 JUDGE AGIUS: Stop, stop. I object to you using -- maybe you
2 didn't use these words intentionally, but the idea whether we should allow
3 the Judges to see. You have -- it has never been and it will never be a
4 question of you -- either of the two sides allowing the Judges to see.
5 That's for us to decide, not for you to allow us to -- to see or not.
6 Okay. Let's make that clear.
7 Any time -- any time we can surprise you and tell you from now on
8 we're going to see all documents, all previous statements of witnesses,
9 all -- everything, and it is within our rights to do that. And it's not
10 within your rights to allow us not to do that. So let's make that clear.
11 MR. BOURGON: Maybe my English is not good enough. Maybe I should
12 be speaking French, because when I say should allow, I do not mean in any
13 way, respectfully put, that we are to decide anything in this courtroom,
14 and if I ever referred this way, and if you ever had the impression that
15 referring that we could decide on something, well, then I apologise,
17 JUDGE AGIUS: Okay. Go ahead, Mr. Bourgon. The important thing
18 is -- because this is the second time we have had to draw your attention.
19 This is the second time that we had to draw your attention, when I say
20 yours, it's not necessarily you as Mr. Bourgon, because it has been stated
21 by others as well but it's the second occasion that we've had to make this
23 This is something that we have decided at the beginning of the
24 case to adopt as a practice. It's not a rule that we have imposed upon
25 ourselves with -- without -- without any option to go back on it. So I --
1 but I do appreciate that it was a -- maybe a slip of the tongue, slip --
2 language. So let's proceed.
3 MR. BOURGON: Thank you, Judge. Thank you, Mr. President. The
4 issue is twofold, either we proceed with redactions or we proceed without
5 redactions and the ruling of the Trial Chamber I assume would be
6 accompanied by what exactly is meant to be done with the portions that are
7 relevant to both Mr. Borovcanin and some other accused. As a preliminary
8 matter, I must say that this issue does not concern my client and I am
9 speaking simply on the matter of principle.
10 I believe that what is important, Mr. President, is what exactly
11 will accompany the ruling from the Trial Chamber. What position will the
12 Trial Chamber take with respect to an issue or part of the statement of
13 Mr. Borovcanin that also affects another accused? And if that ruling is
14 precise and we know exactly what the Trial Chamber will do, then I guess
15 we can proceed without redactions. However, it is my view that it is much
16 safer to proceed with redactions.
17 Thank you, Mr. President.
18 JUDGE AGIUS: Yes. Thank you, Mr. Bourgon, but why would it be
19 much safer.
20 MR. BOURGON: It is much safer because in the end when we have a
21 judgement once this case is over and then there is a doubt in the mind of
22 any of the accused representing -- any of the counsel representing any of
23 the accused that what the use that has been made of Mr. Borovcanin's
24 statement is not in accordance with what should have been done, then
25 there's a possibility that this might be a ground of appeal.
1 If we have redactions that were made out of consent between the
2 Prosecution and the Defence, in such a case we know exactly what has been
3 considered and what has not been considered. So it's just a matter of
4 being much safer. But that can be overcome, Mr. President, by clear
5 guidance from the Trial Chamber as what is the use of a statement that
6 affects that effects both Mr. Borovcanin and another accused. And the
7 example that was used, Mr. Borovcanin saw X in Potocari, I think it's a
8 benign example, but it's also a good example. Because if it is left
9 unredacted for the purposes explained by Mr. McCloskey that the Trial
10 Chamber knows that he had this in his mind, that he saw another accused,
11 or if we just redact the name of the accused, then what will be the value
12 of this exact statement for another accused? That's the important part.
13 JUDGE AGIUS: Okay.
14 MR. BOURGON: And at that can be made clear by the Trial Chamber,
15 and then in this sense we would proceed with no redactions. And again,
16 Mr. President, if I ever gave you the impression --
17 JUDGE AGIUS: It's okay forget that.
18 MR. BOURGON: That's important for me, Mr. President, because
19 that's a number of times that I believe that I'm being taken aside, that
20 I'm being pointed out by the Trial Chamber for statements that I make in
21 this Trial Chamber, I respectfully say that it is not my intention, it has
22 never been my intention, and I believe there's only one Bench in this
23 courtroom, and you make all the decisions.
24 That being said, if you think I say something wrong, and if you
25 want to take me out of this courtroom, then do so. Thank you,
1 Mr. President.
2 JUDGE AGIUS: Thank you, Mr. Bourgon.
3 Mr. Lazarevic.
4 MR. LAZAREVIC: Well, again, Your Honours, I don't believe that
5 this is something that we shall interfere with because it relates strictly
6 to other Defences and the situation in which other Defences are affected
7 by some parts of Mr. Borovcanin and the admissibility. Whether it should
8 be redacted or not, I leave it to my colleagues. But I may suggest they
9 try to get find an agreement with the Prosecution. Once they see both
10 sides, the Prosecution and the Defences, what is the extent of such
11 proposed redactions maybe the answer to your question will -- will be
12 dealt with without any further comments on this.
13 JUDGE AGIUS: Yeah, but Mr. Lazarevic, I beg to differ on the
14 first part of your statement. The suggestion that the Prosecution made in
15 the first place was assuming for argument's sake after that the Trial
16 Chamber has decided that the relevant parts involving or relating to other
17 co-accused will not carry any probative value or will not be used
18 vis-a-vis those other co-accused, the Prosecution is telling you, still I
19 don't want them redacted, because in them there is evidence that goes to
20 either the frame of mind of your client or the participation of your
21 client, and reference was made to joint criminal enterprise in particular.
22 So I disagree with you that this is a matter -- redaction is a
23 matter that concerns your colleagues or the respective clients of your
24 colleagues and not your own client. It does concern your client. What
25 the Prosecution is precisely claiming is no redactions, please, because
1 those are important for my case against Borovcanin.
2 MR. LAZAREVIC: Well, yes, Your Honour. In this way it is put in
3 another way that maybe I didn't understand properly.
4 I was listening very carefully to what Mr. McCloskey said, and
5 basically from the very beginning it was the only position that we have
6 that not any part of the interview should be entered into. And so now we
7 are we are talking about the separate issue, whether some redactions are
8 needed, but in a situation that the Trial Chamber decides that no part of
9 the interview will have effect toward other clients. So then I'm going
10 back to the first issue.
11 Whatever the Trial Chamber decision is on this it basically
12 affects -- both situation affects Mr. Borovcanin, and if the Trial Chamber
13 decides not to deal with the interview at all, not to admit it into
14 interview [sic], then we will have no such discussion. If the Trial
15 Chamber decides that the redactions are needed then I will -- I will turn
16 back to my -- to the initial proposal that I just said. It should be
17 meted out between these two parties.
18 Of course, whatever Mr. Borovcanin has said in interview regarding
19 some, some incidents, some situation that appeal, I don't want to go into
20 substance of his interview, is of course related to him. But of course in
21 such a situation, being part of -- well, I'm not suggesting that he was
22 part of any joint criminal enterprise, but he's charged as, the Defence of
23 Mr. Borovcanin would only benefit if certain parts of the interview would
24 be redacted. So this is our position.
25 JUDGE AGIUS: Exactly. The point made by the Prosecution and we
1 understood by everyone is if there is a total redaction of these parts
2 that would be beneficial to all involved accused and co-accused, but the
3 benefit that your client would derive from is -- would be unduly derived.
4 This is basically what has been submitted. So I take it that you are also
5 pretty much in favour of redactions as the previous speakers.
6 MR. LAZAREVIC: Absolutely, Your Honours.
7 JUDGE AGIUS: Okay. Madam -- yes, Mr. McCloskey. Sorry.
8 MR. McCLOSKEY: I'm sorry I'll wait my turn. Excuse me.
9 JUDGE AGIUS: Okay. Madam Fauveau.
10 MS. FAUVEAU: [Interpretation] Mr. President, it's certainly
11 because of my continental law culture that I'm used to professional
12 Judges, and I'm not used to redactions. However, I must admit that in
13 this particular case it don't concern my client because his name doesn't
14 appear in the interview. Otherwise, my position would have been different
15 if my client's name had been mentioned.
16 What I would like to say now is the following: If we listened to
17 what Mr. McCloskey said carefully, I think he has just answered a question
18 put yesterday: Why is this particular hearsay different from other forms
19 of hearsay, because he made a very important distinction between this
20 interview and the statements that were admitted into this process under 92
22 And as far as redaction are concerned, I would also add -- I'll
23 repeat once again that I certainly don't have any problem having certain
24 parts redacted, but it's true that the Chamber adopted this practice of
25 redaction in statements that were admitted under 92 bis. And I'm also
1 aware of the fact that the Chamber in this case had access to those
2 statements. So I have no solution to this particular issue.
3 JUDGE AGIUS: Thank you, madam.
4 Mr. Josse.
5 MR. JOSSE: Your Honour, in our submission the answer to the
6 question is no. However, I repeat what's been said by a number of my
7 predecessors; namely, it isn't really a question that affects my client
8 greatly if at all, and therefore it's easy for me to say no. I am aware
9 that others regard the matter with more sensitivity. That's
10 understandable, and I don't want to tread on their toes unduly.
11 However, where I disagree radically with my learned friend
12 Mr. McCloskey is in his categorisation because again in my submission the
13 matter needs to be dealt with logically. And if category 3 is or might be
14 redacted, we submit there is no logical or legal reason why categories 1
15 and 2 of his definition should also not be redacted. Of course I then
16 recognise that the logical result of that is there will be virtually
17 nothing left of Mr. Borovcanin's interview.
18 However, I do submit that if the Trial Chamber is going to
19 contemplate redacting category 3, then it should also redact categories 1
20 and 2 which do have some effect against my client, hence the reason
21 Mr. McCloskey has been arguing as strongly as he has that the interview is
22 admissible as against my client and indeed all the other defendants in the
23 dock in this particular case.
24 Your Honour, it's also easy for me to say, but realistically this
25 is a trial being conducted by a Judge alone. You and your colleagues wear
1 two hats. One is of Judges of the fact. The other is the Judges of the
2 law. The fact is on occasions you have to see material which you might
3 then need to put out of your mine. On behalf of General Gvero, we accept
4 and understand that.
5 JUDGE AGIUS: I thank you so much, Mr. Josse.
6 One moment. Have you decide -- have you changed your mind? Don't
7 you want to wait for your turn now, Mr. McCloskey? There's still
8 Mr. Haynes.
9 MR. McCLOSKEY: I don't know how I forgot Mr. Haynes. Excuse me.
10 MR. HAYNES: Flattery. Flattery.
11 JUDGE AGIUS: Go ahead, Mr. Haynes.
12 MR. HAYNES: I don't want to be repetitive, but perhaps I might
13 pick up on a point that Mr. Meek began to make until he realised he was in
14 error, and that is the question of the as-yet unresolved aide-memoire of
15 Eileen Gilleece.
16 It's perhaps worth bearing in mind that in relation to that piece
17 of evidence which is, I suppose, an interview of my client, the
18 Prosecution have already conceded that portions that affect other accused
19 in this trial ought to be redacted, and so I repeat a question which
20 Mr. Josse has already put to Mr. McCloskey, what has changed now? Why is
21 it that what Mr. Pandurevic might have to say about other accused ought to
22 be redacted from the Eileen Gilleece aide-memoire, yet what Mr. Borovcanin
23 has to say about other accused is not to be redacted from the transcript
24 of his interview.
25 I'll repeat another point that's been made, and I hope just to
1 make it more clearly. The question of the redactions of Mr. Borovcanin's
2 interview are a storm in a teacup. I don't want any redactions from his
3 interview, and I don't believe many more than one accused here wants
4 redactions from his interview. Both the Prosecution and the lawyers for
5 that accused know what those passages are. I think they've already been
6 notified. And the suggestion that there might be some impasse reached,
7 although a possibility we have to face is in reality not likely to arise.
8 If it does arise, of course we will have to ask your help. You
9 are the Judges of the law in this case, and you would have to resolve the
10 issue. You're the only place we can come to. But even in the event we
11 have to do that, there should still be redactions. Why? Because the law
12 has to -- I'm sorry, justice has to appear to be done. We know you can
13 put it out of your mind, but the public don't. The accused don't. The
14 accused who might go to separate lawyers and seek an appeal against your
15 verdict don't know that.
16 If you decide that assertions by Mr. Borovcanin about the
17 involvement of other accused are not probative against them. It makes no
18 sense to keep that written record on the record of this trial. For
19 appearance's sake should you redact it. Those are my submissions.
20 JUDGE AGIUS: Thank you, Mr. Haynes. Now you have your say,
21 Mr. McCloskey.
22 MR. McCLOSKEY: Thank you, Mr. President. As you are aware, and
23 we of course did involve you and alert you to the Eileen Gilleece
24 situation. That is an ongoing effort of the parties to agree to
25 something, and if we can't agree, we may be in taking the position that
1 we're taking now, that it all comes in.
2 It's -- there's fundamentally different things that are said in
3 that interview and of a much different nature than the things that are
4 said by Mr. Borovcanin and that is something that we were cognisant of,
5 and that's why we're discussing that with the Defence. It was also not a
6 taped interview, as you know. So we'll see how that goes and we'll inform
7 you, of course.
8 I agree with Mr. Josse that you should be reviewing this material
9 before any redactions are made or even suggested. That's crucial on a --
10 on one very practical level. For example, if Borovcanin said something
11 like someone was at Potocari, and you told us without looking at that to
12 delete who he mentioned, and if another lawyer got up and said, "That
13 doesn't affect my client," then you would be left one of -- which accused
14 may it have mentioned, and that could be a problem to the accused that was
15 not mentioned in Potocari. So you're getting in this -- and I know you're
16 not going to do guessing games, but the evidence that is mentioned that
17 goes to the acts or conduct of the accused is largely corroborated by
18 other evidence and will not, by accident, if you review it, suggest
19 somebody else was at Potocari that we don't have evidence that it was. So
20 it's really important if you review this material.
21 If you decide you need to redact it that's within your discretion
22 obviously, but I don't think there's anything in there that requires the
23 public not to see it or in fact I think it may be the reverse. I think
24 the public should see as much as they can in this trial.
25 And the idea that -- I take it Mr. Josse was developing the common
1 law adversarial system and finding a technical way of throwing out the
2 entire interview, which I obviously object to strongly, but I can put on
3 my adversarial hat and say that we're at a point in this trial where they
4 have waived their right to even make this argument because that's an
5 argument you make at joinder, because if at joinder the statement gets
6 thrown out, then I withdraw joinder and I try Mr. Borovcanin by himself.
7 But once a case is joined without anyone challenging that statement, I
8 have the, in the adversarial system, the right to stand on that and they
9 have waived their right.
10 Now, I am not bringing up the adversarial system which we know is
11 based on trial by combat in all its intricacies to try to exclude this
12 statement or try to include it at this point, I'm not making that
13 argument, I don't think those arguments should be made and they are not
14 arguments appropriate at this level.
15 But in any event, enough said. Thank you very much.
16 JUDGE AGIUS: I thank you.
17 Judge Kwon.
18 JUDGE KWON: Mr. McCloskey, the fact -- a practical difficulty I
19 anticipate if we are not to redact any part related to the other accused
20 is that we have to divide our deliberation or way of thinking with respect
21 to accused. If we are to delete, we are to disregard that part of
22 evidence in relation to all the accused, that's easy. I think we can do
23 that. But although we are professional Judges, but as a human being how
24 can you disregard those parts which is we are going to use in relation to
25 one accused in relation to other accused?
1 MR. McCLOSKEY: I -- I understand that issue, and that's partly
2 why we're in discussions with Mr. Haynes on the interview of Eileen
3 Gilleece, because that is going to be a tricky business in that particular
4 interview, but I'll go back to a phrase from our adversarial law that I
5 was reminded in listening to Mr. Meek and I think it will bring fond
6 memories of him, it probably gets mentioned in every trial I've ever been
7 in, and that is we're offering evidence not for the truth of the matter
8 asserted, but to the state of the mind of the declarant. And this is an
9 instruction that gets given to juries every day and Judges ask them to do
10 it. It can be difficult, because I think it's something that you -- that
11 you can do if you need to.
12 I don't think because of the structure of this system and the
13 admissibility of hearsay that you need to at all. I think it should all
14 go to weight. And so you can give it any consideration you want, and you
15 can decide to give it none if you want and then -- as a Judge I would find
16 it simpler in the end to look at it that way, because then when your
17 judgement's being reviewed no one is going to be able to say, ah they've
18 redacted that, but look in their judgement it appears as if they've
19 considered it, which will be a classic way of challenging any judgement.
20 So, yes, it's a difficult job and I'm happy that -- that it's your
21 job and not mine, but I don't -- I think it's eminently doable in this
22 context and again it's just so important why you need to see this and so
23 we can discuss the various sentences because, I think when we get to that,
24 I think you'll find it a much easier job.
25 JUDGE KWON: My final question -- yes, Mr. --
1 JUDGE AGIUS: Go ahead, Judge Kwon.
2 JUDGE KWON: On this point Mr. Meek if you have anything to say.
3 MR. MEEK: Yes I have one thing to say and I certainly have heard
4 that quite often where I practice, but Mr. McCloskey can't sit here and
5 tell you that if in this interview hypothetically Mr. Borovcanin said, "I
6 was at location X and I saw Joe Blow," that that had anything whatsoever
7 to do with Mr. Borovcanin's state of mind. Thank you.
8 JUDGE KWON: I'll ask later if any. Mr. Josse.
9 MR. JOSSE: In relation to Your Honour Judge Kwon's question, of
10 course there is one huge advantage in trial by Judge from an accused's
11 point of view; namely, at the end of the trial the accused will get
12 reasons as to why he or she has been found guilty or not guilty and that
13 will be dealt with count by count, particular by particular. And that is
14 in my view a huge advantage over a jury trial where all the accused knows,
15 particularly if he's been found guilty, is that he has been found guilty
16 and the jury is aren't giving any reasons for being found guilty.
17 However, that is caveat to that in relation to what my learned
18 friend, Mr. McCloskey, has just said. Namely, it's all very well to say,
19 well, you the professional Judges can sort it out later, so long as at the
20 end of the case the accused are told in terms evidence by evidence,
21 exhibit by exhibit, what weight you have given to each of those exhibits.
22 Well, that of course in this case, like really any case in this
23 Tribunal, would be a mammoth task, a mammoth task because each case has so
24 many exhibits and so many pieces of evidence in it. That for you in the
25 course of a judgement break down what weight you've given to each
1 particular evidence and in particular what weight you've applied it to
2 each of the seven accused is a huge task as I've already said, and if you
3 think and I say this with the greatest of respect, that is a manageable
4 task then what Mr. McCloskey says is fair and fine, but if not, it does
5 have practical implications and it goes back to the issue of the
6 admissibility of this particular interview as against the seven other
8 JUDGE KWON: Thank you, Mr. Josse, but my concern was that whether
9 any part of the evidence which was used against certain accused can have
10 any bearing upon whether -- whether or not to believe other exhibits to be
11 used against the other accused.
12 MR. JOSSE: Well, there is no question, I submit, that you are
13 trying seven men, and in effect there are seven cases here that have been
14 joined for the sake of convenience, and it is by no reasons inconceivable,
15 certainly in the common law system, even with a jury this happens always
16 time, that you may conclude there are certain pieces of evidence which
17 only goes as against one accused, and in the end it is possible that there
18 isn't a coherent jigsaw so far as the seven accused are concerned, because
19 ultimately all you need to say is whether you're satisfied beyond
20 reasonable doubt that a given accused is guilty on a given count. If you
21 are not satisfied, then of course the verdict is not guilty.
22 The point I'm trying to make is is that there may not be a
23 coherent picture in relation to all seven accused. Now, whilst that's a
24 difficult concept, it's a perfectly logical one, and in particular, it's
25 one the accused are not prejudiced by because you are going to have to
1 give reasons.
2 I hope that helps.
3 JUDGE KWON: Thank you. I'm still musing, but can I ask a final
4 question to Mr. McCloskey.
5 JUDGE AGIUS: Go ahead Judge Kwon.
6 JUDGE KWON: You answered to my previous question that if we are
7 to redact some part of the -- Mr. Borovcanin's statement, then we will
8 lose that part which is also related to Mr. Borovcanin. Can we not view
9 that kind of result as a consequence of joinder? By joining the accused
10 you are to lose some part of the evidence inevitably. What do you --
11 MR. McCLOSKEY: I agree with you absolutely, and while I won't get
12 into the -- counsel's invitation on Mr. Jokic, that one of the reasons we
13 took the position we took in Mr. Jokic was for that -- that concern. But
14 that in the adversarial system is a decision that's decided at the joinder
15 motion stage, and so the Prosecution has the opportunity to evaluate
16 whether he wants to go forward alone or he wants to go forward with a
17 redacted version. Since it was not challenged at the -- as far as I
18 recall, at that stage under an adversarial system, they would be prevented
19 from bringing it up.
20 I think when we go over these statements --
21 JUDGE KWON: I don't follow. You say it was decided in the
22 joinder motion stage? What do you mean?
23 MR. McCLOSKEY: One reason not to grant to anyone that objected to
24 joinder should have said, "We object to joinder because Mr. Borovcanin's
25 statement will be -- will come into evidence, and it will affect my client
1 and negatively." That is a ground for severance or lack of joinder in an
2 adversarial system, because the jury -- many times you don't want to give
3 the jury an instruction ignore what he said against him. The problem you
4 pointed out. That's a ground for joinder. And if you don't bring it up
5 at joiner, the Prosecution doesn't have -- if it's not brought up at
6 joinder it's waived to be brought up later on.
7 Now, that's a technical adversarial system which I'm not trying to
8 bring upon us. I'm very willing to argue this now. But that's what I was
9 referring to.
10 But again, once we get to these phrases, and I don't have them all
11 in my head, some of them may not really affect Mr. Borovcanin, though most
12 of them do because he said them, but others might. And I do agree with
13 Mr. Meek, if you do give us an order, we'll of course be able to work
14 these things out as we have for 10 months now. I think -- we may not, but
15 I think we will be able to, but I hope that answers your question.
16 JUDGE AGIUS: Let me see if I am understood you well. Judge
17 Kwon's question was very simply put as follows: Can we not view that
18 kind -- or that as a kind of result as a consequence of the joinder? By
19 joining the accused, you are to lose some part of the evidence inevitably.
20 So your answer to that is no, Judge Kwon, it's exactly the
21 opposite. Once the matter was not raised the during the joinder stage, as
22 far as you are concerned, it's a matter that assumes a legal existence
23 because according to you the Defence teams, the accused, cannot raise it
24 at this stage.
25 MR. McCLOSKEY: That's -- that's correct. I think Judge Kwon is
1 correct that it would be an issue at the joinder stage that I would have
2 to live with, like you suggest.
3 JUDGE AGIUS: Yes, exactly.
4 MR. McCLOSKEY: And -- but -- but the nature of an adversarial
5 system means that I should not have to live with it after the joinder is
6 made. Standing here now whether I want to throw the adversarial system at
7 you in that particular context; frankly my answer is I don't. So I'm not
8 suggesting that that has been waived and that can't be discussed right
9 now. I'd rather -- I think we can discuss it, but --
10 JUDGE AGIUS: Yes, but I wanted to --.
11 MR. McCLOSKEY: I think if you take that into account overall that
12 it wasn't brought up --
13 JUDGE AGIUS: Yes. I wanted to see clear into that. Madam --
14 JUDGE KWON: My point is on -- I'm waiting for my -- my point was that
15 the -- the other way around on your part would be also possible. By
16 joining you may have consequences of not using part of the accused's
18 MR. McCLOSKEY: That's correct, and I could -- at the time that
19 that was discussed, I could have constructed the statement around any
20 legal problems to make joinder possible, especially when there's not 50
21 other courtrooms that I could try him in and 200 other Judges. And we
22 could have constructed it around that had that been the case but since it
23 wasn't brought up, there was no reason to do any construction.
24 Also, you'll see the statements. I'm not sure there's a whole lot
25 of reasons to do any construction anyway but, yes that -- that would have
1 been a function of joinder, but it should have been decided at the time of
2 joinder. I don't have any problem with it now, and I hope it's not a
3 burden I have now as part of this debate, but I'm willing to take it if it
5 JUDGE AGIUS: Thank you, Mr. McCloskey. Madam --
6 [Trial Chamber confers]
7 JUDGE AGIUS: Yes, Madam Fauveau.
8 MS. FAUVEAU: [Interpretation] Mr. President, I find the arguments
9 of the Prosecutor rather interesting concerning joinder, because it's in
10 fact the Prosecutor who asked for joinder. We the Defence of General
11 Miletic were opposed. We appealed against the decision on joinder, and
12 one of the grounds of our appeal was in fact that the leading of evidence
13 against co-accused could be prejudicial to General Miletic. This argument
14 did not concern in particular the interview of Mr. Borovcanin because I
15 don't think we were even aware of its existence at the time, and we were
16 certainly not away, because even today it's not on the 65 ter list, but we
17 were in any case not aware that it was ever going to be admitted into
19 What I'm trying to say is that in a joint trial the accused should
20 have all the rights, would have the right to be tried the same way as if
21 he were being tried separately. If General Miletic were being tried
22 separately, it is certain that the Borovcanin interview would never enter
23 into evidence in his trial, as it shouldn't now.
24 And in any case, contrary to what the Prosecutor says, in keeping
25 with Article -- Rule 82, something can be excluded. An instruction by the
1 Court can be made at any time during the trial if the rights of the
2 accused are thereby jeopardised.
3 JUDGE AGIUS: I thank you so much Madam Fauveau and also -- yes,
4 Mr. McCloskey.
5 MR. McCLOSKEY: Just very briefly to clear the record. I'm sure
6 she was aware of the statement. And it is -- contrary to what she has
7 said, that interview does affect her client, and it will be argued that it
8 affects her client, and it will also to some but a lesser degree affect
9 General Gvero, to a lesser degree, but just so you know that. Again we're
10 arguing in a vacuum because we don't have it, but -- and I don't want to
11 argue that now, but it's the third time she's said that, so I had to
13 JUDGE AGIUS: Okay. Thank you. I think it's the time to close
14 the -- bring the sit to go an end. I wish to thank you all for your
15 contribution on -- yes.
16 MR. NICHOLLS: Thank you, Your Honours. Can I have 30 seconds
17 [realtime transcript read in error "minutes"] to make a point on PW-108.
18 JUDGE AGIUS: Yes.
19 MR. NICHOLLS: I will be very brief. I agreed with the Defence
20 request and did not object to their request for more time because they
21 told me in good faith they needed more time to investigate. And the
22 reason I agreed really one other than just to cooperate was because it's
23 very important that the witness not have to come here once and then go
24 home and then come back again. And they assured me that they thought they
25 would be asking for more time if he did come.
1 So I just wanted to say that I don't object to more time, but
2 what I hope Your Honours don't decide to do, and I would strongly urge you
3 not to do is to bring him in just for direct examination or just for a
4 portion of cross and then return, I think. Because of the security
5 concerns we strongly suggest that this witness come here on one occasion
6 only. Thank you.
7 JUDGE AGIUS: Okay. Thank you for the record of page 41, line 5,
8 Mr. Nicholls didn't ask for 30 minutes, 30 seconds.
9 Okay. I wish to thank you all for your contributions to the
11 [Trial Chamber confers]
12 JUDGE AGIUS: So we will have a 25-minute break now, and after
13 which we'll come back to you on PW-108, because we still are undecided
14 what to do, and we need to reach consensus on that. That's number one.
15 And the second thing, we will give you a directive -- direction as
16 to what's going to happen on Tuesday when Mr. Alistair Graham comes over.
17 In other words, whether in addition to Mr. Borovcanin, as lawyers, whether
18 the -- other counsel, other counsel would be -- would have the opportunity
19 to cross-examine the witness on admissibility issues as well. So that the
20 reason being that you need to be prepared for this before he actually
21 comes to give testimony, give evidence.
22 So 25 minutes from now we'll come back on these two issues.
23 --- Recess taken at 10.39 a.m.
24 --- On resuming at 11.11 a.m.
25 JUDGE AGIUS: Yes, Madam Fauveau.
1 MS. FAUVEAU: [Interpretation] Mr. President, I just wanted to
2 clarify something in the transcript. On page 40, line 14, when I said
3 Article 82, I said that a joinder case could be separated, and in the
4 transcript it says something can be exploded [sic].
5 JUDGE AGIUS: Thank you, Madam Fauveau. Thank you, Madam Fauveau.
6 MS. FAUVEAU: [Interpretation] And the other thing I wanted to
7 point out is that I never said that the interview had no influence or I
8 impact on my client. I said his name wasn't mentioned in the interview,
9 and as a result redaction doesn't concern him; but I didn't refer to the
10 interview itself.
11 JUDGE AGIUS: I think if people had noticed the existence of that
12 word in the transcript we probably would not be sitting now.
13 So let me come first to the -- what would have been the next
14 witness, PW-108. As you may have guessed before, we were a little bit
15 hesitant on this. However, we do understand your concerns, Ms. Nikolic
16 and Mr. Bourgon, and also your concern, Mr. Nicholls, that you wouldn't
17 like to have this person's testimony in -- in bits and pieces or with
18 hiccups or with interruptions, so ultimately we have come to the decision
19 that we will cooperate with you. So for the time being we will be
20 postponing the testimony as per your request, Ms. Nikolic.
21 Next item that we are going to deal with is what I anticipated
22 before -- immediately before the break, and that's giving you a directive,
23 a direction as to what's going to happen when Mr. Alistair Graham shows up
24 on Tuesday. As regards examination and cross-examination.
25 It had been the Trial Chamber's original intention to decide the
1 issue of Borovcanin's statement if admitted with reference to the other
2 accused prior to the testimony of Alistair Graham next -- which is due
3 next week. However, given the extent of the submissions and the witness
4 schedule problems, that will not be feasible.
5 As stated yesterday, however, there will be a two-stage process in
6 relation to the Borovcanin statement with the first stage relating solely
7 to admissibility. As a result, I'm afraid that on this occasion the
8 Prosecution, taking prompt from Mr. Josse's expression, which I had used
9 before, too, on another occasion, the Prosecution will neither have the
10 cake nor be able to eat it. As we have decided to reserve our decision on
11 the use of the statement against the co-accused, we are going to allow all
12 Defence counsel to cross-examine and make submissions on the admissibility
13 of the interview. However, there are some caveats.
14 First, the Borovcanin Defence team will necessarily and obviously
15 be the first to proceed with cross-examination and then they will be
16 followed by other Defence teams in the order that you may wish to choose
17 amongst you, amongst yourselves. As usual, however, no repetition will be
18 allowed in terms of questioning or submissions, and even more importantly,
19 the questioning should at this stage be restricted to the issue of
20 admissibility of the statement. This, as indicated yesterday, will be the
21 case for both the Prosecution and the Defence.
22 Finally on the broader issue of the use of the statement, if any
23 of the parties wish to supplement the extensive submissions made
24 yesterday, that is in -- in other words, on whether relevant parts could
25 be made use of vis-a-vis co-accused. So if you wish to supplement the
1 extensive submissions yesterday or provide any additional case
2 authorities, then we are giving you the opportunity to do this provided
3 it's filed by close of business on Friday the 20th of July. And that
4 disposes of the matter for the time being. Of course it's only the first
5 part or the first chapter that we have written, and we'll take it up from
6 there in due course.
7 Now, do you wish to raise anything else before we adjourn?
8 Yes, Mr. McCloskey.
9 MR. McCLOSKEY: Mr. President, we don't anticipate playing any
10 parts of the tape regarding admissibility on direct examination. Perhaps
11 on redirect if -- if it is brought up on cross. Should we be prepared
12 after the voluntariness/admissibility issue is decided to -- to play the
13 rest of the tape, or is that something you don't want to hear, or where do
14 we go from there? And I -- I have had requests from the press that they
15 would like to hear the material, too, because they want to know what's
16 being said.
17 JUDGE AGIUS: We don't do things here because others request them.
18 Let me confer with my colleagues, please, on this.
19 [Trial Chamber confers]
20 JUDGE AGIUS: All right. I don't know if you've ever been a Boy
21 Scout, Mr. McCloskey, but if you haven't, we suggest that you become one,
22 and a good one at that. So our answer to that is be prepared. We don't
23 know what will be the position during or at the end of Mr. Graham's
24 testimony. We may or we may not require. So be prepared for either of
25 the two eventualities.
1 MR. McCLOSKEY: Thank you, Mr. President. I -- I will be. I can
2 recite the Scout oath, but I think that's about it.
3 Can I ask you one more -- one more question? The -- as, I you
4 know you've been listening to me far too much, probably, but I have been
5 suggesting that the issue for Alistair Graham's testimony at first is an
6 issue of the legal issue of voluntariness, and now you have -- have ruled
7 that the issue will be admissibility.
8 Now, admissibility, as we know from the intercepts, can be much
9 broader than voluntariness. It can go to the reliability, credibility of
10 Alistair Graham, I guess, of questions he asked, and because normally a
11 voluntariness voir dire is very short and is pretty much limited to very
12 certain specific issues that go to voluntariness, but if my understanding
13 that this is -- goes to admissibility, a much broader topic, then they're
14 able to cross-examine on an a much broader topic than -- than
15 voluntariness. The -- our intention for what we did on -- in our direct
16 examination may -- may change. So in fact if it's a full frontal, full
17 attack on reliability, credibility as we've seen your decisions relating
18 to the intercepts, it may make, well, more sense from the Prosecution's
19 perspective for you to see this product before the attack. If it's a full
20 attack, you had should see the product before the attack, and -- but if
21 it's a limited voluntariness issue, you see, you see the person in charge
22 of voluntariness, the investigator, and he's challenged by everyone. So
23 if it's a full attack on the whole process, on the whole interview, the
24 best way to do that would be to see the whole interview and then attack
25 the whole interview.
1 What I was suggesting was the voluntariness issue first. If the
2 voluntary hurdle is met, then the document -- it should be admissible
3 against Borovcanin and it should be accepted into court against him, and
4 then the issue of acceptance against others could be argued. And if
5 overall credibility of the overall document -- or interview was going to
6 be challenged, then we'd play the tape at the point and then all the
7 cross-examinations occur. But I don't think it's fair to have a challenge
8 to this entire product without you seeing the product first.
9 JUDGE AGIUS: Yes, Mr. Josse and Mr. Lazarevic. I think I'll give
10 the floor to Mr. Lazarevic first.
11 Mr. Lazarevic.
12 MR. LAZAREVIC: Thank you, Your Honour. I believe it has to do
13 with it. What we suggest, after I heard what Mr. McCloskey said is that
14 he's trying to put these interviews through the back door in this way.
15 The way we understand it, if Mr. McCloskey intends to play the
16 tape before a decision of this Trial Chamber is issued about the
17 admissibility of the interviews, that would cause serious prejudice
18 against not just Mr. Borovcanin but against -- but towards all the other
19 of the accused. So it is our position - I apologise - that first a
20 decision about the admissibility of the interviews should be decided by
21 this Trial Chamber, and I have to say at this moment if the Trial Chamber
22 decides that these interviews should be added into evidence, we will ask
23 for certification against such an appeal. I believe Your Honour had
24 already anticipated this I believe a day or two ago when we had similar
25 discussion. You told us that whatever the decision on admissibility would
1 be, either the Prosecution or the Defence would appeal against it.
2 So I'm strongly objecting of playing tapes before the question of
3 admissibility is decided.
4 JUDGE AGIUS: I thank you, Mr. Lazarevic. Mr. Josse.
5 MR. JOSSE: Could I make this different practical observation,
6 Your Honour, in relation to Mr. McCloskey's plea as to whether he needs to
7 be prepared. The Trial Chamber has understandably restricted our
8 cross-examination to the issue admissibility. We will not be in a
9 position to know whether we need then to cross-examine Mr. Graham in the
10 event, one, the interview is ruled admissible until the question of
11 admissibility as against the other accused is also decided upon, because
12 of course the questions we might ask so far as that's concerned are
13 completely different.
14 JUDGE AGIUS: You're hundred per cent correct.
15 MR. JOSSE: And -- yes. Well, I don't need say any more.
16 [Trial Chamber confers]
17 JUDGE AGIUS: Okay. Judge Prost will be answering your question,
18 Mr. McCloskey, and more or less it draws from a point that we made when we
19 first started discussing this when we called on Mr. Lazarevic to be more
20 precise in -- in his submissions and at least give us an indication of
21 what he was contesting within the framework of admissibility.
22 So Judge Prost, please.
23 JUDGE PROST: Yes. Basically it's as the President has indicated,
24 Mr. McCloskey. We anticipate the issue of admissibility to be a confined
25 one in this instance based on the grounds of which counsel for
1 Mr. Borovcanin had already outlined to you as the basis for the legal
2 arguments which will be advanced in relation to the admissibility issue.
3 It is certainly broader than just voluntariness because he made
4 reference to things such as adequate representation, the nature of the
5 cautions that were given, things of that nature. So it is not strictly
6 just in a pure common law tradition of voluntariness, but it is not in our
7 view a question that goes to the broader issues of overall credibility,
8 how questions were put in the sense of assessing the substance of the
10 We expect the arguments, the cross-examinations, and the
11 submissions to focus on admissibility issues of that nature include
12 voluntariness. Obviously, some of the other counsel may identify some
13 other legal issues and those may have been determined case by case as they
14 relate to admissibility, but we are not anticipating a broad ranging
15 challenge that deals with the substance of the interview. It is
16 restricted as indicated to what's been identified as the legal issues to
18 [Trial Chamber confers]
19 JUDGE AGIUS: Yes, but he's reframed it in a rather different way
20 today. We are also answering your posit, namely, that according to you
21 it's more appropriate that this audio recording be played before we start
22 this whole process. Our answer is no.
23 MR. McCLOSKEY: Mr. President, I -- based on the -- the
24 clarification, I would agree. With those limited issues, there is -- it's
25 not appropriate to play -- play it, but I was going on the way I -- we
1 viewed admissibility in the intercept context, which was everything,
2 but -- and so I thank you for that clarification. And -- however, as I
3 would request that it has -- other Defences have legal issues along the
4 same lines that we be allowed to hear them now as would be appropriate for
5 any legal issues, especially regarding admissibility.
6 It is normal to receive this information in writing, which is
7 fine. We don't need that. But we should have some idea of where they're
8 planning -- where others are planning to go. If it's within the context
9 of Mr. Lazarevic's statements, fine, but if there's something new -- legal
10 issues are not the kind of thing that pop up in the middle of a
11 discussion -- I mean, in the middle of a hearing like this. These are
12 issues that people are prepared for and that the Prosecution should have
13 notice of. If there's anything new. If there's not, we're fine.
14 JUDGE AGIUS: Thank you. Does any one of the Defence team wish to
15 address this issue? Yes, Mr. Bourgon.
16 MR. JOSSE: I would ask till close of business tomorrow for the
17 remaining six accused to notify the Prosecution in writing as to whether
18 any further issues arise. It's simply not a question I could answer at
19 this very moment.
20 JUDGE AGIUS: Okay. I think that's fair enough. That's fair
22 [Trial Chamber confers]
23 JUDGE AGIUS: All right. Agreed. So you will have until the end
24 of business of tomorrow -- tomorrow's Friday. Okay.
25 Yes. Does anyone wish to address the Chamber on anything else?
1 Yes, Mr. Bourgon.
2 MR. BOURGON: [Interpretation] Thank you, Mr. President. With your
3 permission, I'd like to address the Chamber with regard to a delicate
4 subject, and I would like to do it in private session, please.
5 JUDGE AGIUS: Yes. Let's go into private session.
6 [Private session]
11 Page 13811 redacted. Private session
15 [Open session]
16 JUDGE AGIUS: We are in open session now, and if there is no other
17 business to transact, we will adjourn. Please be prepared with
18 Alistair Graham on Tuesday and with -- as I explained, the possibility --
19 either two possibilities. We can't tell you whether we will require the
20 use of that tape.
21 Thank you. Have a good afternoon.
22 --- Whereupon the hearing adjourned at 11.44 a.m.,
23 to be reconvened on Tuesday, the 17th day
24 of July, 2007, at 2.15 p.m.