Tribunal Criminal Tribunal for the Former Yugoslavia

Page 280

1 Friday, 18 May 2001

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.49 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. This is the case number

8 IT-99-36-PT, the Prosecutor versus Brdjanin and Talic.

9 JUDGE HUNT: Appearances for the Prosecution.

10 MS. KORNER: Your Honour, Joanna Korner and Anna Richterova for

11 the Prosecution, together with Adele Erasmus case manager.

12 JUDGE HUNT: Thank you. For Mr. Brdjanin. Mr. Ackerman.

13 MR. ACKERMAN: Good morning, Your Honour. I'm John Ackerman. I

14 appear here on behalf of Mr. Radoslav Brdjanin and I have with me Ms.

15 Radoslava Mirkovic an interpreter. Thank you.

16 JUDGE HUNT: Thank you. For General Talic.

17 MR. PITRON: [Interpretation] Good morning, Your Honour. Michel

18 Pitron, counsel at the bar of Paris, I represent the interests of General

19 Talic, and I am being assisted by Ms. Natasha Fauveau.

20 JUDGE HUNT: Thank you. Mr. Brdjanin, are you able to hear the

21 proceedings in a language which you understand?

22 THE ACCUSED BRDJANIN: [Interpretation] Yes, Your Honour.

23 JUDGE HUNT: General Talic, are you able to hear the proceedings

24 in a language which you understand?

25 THE ACCUSED TALIC: [Interpretation] Yes.

Page 281

1 JUDGE HUNT: Thank you. Before we get to the Status Conference, I

2 would prefer to start with the matter relating to 92 bis. That's the

3 matter which the registry has referred to the Trial Chamber to try and

4 sort out a few wrinkles that appear to be developing in the process.

5 Ms. Korner, the problem is the use of the original statements.

6 MS. KORNER: I heard what Your Honour said in Vasiljevic.

7 JUDGE HUNT: Yes. It is producing immense problems, even if you

8 provide the B/C/S translation of them. They are statements which were

9 taken a very long time ago. They contain a tremendous amount of material

10 which is irrelevant to this case. And the witnesses, having seen them for

11 the first time, say that's not what I said or I don't remember saying

12 that. We have this problem in every trial when the witnesses are

13 cross-examined on them, and it is demonstrated very clearly that with all

14 the errors which are possible in the various translations from the B/C/S

15 to English, back to B/C/S, when they then sign the English version and

16 then that document is translated by somebody else into B/C/S and served on

17 the Defence, that when the witness said that's not quite what I said, you

18 have to believe them. Now, the value of a 92 bis statement is that they

19 can be prosecuted for perjury, and I can't imagine any prosecution for

20 perjury succeeding if you use the original statements.

21 MS. KORNER: Obviously as Your Honour knows, Mr. Dubuisson and an

22 investigator went off I think a couple of days ago.

23 JUDGE HUNT: And in each case they had this problem.

24 MS. KORNER: Yes. And in each case the witness said that wasn't

25 quite what they said and there had to be an addition. Your Honour, it

Page 282

1 seems to be a practical problem, as it were, which might be resolved if --

2 and it's a suggestion that I've made to the investigators, whether it

3 works or not I don't know, is that before the registry gets involved, the

4 statements are given to the witnesses to read, as it were, in peace and to

5 actually -- they're actually asked to say is that what you said and what

6 you intended to say?

7 JUDGE HUNT: Do you think you might be able to cross out those

8 parts which are irrelevant as well?

9 MS. KORNER: Well, that's the difficulty, isn't it? What we

10 might think is irrelevant is not something that the Defence might think is

11 irrelevant.

12 JUDGE HUNT: But they're there to produce the evidence that you

13 want. The Defence can ask them to attend for cross-examination and can

14 use the original statements for that purpose. What I'm trying to avoid is

15 this having 15 pages of material of which only about three or four

16 paragraphs have ever been introduced into evidence. I certainly

17 understand the circumstances in which the statements were compiled at a

18 time when there was no accused, no particular crime being investigated,

19 but it was just a general investigation. At one stage Rule 66 was amended

20 to require the Prosecution to read back in B/C/S the English version and

21 to have it audio recorded in order to overcome the problems that they were

22 having with cross-examination. But the difficulty is certainly increased

23 immeasurably if you want to charge someone with perjury.

24 MS. KORNER: Your Honour, obviously I want to think about it, but

25 in theory I can see no reason why we shouldn't cross out the parts that

Page 283

1 really are not relevant to the particular issue on which they're being

2 called.

3 JUDGE HUNT: The best way, and I realise you have a lot of

4 statements and it may be a little late to start thinking about it, but the

5 best way would be to have fresh statements. That was done in Kordic. The

6 Prosecution produced new statements which obviously added material which

7 you would have elicited from the witness in chief anyway, cleaned them up,

8 got rid of all the extraneous material, and produced nice, fresh

9 statements that related to this case.

10 MS. KORNER: Was that the day before the witness was called?


12 MS. KORNER: That was in advance.

13 JUDGE HUNT: There were some problems about time, I know.

14 MS. KORNER: Yes. Your Honour, I think that's the reality, is

15 lack of staff, both in the Translation Unit and in the investigative unit

16 to go and resee all these witnesses. Your Honour, I will certainly

17 consider -- I take the point that Your Honour is making, and I will

18 certainly consider whether there is a way round all the extraneous

19 material, as it were, coming in.

20 JUDGE HUNT: Well, it would be of great help if you could.

21 MS. KORNER: The only other alternative that we thought that would

22 assist, Your Honour, is that we prepared a summary in advance, again,

23 there may be translation problems, of the relevant parts of the evidence,

24 then attached that and have that read back to the witness and the witness

25 sign that, and it's a question of --

Page 284

1 JUDGE HUNT: Well, it's a question of what goes into evidence. It

2 can only be the part that's read back to them and which they've signed.

3 MS. KORNER: Yes.

4 JUDGE HUNT: And it would be best to have it translated into B/C/S

5 anyway.

6 MS. KORNER: It is. I mean, at the moment that's what's

7 happening.

8 JUDGE HUNT: Well, you're obviously aware of the problems that

9 have already arisen.

10 MS. KORNER: Yes.

11 JUDGE HUNT: And from the registry's point of view, it's time

12 wasting whilst these things are done on the day that they are to certify

13 this, so that should be done in advance. But may I suggest that you give

14 some consideration at least for some witnesses in having fresh

15 statements. The idea of 92 bis was not to use the original Prosecution

16 statements.

17 MS. KORNER: I hadn't appreciated that.

18 JUDGE HUNT: We thought that it would work if we had nice, fresh

19 statements that were relevant to the case.

20 MS. KORNER: Your Honour has very clearly made the point, and I'll

21 see what can be done.

22 JUDGE HUNT: All right, then. All right, then. Thank you very

23 much. We'll leave 92 bis and we'll now proceed with the Status

24 Conference.

25 Well, Ms. Korner, again, disclosure. Today is the day, is it not,

Page 285

1 for most of the 2 million pages to be delivered?

2 MS. KORNER: I think -- yes, Your Honour how slightly misread.

3 The two million pages that was referred to was all the collections, not

4 just the collections relevant to this case. What we have done, or what is

5 available today, is that I think approximately 50 per cent of the

6 documents from what we've called the CSB collection have been placed on

7 CD-ROM with a searchable tool attached and will be given to Defence

8 counsel today. I'm sorry, I'm being corrected. Seventy per cent. The

9 remaining 30 per cent will be available, as far as I remember, by

10 mid-June.

11 JUDGE HUNT: Bearing in mind that these were promised, I think it

12 was in August of last year, I'm not very confident about that. Is it a

13 realistic estimate, mid-June?

14 MS. KORNER: I'm told, yes.

15 JUDGE HUNT: There was also a problem, I read in one of the

16 documents in this case, with the search engine. Has that been cured? It

17 didn't work.

18 MS. KORNER: Your Honour, that's not been brought to our

19 attention. I'm taken by surprise by that one.

20 JUDGE HUNT: Well, I could only have got it from one of the

21 documents that have been filed, by Mr. Ackerman, as I recall. No?

22 Somebody raised an issue that the search engine that was provided didn't

23 work properly.

24 MS. KORNER: It may be another case, Your Honour. Neither

25 Mr. Ackerman nor Mr. Pitron brought that to our attention.

Page 286

1 JUDGE HUNT: I suppose we do run a few cases at the same time and

2 I may be wrong about that. All right. Well, that's mid-June for the

3 CSB. Now, what about the remaining material? Is that all now disclosed?

4 MS. KORNER: No. We're still disclosing in hard copy form the

5 documents from the CSB collection and some from other collections. And

6 the problem there, both under Rule 66 and Rule 68 - the problem there

7 literally has been both selection and translation. Your Honour, can I --

8 I think it may help, because I obviously, as Your Honour has, I've read,

9 with some care, Mr. Ackerman's complaints about it, that sitting in this

10 building of the collections of documents which are actually relevant to

11 this case, we've reviewed so far more than 600.000 documents, which we're

12 obliged to, under the Rules, in order to ensure, as far as we're able,

13 that all Rule 68 material goes to the Defence. So far we've disclosed in

14 hard copy form 1.372 documents, and we estimate that there will be another

15 approximately 2.500. Many of these documents are presently in

16 translation. And this is not a complaint, because we appreciate the

17 difficulties, because there are many cases, and Defence cases as well,

18 competing for the Translation Unit's services, but the deadlines are quite

19 long, and of course we get the documents back in what's called draft

20 translation, and they then have to be checked and submitted for revision

21 before a full translation which is acceptable to the Court can be

22 produced.

23 JUDGE HUNT: This case started in when, 1999?

24 MS. KORNER: The arrest of the defendants took place in 1999, yes.

25 JUDGE HUNT: So this has been going on for two years.

Page 287

1 MS. KORNER: Yes.

2 JUDGE HUNT: And you've only got through less than half of the

3 documents to be supplied.

4 MS. KORNER: We've only disclosed in hard copy, yes.

5 JUDGE HUNT: Well, have you disclosed them in any other form?

6 MS. KORNER: Well, they're all disclosed. The collections of

7 documents which appear to be relevant to this case, nearly all of them

8 have been disclosed in CD-ROM form with search tools. But that doesn't

9 relieve us of the obligation, obviously, to still go through and produce,

10 with translations, the documents on which we're going to rely and those

11 which we think may be exculpatory.

12 JUDGE HUNT: But if it's taken something like two years to produce

13 1.300 documents, how much longer is it going to take to produce the other

14 two and a half thousand?

15 MS. KORNER: Well, Your Honour, we're doing our best. We've had a

16 lot of conversations with the Translation Unit. We think -- would Your

17 Honour forgive me for one moment.

18 [Prosecution counsel confer]

19 MS. KORNER: Your Honour, I'm sorry. There has been a lot of

20 discussion, obviously, because it's quite difficult to keep track on

21 this. We've identified, we estimate, nearly all the documents on which we

22 intend to rely or which are Rule 68. The best estimate we can give is end

23 July/mid-August.

24 JUDGE HUNT: This is a case which we had hoped would commence by

25 then, as it is, it can't commence before September when we have some ad

Page 288

1 litem Judges. But it seems to me that we're in a lot of trouble.

2 MS. KORNER: Your Honour, it is the -- I mean, the major

3 difficulty is the translation facilities.

4 JUDGE HUNT: How long has the Translation Unit had these documents

5 to translate?

6 MS. KORNER: It has at the moment in for translation --

7 JUDGE HUNT: No. How long have they had them for?

8 MS. KORNER: Some since last year, some -- it's an ongoing

9 process.

10 JUDGE HUNT: What about the -- I'm sorry. I'll start that again.

11 Is it only a question under Rule 68 of identifying the documents which you

12 would put forward under Rule 68? They already have those documents, you

13 say.

14 MS. KORNER: They've got Rule 68 -- what we consider to be Rule 68

15 documents, or maybe, and Rule 66 in hard copy form, with translations.

16 But of course they could themselves, because they've got the facility to

17 search.

18 JUDGE HUNT: That's what I'm saying. The other two and a half

19 thousand are already in their possession in electronic form but not

20 identified as Rule 68 material.

21 MS. KORNER: Yes. I would have thought so. Yes. Yes.

22 JUDGE HUNT: Now, what about the other cases that the orders were

23 made by the President.

24 MS. KORNER: Yes. As Your Honour said, I'm not quite clear why we

25 were blamed for the lack of transfer of the documents.

Page 289

1 JUDGE HUNT: Well, the order was that you cooperate with the

2 registry because you have possession of them.


4 JUDGE HUNT: Don't you?

5 MS. KORNER: No, the registry has -- it's the other way around.

6 It's the registry in cooperation with the Prosecution -- the registry has

7 them. As I understand it, what has happened is they've checked with the

8 Prosecution to see whether or not there was any problem with the transfer.

9 I think the reason there was the delay was because we put in the motion.

10 We -- Your Honour disagreed that you had the power to make any different

11 orders from those of Judge Jorda. When we received the order from Judge

12 Jorda, we then put in a motion to Your Honour asking for, as it were,

13 different protective measures, and that's why, I imagine, the registry

14 waited for the result of that.

15 JUDGE HUNT: Yes. There wasn't a statement by the Prosecution to

16 hold it up until those three particular documents were resolved?

17 MS. KORNER: Not that I'm aware of, no.

18 JUDGE HUNT: All right. Well, what else have you got to say about

19 outstanding disclosure?

20 MS. KORNER: There are still a number of statements which we

21 anticipate disclosing, the reason being that they haven't been disclosed

22 so far, the majority relate to crime-based evidence as opposed to direct

23 evidence against the accused, is because we've having problems about their

24 willingness to testify. And as I don't wish to repeat what we've

25 already -- what's gone before Your Honour before, each of these witnesses

Page 290

1 has to be seen personally.

2 JUDGE HUNT: Well, their evidence is perhaps of less importance,

3 but is there any of the direct evidence against the two accused that's

4 involved in this particular process?

5 MS. KORNER: Yes. There are one or two who will give direct

6 evidence.

7 JUDGE HUNT: When do you anticipate being able to disclose those?

8 MS. KORNER: By the end of June.

9 JUDGE HUNT: Are they ones in which you are going to seek

10 protective measures for?

11 MS. KORNER: They will be -- there are a number of witnesses who

12 will be seeking protective measures at trial, but not -- not delayed

13 disclosure.

14 JUDGE HUNT: Yes. Well, we will call it delayed disclosure, yes.

15 So that doesn't arise in relation to any of these?

16 MS. KORNER: No.

17 JUDGE HUNT: All right. And I'm sorry. When -- end of June, was

18 it?

19 MS. KORNER: Yes.

20 JUDGE HUNT: So you will have everything except the Rule 68

21 material to the accused by the end of June.

22 MS. KORNER: Except for, yes, the documents that have to be -- not

23 just Rule 68 material documents. There are also documents that the

24 Prosecution intends to rely on.

25 JUDGE HUNT: I'm sorry. We had better get this straight. You

Page 291













13 Blank page inserted to ensure Pagination corresponds between the French

14 and the English transcripts.












Page 292

1 said that there are only one or two of direct evidence against the

2 accused.

3 MS. KORNER: I'm sorry. I thought Your Honour was going back to

4 documents. Statements. There are one or two who will give direct

5 evidence against the accused. The remainder talk about crimes which are

6 listed on the indictment.

7 JUDGE HUNT: You see, there's a justifiable complaint that

8 Mr. Ackerman makes that the Prosecution gives no assistance as to why they

9 are giving them this material. I know you're not obliged under the Rule

10 to do so, but you must see some relevance in them, because you are

11 disclosing them.

12 MS. KORNER: Yes.

13 JUDGE HUNT: Is there any way in which you can say, "We believe

14 this may be relevant to so-and-so?"

15 MS. KORNER: Is Your Honour now talking about Rule 68 or what

16 we're relying on?

17 JUDGE HUNT: What you're relying on.

18 MS. KORNER: I suppose we could, but we would have thought it was

19 fairly self-evident, because the statements we disclose talk about

20 incidents which are now listed on the indictment.

21 JUDGE HUNT: Well, I remember, for example, Mr. Pitron complaining

22 that he was plowing through all of the traffic offences in Banja Luka or

23 somewhere, and I was wondering myself how that could be relevant, unless

24 it was perhaps a Crisis Staff decision or something.

25 MS. KORNER: He was complaining about the traffic offences because

Page 293

1 that's what he got on the CDs because they asked for all the documents

2 from Banja Luka, the municipal building, and that included traffic

3 offences.

4 JUDGE HUNT: And you say that all of the other material upon which

5 you are going to rely is fair self-evident as to its relevance?

6 MS. KORNER: Yes.

7 JUDGE HUNT: Very well.

8 MS. KORNER: That's why we disclose it in hard copy form. Can I

9 tell Your Honour, though: Obviously for trial we can't be using that many

10 documents. We are going to --

11 JUDGE HUNT: I hope not.

12 MS. KORNER: Yes. The principle is better safe than sorry at this

13 stage.

14 JUDGE HUNT: All right. Is there anything else about disclosure

15 you want to say?

16 MS. KORNER: I don't think so. Well, Your Honour, can I mention

17 yes, experts. There will be experts. The Rules say they should be

18 disclosed 21 days before calling the expert. We intend to disclose before

19 then, but we anticipate about five experts giving evidence.


21 MS. KORNER: We can't -- the reason -- one of the reasons, of

22 course, that we can't at this stage provide the statements is they have to

23 know what evidence we're going to be relying on in some cases.

24 JUDGE HUNT: In relation to that, I know that it's not strictly

25 before us yet, but you have a motion to which Mr. Ackerman has already

Page 294

1 replied.

2 MS. KORNER: And very speedy it was too.

3 JUDGE HUNT: Yes. And it I may say so, he's got a good point

4 because there is another letter which has been filed other than the

5 one which is disclosed in your motion from Mr. --

6 MS. KORNER: Zacklin.

7 JUDGE HUNT: Zacklin, yes.

8 MS. KORNER: Because it was disclosed by the registry in a motion.

9 JUDGE HUNT: Yes, but the third last paragraph of that says that

10 the transcript and recordings of his testimony be restricted to the Trial

11 Chambers and their staff, to the Prosecutor and her staff, and to the

12 accused and their counsel.

13 MS. KORNER: And expert --

14 JUDGE HUNT: And expert advisors.

15 MS. KORNER: That's where the phrase comes from, that --

16 JUDGE HUNT: Yes, but as I understand it, you are seeking to have

17 it excluded from the accused. That seems to be the burden of Mr.

18 Ackerman's complaint.

19 MS. KORNER: No. Mr. Ackerman is complaining about the phrase

20 expert advisors who are acting pursuant to their instructions or request.

21 JUDGE HUNT: That means that they can see them.

22 MS. KORNER: The accused.


24 MS. KORNER: Oh, yes.

25 JUDGE HUNT: Yes. And the expert advisors.

Page 295

1 MS. KORNER: Yes. Mr. Ackerman wants it to go wider than expert

2 advisors. He wants it anybody that the Defence choose to in the course of

3 their investigation, as I read paragraph 6. Defendant Brdanin would

4 suggest a protective order that would prevent defence counsel or any

5 member of the Defence team from disclosing the contents of the document to

6 the public other than as may be required to pursue a legitimate

7 investigation.

8 JUDGE HUNT: I see. All right. We'll wait to get a reply on

9 that.

10 [Trial Chamber and legal officer confer]

11 MS. KORNER: Your Honour, may I --

12 JUDGE HUNT: I am reminded by the French interpreters that we are

13 falling into the problem which we usually have between Jugoslav counsel

14 and Yugoslav witnesses, that we are not pausing between our questions and

15 answers, or at least our statements, for which I apologise.

16 MS. KORNER: Your Honour, may I raise then one further matter. We

17 have exhumation evidence. It was referred to by Mr. Ackerman in his last

18 motion. The evidence itself is contained in documents and reports

19 supplied both by the Bosnian authorities who have conducted these

20 exhumations and by those conducted directly by the ICTY, the OTP. The

21 documents fill 73 binders. What we have done today, with a covering

22 letter, is we have produced for the Defence two sample exhumations in

23 full, one conducted by the Bosnians and one by the OTP. That is to say,

24 we have provided the documents for those exhumations translated. Those

25 fill ten binders. We have then listed, in schedule form, all the other

Page 296

1 information relating to the exhumations conducted and what are called the

2 Court declarations of death. After a certain period in

3 Bosnia-Herzegovina, as is in most jurisdictions, you can go and petition

4 the Court for a declaration that someone who hasn't been seen for I

5 believe it's five years in Bosnia, may be declared dead.

6 Again, we have copied some sample documents showing how these

7 declarations of death are issued. The remainder is in schedule form.

8 Your Honour, we have asked the Defence to agree. They only

9 received them this morning, but we have asked the Defence if they are

10 prepared to agree that those schedules represent the remainder of the

11 evidence. We have invited the Defence for both accused to examine and

12 take copies of any of the documentation they wish to, all of which is

13 retained in our offices. But clearly, it would be a quite impossible

14 task, or not impossible, but a lengthy and time-consuming of resources to

15 copy and translate every document. They are, if I may say so, exceedingly

16 repetitive documents.

17 JUDGE HUNT: We had a very similar issue in relation to the trial

18 we're currently undertaking, and it was agreed that the Defence would not

19 make any admissions but they would nevertheless permit the Prosecution to

20 prove the matter by less than strict evidence. That may be a compromise

21 that you could come to.

22 MS. KORNER: Yes.

23 JUDGE HUNT: So they don't make any admissions which they need

24 not, but they certainly do not require you to prove it strictly.

25 MS. KORNER: Yes.

Page 297

1 JUDGE HUNT: And that may be something you could consider.

2 MS. KORNER: Yes.

3 JUDGE HUNT: Yes. I was about to say when the French interpreters

4 very justifiably complained, you had better file a reply to Mr. Ackerman's

5 response in that other motion about the UN witness so that we've got

6 that straight and we can make an order very simply.

7 MS. KORNER: Yes.

8 JUDGE HUNT: There is -- General Talic of course has a right to

9 respond. The time certainly has not yet expired. Anything else about

10 disclosure?

11 MS. KORNER: No. I think that's everything.

12 JUDGE HUNT: Thank you.

13 Well, now, Mr. Ackerman. You will no doubt want to say something

14 about disclosure.

15 MR. ACKERMAN: Well, I have a few things to say, Your Honour, and

16 I must say first of all that I'm distressed to learn that we have only

17 been provided at this point with about a third of the documents that the

18 Prosecutor intends to provide us in terms of the hard copy disclosure. I

19 am now getting, as you know, Your Honour, some additional assistance, and

20 that will speed up the process of processing these documents. But as you

21 know, Your Honour, it's not enough to receive a stack of documents and

22 read them. You have to figure out some kind of way to compile and catalog

23 them so that when you want to see that document again, you'll have some

24 way of finding it. And so these documents are going through a process in

25 my office so that they can be retrieved when they need to be retrieved,

Page 298

1 and that takes time.

2 I have not found myself sitting and waiting for the Prosecutor to

3 give me more documents. I've been processing them roughly at the rate

4 that they've been supplied, and that's been going on for over a year now.

5 With 2.500 more documents to come, I have no idea how many pages that

6 might be, but if it's similar to what we've got so far, there's probably

7 another 25.000 or 30.000 pages contained in those additional 2.500

8 documents.

9 I need to try to -- the next thing I need to do is try to clarify

10 for Your Honour these collections that are being provided to us on CD-ROM

11 that have so much material on them that is totally irrelevant to what

12 we're doing here. What happened was when I first became involved in the

13 case, I asked the investigators to go to the municipality building, the

14 CSB, all those places in Banja Luka where document were likely to be found

15 and go through documents from 1992 to see what was there that would be

16 relevant to our case. That could have been accomplished, I think, rather

17 quickly. What they discovered, though, was that the Prosecution had

18 gotten there ahead of them and not simply looked at the documents, but

19 just boxed them all up and brought them to The Hague. So there's a

20 truckload of documents that came from Banja Luka to The Hague, laying in

21 the Prosecutor's office, and they're going through their processing. And

22 so they have become for us the sole source of our investigation into the

23 documentation that was available in Banja Luka. And I discussed this with

24 Ms. Korner, and she agreed that we were entitled to look at those

25 documents and suggested I should just come to their office and go through

Page 299

1 them. And I pointed out the folly of that, since I don't read B/S/C and

2 she hadn't translated any of them. So then we decided that they would be

3 provided on CD-ROMs, and now I have to have people sit and look at each

4 one of those documents. And, yes, you know, occasionally there is one

5 that is a traffic offence. But I can't say to my people look at every

6 tenth document or every 50th document, because it's the one that they

7 don't look at which is the one that I'll need.

8 The other thing that needs I think some clarification is this

9 supplying to us of documents on CD-ROM with a search engine. The search

10 engine is useful only in this sense, Your Honour: If you go through the

11 CD-ROM and look at every document and make note of 150 documents and what

12 they contain that is useful to you, then the search engine is very useful

13 in terms of finding those documents again when you need them. But it's

14 not useful in terms of determining what documents in the collection are of

15 relevance, because also as Your Honour knows, it's the absence of an entry

16 in an official record that may be the evidence and not the entry in the

17 record that may be the evidence. So one must look at each one of those

18 documents and one must find people to look at them that have some

19 understanding of what the case is about so when they look at the document

20 they can look at it with a mind directed toward what the issues are in the

21 case and make that determination as to whether it's a document that should

22 be pulled out and translated, and that sort of thing.

23 Finally, I want to talk just a moment about this exhumation

24 evidence. Occasionally in this world we do things only because it's

25 possible to do them. When we tried the Celebici case, the Prosecutor

Page 300

1 hadn't gotten around to doing all this fancy exhumation and DNA and all

2 that sort of thing, and the Court had no problem in concluding that the

3 people who the Prosecution claimed were dead were in fact dead because

4 they just did it by people saying, yes, I saw his body and he wasn't

5 breathing. But now that they have done all these exhumations and have all

6 this technology and so forth, then all of a sudden this evidence has

7 become important. And I don't want to read 73 volumes of exhumation

8 material. I think your suggestion, Your Honour, that there could be some

9 level other than strict proof that could be used with regard to those

10 makes a great deal of sense. I don't think either of us here are in a

11 position to say we're going to admit all these people the Prosecution

12 claims are dead are dead and were killed by the various means. But by the

13 same token, having -- requiring the Prosecutor to bring all of these

14 experts here and bring on the DNA evidence and everything else is I think

15 excessive. I think there's a place where we can come together on that.

16 JUDGE HUNT: Well, in the current trial we have a number of people

17 who are alleged to have been killed. I think they only ever found two

18 bodies. But they had an investigator who went around and spoke to the

19 families of all the people, who then made a report that these families say

20 our son was somebody who saw us every Sunday, or whatever it was; we

21 haven't seen him since he was put inside the gaol.

22 MR. ACKERMAN: Yes, yes --

23 JUDGE HUNT: When you have a number of people who were clearly

24 inside the gaol and who have never been seen again since, you can draw an

25 inference that they're dead.

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Page 302


2 JUDGE HUNT: No further -- not how the death occurred, but that

3 they are dead, so it overcomes a great deal of proof that the

4 investigator, having made these inquiries from the people who would have

5 been expected to have heard from the deceased and they have not heard from

6 the deceased, or the particular person, then you can draw an inference at

7 least that the person is dead. And the proof was done by a statement from

8 the investigator, he was called to give any evidence that they wanted, and

9 that was the informal proof, rather than call all the members of the

10 families to come along and say what they told the investigator.

11 MR. ACKERMAN: Well, and as an intensely practical matter, if the

12 Prosecution is alleging a hundred people are dead and it turns out that

13 four of those actually ran off to Canada with their girlfriends, taking

14 advantage of the war situation, you're still at 96 and what difference

15 does that make in terms of the sentence that's finally going to come out

16 of that process if there's a conviction? I mean, it tends to become such

17 minutiae that it's not worth fooling with.

18 JUDGE HUNT: But it's not a question of admitting that they're

19 dead but just allowing the Prosecution to prove it in that less than

20 strict way.

21 MR. ACKERMAN: I don't see that there's going to be a problem with

22 working that out.

23 Your Honour, I don't know what to say to you this morning about a

24 trial date in this case, because that's very difficult for -- it's very

25 difficult for me to work out how long it's going to take to get to the

Page 303

1 point where I would feel that I am legitimately ready to try this case in

2 terms of having done the things that I think I'm required ethically to

3 accomplish.

4 One of the things that I've not mentioned in any of my motions or

5 anything like that, but that you will appreciate, is that as I identify

6 documents that I have some question about, I, of course, need to discuss

7 those documents with my client, and my client is here, of course, in

8 detention. And so I have to be here, I have to take a sheaf of documents

9 there and I have to sit there and go through the tedious process

10 of having him read them in Serbo-Croat and give me his comments about them

11 and have those translated so that I can make those notes. And when we're

12 talking about 4,000 documents, even if I only have to talk to him about

13 2,000 of those, that's a long, long process. And in the time that I've

14 been working at this so far, he and I may have discussed a hundred

15 documents or something like that. So we're closer to the beginning of

16 that process than we are to the end.

17 I think it would probably shock the conscience of the Court if I

18 said that it looks to me like this case couldn't come to trial for another

19 year, but when you look at the two years that we've spent so far and

20 what's been accomplished in that two years, and to learn today that two

21 thirds of the documents are yet to come in terms of the hard copy that the

22 Prosecution believes is relevant to this case, that a hundred thousand

23 pages of documents out of a collection of 150.000 pages is yet to come,

24 some of which will not come for another month or so, one must begin to

25 conclude that something more than two or three months is going to be

Page 304

1 required to get through what amounts to 70 or 80 per cent of the material

2 that eventually will have to be dealt with in this case.

3 JUDGE HUNT: But you have to keep in mind what Ms. Korner said,

4 that it's only a question of identifying them as Rule 68 material. You

5 already have, electronically, the material that they are going to

6 identify.

7 MR. ACKERMAN: I'm not sure that's true. I think when she says we

8 already have it, she is talking about we already have it or we will have

9 it when they finally give us all hundred thousand documents from the CSB

10 collection. I don't know that. I don't know that we already have it in

11 any kind of form. But still, there's the same process of going through it

12 and going through and finding it.

13 JUDGE HUNT: Yes. Well, to say that it shocks the conscience of

14 the Court might be putting it in a slightly florid form, but it is a

15 horrifying prospect that it will take another year to be ready. Now, you

16 have been given further assistance. It no doubt was not everything you

17 asked for.

18 MR. ACKERMAN: Pretty close. The thing that I think is probably

19 not completely understood is I now have a new burden and that is finding

20 qualified people to fill those positions, and I can't imagine that would

21 take less than 30 to 45 days. So in terms of start-up, we're that far

22 away from having those people be doing useful work.

23 JUDGE HUNT: This may be inappropriate to say to practitioners as

24 experienced as yourself, but there is often a problem when you have more

25 than one advocate in the case that each thinks that he has to do the whole

Page 305

1 case. There is a matter of dividing up the work between the advocates so

2 that you don't -- each of you don't have to read the whole of the

3 documents.

4 MR. ACKERMAN: Well, and I think to some extent that's going on.

5 I know that when I see materials that are clearly just military materials

6 that are relevant to the General Talic case, I tend to gloss over them

7 rather rapidly, and I'm sure that they do the same with regard to

8 burgeoning materials, so --

9 JUDGE HUNT: But if you have another counsel appointed, which I

10 gather you have had, he doesn't have to duplicate your work.

11 MR. ACKERMAN: Absolutely. No question about that.

12 JUDGE HUNT: As long as that's very clear.

13 MR. ACKERMAN: Oh, yes. Absolutely. And I will have another

14 counsel appointed rather soon and there will be no duplication there.

15 We will be working on separate matters.

16 JUDGE HUNT: Yes. Was there anything you wanted to add?

17 MR. ACKERMAN: I just wanted to point out that Your Honour is

18 extremely efficient in terms of responding to certain matters, and I

19 specifically point to your dismissal of my motion to dismiss before I

20 could get to you my motion to withdraw my motion.

21 JUDGE HUNT: Well, I'm very glad to hear that. It seems to be an

22 American style of advocacy, however, to make the most appalling

23 allegations. I wonder really whether it's necessary, some of them that

24 were made in that motion.

25 MS. KORNER: Your Honour, may I respond, just for a moment, to one

Page 306

1 point before Mr. Pitron starts?


3 MS. KORNER: I want to be absolutely clear: The 2.500 documents

4 do include hard copy Rule 68. In fact, I'd say the documentation which

5 we're still disclosing and on which we intend to rely forms about 70 per

6 cent. We'd in -- contain most of those documents that we are doing in

7 hard copy are on the CD-ROMs. I don't want there to be any

8 misunderstanding, but we still have to comply with our obligations to get

9 this material translated.

10 JUDGE HUNT: I confess that I did understand what you had said

11 before that you had another two and a half thousand Rule 68 documents.

12 That's not so.

13 MS. KORNER: No. No, no. It's not. I'm sorry. We estimate

14 roughly 30 per cent will be Rule 68 and 70 per cent documents on which we

15 rely.

16 JUDGE HUNT: All right. Thank you.

17 MS. KORNER: Can I raise just one other issue on that? And I

18 raise it now so that Your Honour knows. Because, in order to get this

19 material to the Defence as quickly as possible, in other words, that we

20 think may be useful to them, we have adopted a system of summary

21 translation, in other words, we use a non-registry authorised, or

22 translation authorised interpreter to get -- to do a summary translation.

23 This is really Rule 68 material. For example, we recovered a number of

24 interviews of people who had been seized by Serb -- Bosnian Serb forces.

25 There were a large number, to get them all translated would have taken a

Page 307

1 long time, so we got summaries in English of what was said. And that is

2 another method that we can speed things up with, we hope. I'm sorry. And

3 --

4 JUDGE HUNT: The word summary worries me slightly. You mean

5 somebody has interpreted the document and then summarises it.

6 MS. KORNER: Yes. Somebody reads -- a reader of the Bosnian Croat

7 Serb language reads through the statement and does a summary in English.

8 It's not intended as anything like a translation, but it's the quickest

9 way at least of informing the Defence counsel what's in that statement.

10 JUDGE HUNT: Is there a full translation coming?

11 MS. KORNER: Not at the moment. I'm raising it. We're hoping

12 that will satisfy the Defence. But if it doesn't, it will have to go into

13 full translation and that will then hold things up even further.

14 JUDGE HUNT: It's going to depend upon the perception of your

15 non-registry translator as to whether or not it has anything in it that

16 is of Rule 68 nature.

17 MS. KORNER: Yes. I'm afraid that -- we're trying to do what we

18 can using what methods we can to ensure that the Defence have this.

19 JUDGE HUNT: I think that's a very good idea that you do that, but

20 at some stage to comply with Rule 68 you've got to give to them a proper

21 translation.

22 MS. KORNER: Well, I mean, I'm hoping that they will accept that

23 in lieu, but --

24 JUDGE HUNT: Well, may I suggest that you discuss that with them,

25 because I don't want that one to blow up, as it were, closer to a trial

Page 308

1 date. But thank you for that.

2 Now, Mr. Pitron.

3 MR. PITRON: [Interpretation] Mr. President, I agree with what my

4 colleague, Mr. Ackerman, said, and I won't go back to what he's already

5 said. I would bring some details in with what he said, then I'll make

6 some general comments as well.

7 First of all, as regards the specific problems of exhumations,

8 this morning -- I was informed this morning about the issue, and I simply

9 cannot right now make a statement as to the application of the Prosecution

10 to consider only parts of the file and not all of them. Once I have read

11 the whole file, I can come to a more definitive statement about that.

12 As regards the problem of the CD-ROMs, I believe that we've got to

13 be clear and specific, Mr. President. The Prosecution is telling you that

14 in any case all of the documents are available on CD-ROM, and that for

15 that reason already, the Defence is in a position to work. I am sorry to

16 tell you that that is not true. On CD-ROM, only the information having to

17 do with the municipality of Banja Luka is available. You do know,

18 Mr. President, that many municipalities are involved in this case. And in

19 addition, all of the information on the CD-ROMs is in Cyrillic script, an

20 alphabet, Mr. President, which I do have to admit to you that I do not

21 read, and this means that as long as the translations have not been

22 prepared, the CD-ROM cannot be used at all.

23 Of course, I would like to work quickly, if for no other reason

24 than the fact that my client has been in prison for 20 months. I would

25. like to work hand in hand with Mr. Ackerman and divide the

Page 309

1 work we have to do in two. But we don't have the same clients and most

2 importantly, we don't have the same profile. I am a military person. I'm

3 being prosecuted for my activities as a military person and not just only

4 as a member of the Crisis Staff and therefore I must have a specific

5 defence and absolute knowledge of the entire file. This is one of the

6 reasons why at the time I had asked that my case be separated from Mr.

7 Brdjanin's.

8 But to work quickly, work quickly, is that really what the

9 Prosecution is looking for? Let me point out that this Tribunal was

10 created in 1993, and that it began to work in 1994, in the Tadic case,

11 which dealt with the Omarska incidents, and these are exactly at the very

12 heart of the Prosecution today. Let me point out that the Prosecution has

13 documents -- most of the documents in that case, and has them ever since

14 November of 1995, and all the way up to 1998. And I mean by this that by

15 the end of July or the middle of August, they didn't quite say whether it

16 would be 2001 or 2002, I will have all of the rest of the documents that

17 I'm expecting. In fact, my feeling is the following: The Prosecution in

18 this case is not right to attack the Translation Service or the people who

19 have made the photocopies or to explain that the delay in the work is

20 explained -- can be explained by technical problems, but rather to the

21 fact that the Prosecution has not analysed all of the documents that it

22 has. That it put my client in prison on the basis of very general

23 allegations, and you yourself acknowledged that when you asked for a new,

24 more specific indictment. And that now that he is in prison, the

25 Prosecution is taking its time in order to analyse the documents. In

Page 310

1 fact, it is doing work which could have been and should have been done a

2 long time ago, and puts the responsibility for this intolerable delay on

3 the backs of third parties who are in no way responsible.

4 Without prejudice to the guilt or innocence of my client at this

5 time, what is for sure is that the person who has been suffering the most

6 for 20 months of detention, I say this to you frequently,

7 Mr. President, is he himself.

8 JUDGE HUNT: Mr. Pitron, I understand that you cannot say anything

9 at this stage about, for example, the exhumation documents, but I do hope

10 that once you've had the opportunity of seeing them, there will be some

11 agreement about less than strict proof of material like that. It would be

12 a perversion of the trial if the Prosecution was required to prove those

13 sorts of things strictly when there cannot be any real dispute about them,

14 and I'm talking simply about the fact of death, not cause of death.

15 MR. PITRON: [Interpretation] Mr. President, let's be clear about

16 things. I am not the one who is going to extend the time period for this

17 trial by using all kinds of unreasonable means, but I am not the one

18 either who is going to answer the Prosecutor in respect of an important

19 question having to do with thousands of documents when I had the

20 information only an hour and a half ago.

21 JUDGE HUNT: I'm not criticising you, Mr. Pitron, at all. I'm

22 just trying to urge you to look at them from the point of view of

23 agreeing, if you can, to some form of informal proof, that's all. I'm

24 certainly not criticising anybody in relation to that. Do you want to

25 answer anything there, Ms. Korner?

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Page 312

1 MS. KORNER: Only this: In addition to the Banja Luka collection,

2 as I call it generally, which is the bulk of the evidence in this case, if

3 the Defence have had on CD-ROM all the documents seized in respect of -- I

4 say all. I always have to be careful, because we always find two or three

5 more lurking somewhere, but the bulk from Sanski Most, from Kljuc, and

6 from Kotor Varos.

7 JUDGE HUNT: And those are the only material documents that you

8 have?

9 MS. KORNER: No. There are -- Mr. Pitron is right to this extent,

10 of course, there are documents that relate to the other municipalities

11 mentioned, but they're not in the same sort of thing, so they're being

12 disclosed in hard copy. And Your Honour, we've got a long list of

13 everything we've been disclosing that we've disclosed from every single

14 municipality now save for one, and that's a place called Donji Vakuf.

15 JUDGE HUNT: By the way, that confidential motion which you filed

16 in relation to Rule 66(C), the reference to seizing documents makes me

17 raise this issue with you: If they were seized, there's no suggestion

18 that you've had any request -- there's nothing in the motion to suggest

19 you've ever had any request from the owners of these documents to seek any

20 assistance or protective measures.

21 MS. KORNER: No, that's right. Absolutely. As we said, if I can

22 put it that way, this is more of an amicus application.

23 JUDGE HUNT: I see. In the absence of anything from the owners,

24 who one might have thought would have been more concerned about the

25 documents, it may be that less than kindness will be exhibited toward your

Page 313

1 application.

2 MS. KORNER: That's one aspect, Your Honour, but there is -- there

3 are others to this.

4 JUDGE HUNT: I haven't looked through the documents yet, but it

5 struck me, reading through the motion, that there was nothing to suggest

6 that there had been some complaint by those from whom the documents were

7 seized that they had some form of Crown privilege --

8 MS. KORNER: That's right.

9 JUDGE HUNT: -- to use a very old term.

10 MS. KORNER: Yes. It is a matter, Your Honour, that I think we

11 would welcome on oral hearing on so we can explain in a bit more detail.

12 JUDGE HUNT: Yes. Well, We'll be coming to that one later.

13 Now, The last matter I want to raise, and I think we'll very well

14 to deal with it now: I'm having a problem with the pleading, with the

15 amended pleading.

16 MS. KORNER: Right.

17 JUDGE HUNT: You see, we have a motion in relation to its form,

18 and it concerns the way you've pleaded common purpose. Each count, of

19 course, incorporates paragraph 27 of the indictment and it also speaks of

20 acting in concert, which I assume is intended to pick up common purpose.

21 That wasn't its intention, was it?

22 MS. KORNER: We actually used the words "common purpose" in

23 paragraph 27.

24 JUDGE HUNT: Yes, but in each particular count, having

25 incorporated paragraph 27, you also speak of the two accused acting in

Page 314

1 concert with each other and others.

2 MS. KORNER: Yes.

3 JUDGE HUNT: The common purpose which you plead is set out as

4 being the permanent removal of the majority of Bosnian Muslim and Bosnian

5 Croat inhabitants from the territory of the planned Serbian state. And

6 earlier in the indictment, at paragraph 6, you have used the more

7 colloquial phrase of ethnic cleansing. So that the agreement was to

8 ethnically cleanse this area that you rely on. That's so, is it not? And

9 there would be some of the crimes that had been charged which may be

10 inherent in ethnic cleansing. But then at the end of that particular

11 paragraph, you say: "Each of the crimes enumerated in counts 1 through 12

12 of this indictment were natural and foreseeable consequences of this

13 enterprise." Now, that is what, at least as a common lawyer, I would call

14 a true common purpose case, where a crime other than that agreed to had

15 been committed. That's so, is it not?

16 MS. KORNER: Yes.

17 JUDGE HUNT: Now, the phrase "natural and foreseeable consequences

18 of the enterprise" appears to have come from the Tadic decision, paragraph

19 204. And paragraph 204, however, goes on to deal with what I prefer to

20 describe as the relevant state of mind. Civil lawyers rather like Latin,

21 and they call it mens rea. And it says in paragraph 204:

22 "Criminal responsibility may be imputed to all participants

23 within the common enterprise where the risk of death occurring was both a

24 predictable consequence of the execution of the common design and the

25 accused was either reckless or indifferent to that risk."

Page 315

1 Now, you have not pleaded that. You have pleaded no state of mind

2 in relation to this at all. To say something was foreseeable is an

3 objective test. Unfortunately, it is not as clear-cut as one would have

4 hoped, and I say that with all due respect to the members of the Appeals

5 Chamber who wrote this decision, because they have unfortunately used

6 various expressions almost interchangeably that to me convey slightly

7 different qualities of the state of mind that must be proven.

8 For example, in paragraph 220, dealing with this particular

9 category of common purpose, it said:

10 "What is required is a state of mind in which a person, although

11 he did not intend to bring about a certain result, was aware that the

12 actions of the group were most likely to lead to that result, but

13 nevertheless willingly took that risk."

14 And then again, in paragraph 227:

15 "In addition, responsibility for a crime other than the one agreed

16 upon in the common plan arises only if, under the circumstances of the

17 case, it was foreseeable that such a crime might be perpetrated by one or

18 other members of the group and the accused willingly took that risk."

19 Now, there's a small problem about possibilities and

20 probabilities, but they nevertheless all state a particular state of mind

21 that the Prosecution must establish, and you have not pleaded it.

22 MS. KORNER: Your Honour, can I -- I wasn't aware that Your Honour

23 was going to raise that with us today, so I haven't gone back and looked

24 at the Tadic decision. Your Honour is quite right. That wording was

25 taken.

Page 316

1 JUDGE HUNT: Well, we've got a motion, you've put a response on.

2 The motion complained that what you were seeking to do was to have

3 somebody made guilty simply because they had a particular state of mind,

4 without any actions being taken, and this is the converse of that, and

5 it's a matter which I see of being of some importance. It's clearly a

6 material fact which has not been pleaded.

7 MS. KORNER: Yes, Your Honour. I'm just trying to think

8 of -- yes, you would in a conspiracy. Your Honour, I'm sorry. Would Your

9 Honour give me a moment, I mean time to look at it again?

10 JUDGE HUNT: What I'm raising it for is I suggest that you might

11 like to put on a further response dealing specifically with that, because

12 at the moment, although the point is not perhaps very clearly taken in the

13 motion, it is a very real concern. You have pleaded, of course, in

14 relation to superior authority, or superior responsibility, that each of

15 the accused knew and had reason to know that the Serb forces were about to

16 commit such acts. Whether that could be used and transferred to common

17 purpose, I'm not sure. It might be putting your case a bit higher than

18 you need to put it. But whatever it is, we've got to have this indictment

19 properly pleaded, and I would invite you to deal with that particular

20 problem, because as it stands at the moment, I would say that common

21 purpose has not been properly pleaded.

22 MS. KORNER: Well, Your Honour, I'm grateful for that

23 indication

24 JUDGE HUNT: How long do you think you would need? I'd like to

25 get this out of the way next week, because we're not sitting in

Page 317

1 Krnojelac.

2 MS. KORNER: Would Your Honour say --

3 JUDGE HUNT: Tuesday?

4 MS. KORNER: Tuesday.

5 JUDGE HUNT: Yes. All right. Thanks.

6 MS. KORNER: Your Honour, can I then come back to really the

7 question of the date?

8 JUDGE HUNT: Well, at the moment, the President, who has control

9 of the matter at the moment, trying to organise the resources that we have

10 for trials to start before the end of our current term, had indicated that

11 he wanted this case to start on the 10th of September. Now, I realise

12 that that will cause horror in the minds of the accused's counsel, but

13 nevertheless, that is the date. When we set September, we did not know

14 any specific date, but it has now been identified, as I understand it, as

15 the 10th of September. Clearly, there will be problems so far as the

16 readiness of the accused, but that was the date that he wants to start

17 it. I shall have to report back to him what's happened today, but

18 that's the date he wants to start it.

19 MS. KORNER: And Your Honour can't say at this stage whether or

20 not, in the light of what we've said about disclosure and Mr. Ackerman has

21 said, it won't be the 10th of September?

22 JUDGE HUNT: Well, it won't be my decision in the end, because the

23 Trial Chambers are all being reorganised. I have no idea who is going to

24 be trying it, whether I am or anybody else. The trial date, in the end,

25 will be the responsibility of the Trial Chamber who is going to hear it,

Page 318

1 or at least some member of it, in consultation with the President. So I

2 can't say to you it won't proceed, but I will certainly be expressing a

3 view to the President that I don't think it's going to be ready to

4 proceed, which is not a good start.

5 MS. KORNER: No. Your Honour, the only reason I raise it is the

6 same reason we ask for an indication. It's the question of witnesses. We

7 need to warn witnesses in advance.

8 JUDGE HUNT: I understand that, and I also have to make, or

9 perhaps the Trial Chamber has to make, orders that you disclose the

10 identity of those eight witnesses whose identity so far is not disclosed,

11 and that has to be done in time for the defendants to be able to

12 investigate those people. So I have very much the matter of date in mind.

13 But you will get, I should think, at least two months' notice of when it's

14 going to be. And if it's going to be the 10th of September, then you'll

15 get a notice in July. But I cannot say anything more than that at this

16 stage, I'm afraid.

17 Is there anything else you want to raise at this Status

18 Conference?

19 MS. KORNER: In an attempt again to shorten matters, we served the

20 evidence relating to international armed conflict on the Defence with a

21 request for an admission of that evidence without an admission that it

22 amounted to international armed conflict but that they would admit the

23 evidence, and we've been unsuccessful in that so far.

24 JUDGE HUNT: I was very grateful that we at least got some

25 assistance from the Prosecution in the response by identifying that

Page 319

1 material. It would help. There's been no final conclusion reached about

2 the form of the indictment, but assuming that you are correct that

3 the -- in relation to most of it, that the material facts have been

4 pleaded, it may be that you will be ordered to supply particulars by

5 reference to the statements you rely upon to prove the particular material

6 fact. It struck me that if we are starting this trial this year, at

7 least, it may be easier, from the Prosecution's point of view, simply to

8 file a Pre-Trial brief, which would have to include this material. But

9 it's a matter for you. If we do order some, we may give you the option.

10 How long do you think it will take you to put a Pre-Trial brief in?

11 MS. KORNER: Well, with the finishing of disclosure, I would

12 hope -- well, depending on the order Your Honour made, quite honestly. I

13 could do it by mid-July.

14 JUDGE HUNT: Well, I'm just giving you fair warning that certainly

15 particulars will be ordered of some things. From what I've seen so far,

16 there are somewhere -- the Defence is entitled to some assistance, not by

17 way of having the material pleaded, but at least having some assistance in

18 the evidence on which you rely, by way of particulars, identifying

19 particular statements.

20 MS. KORNER: Your Honour, we did that. We've also got, as we made

21 it clear to the Defence, additional evidence, and we can easily identify

22 that and disclose it and say this is what we say amounts to it

23 JUDGE HUNT: All right. Thank you for that. I look forward to

24 your assistance in the document you're going to file by Tuesday.

25 Mr. Ackerman, is there any matter under the strict terms of the

Page 320

1 Status Conference Rule that you want to raise, or anything else, indeed?

2 MR. ACKERMAN: "The strict terms of the Status Conference," Your

3 Honour, sounds a built limiting.

4 JUDGE HUNT: No, no. I said "or anything else." The Status

5 Conference Rule does permit you to raise anything about the preparation

6 for the trial, but it also raises questions about --

7 MR. ACKERMAN: Conditions of confinement and that sort of thing.


9 MS. ACKERMAN: Yes. No, I have nothing to say about that. I

10 would like to comment very briefly on two things that have come up, and

11 I'll be as quick as I can, Your Honour.

12 JUDGE HUNT: That's all right.

13 MR. ACKERMAN: The motion that we talked about first thing this

14 morning with regard to the new Prosecution motion for protection. What I

15 want to make clear, and perhaps in my quick response I failed to do that,

16 was that I'm trying to avoid a situation where there is something in those

17 documents that would require me to have an investigator to go to a

18 particular person and say,"We have an indication that such-and-such

19 occurred. You were here. Did it?" By the strict terms of what she is

20 asking for, I would not be permitted to do that, because I don't think an

21 investigator would come within that expert limitation that she has in that

22 motion. If I understand it to be that it can be disclosed to anyone who

23 is a member of the Defence team for investigative purposes, then I don't

24 have any problem with that. And the investigator doesn't have to say who

25 the statement is from or where the document came from, but certainly might

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14 and the English transcripts.












Page 322

1 need to say to a witness what the contents of that is in terms of

2 conducting the investigation. That's what I'm afraid of having foreclosed

3 by the Prosecution's request.

4 The other thing that I want --

5 JUDGE HUNT: Just before you go on.


7 JUDGE HUNT: In the original protective measures decision, the

8 Brdjanin and Talic Defence was defined, at the suggestion of the

9 Prosecutor, to include the two accused, Defence counsel, and their

10 immediate legal assistants and staff, and others specifically assigned by

11 the Tribunal to the accused, and specifically identified in a list to be

12 maintained by the lead counsel. So that would not appear to include

13 experts. That's your problem.

14 MR. ACKERMAN: My problem really goes the other way. If it's

15 limited to experts, then it wouldn't include those people.

16 JUDGE HUNT: Yes. You see, each of -- the Brdjanin Defence are

17 entitled to disclose to the public if it is directly and specifically

18 necessary to disclose such information for the preparation and

19 presentation of the case.

20 MR. ACKERMAN: That's the part I'm concerned about. I think she

21 is asking that that be prohibited with regard to this particular witness.

22 JUDGE HUNT: I see.

23 MR. ACKERMAN: And that's what concerns me. I want to be able to

24 conduct an investigation if, having looked at those documents, I believe

25 one is necessary.

Page 323

1 JUDGE HUNT: I see.

2 MR. ACKERMAN: And not just by talking to an expert, but by

3 sending an investigator into the field if I need to. And it appears that

4 by the terms which she has outlined in her motion, that I can't disclose

5 it to an investigator, but only to counsel and experts.

6 JUDGE HUNT: Well, the word "staff," you see, and "their immediate

7 legal assistants and staff" would include an investigator, would it not?

8 MR. ACKERMAN: That isn't what her motion says.

9 JUDGE HUNT: No, But I'm trying to see whether she would be

10 entitled to have anything narrower than was in the original protective

11 measures.

12 MR. ACKERMAN: What you just said is no problem. We can live with

13 that, and we have this whole time.


15 MR. ACKERMAN: That's where I think it should be. That's all I'm

16 asking.

17 JUDGE HUNT: Can I deal with that before you go on with your

18 other matter?

19 MR. ACKERMAN: Please.

20 JUDGE HUNT: Ms. Korner, why can't we use the same formulation?

21 This witness has give evidence in almost every case, hasn't he?

22 MS. KORNER: Never. First time.

23 JUDGE HUNT: I'm told that he gave evidence in two other cases.

24 MS. KORNER: Must be a different witness. As far as -- oh, yes.

25 Your Honour is -- yes, Your Honour is confusing him with one of the ECMM

Page 324

1 persons. This witness --

2 JUDGE HUNT: I'm talking about the UN witness.

3 MS. KORNER: Yes.

4 JUDGE HUNT: Which is what the --

5 MS. KORNER: This UN witness has never given evidence before.

6 Your Honour, we merely repeated -- this is all -- if I can put it this

7 way, what's called colloquially Rule 70 stuff. We repeated the conditions

8 that were set out by Mr. Zacklin and the other gentleman, Mr.

9 Guennho [phoen].

10 JUDGE HUNT: I had read Mr. Zacklin's letter. I had not read the

11 other until --

12 MS. KORNER: Mr. Guennho's [phoen] is attached to the motion. We

13 are merely -- the effect is: If these measures aren't granted, they say

14 no clearance, more or less. That's made very clear in their letters.

15 JUDGE HUNT: Well, the motion was handed to me as I came into

16 Court, but the letter had found its way into my room yesterday sometime.

17 MS. KORNER: Yes.

18 JUDGE HUNT: And that was the one that relates to the UN witness

19 who has given evidence in a number of other cases, at least two.

20 MS. KORNER: Sorry. Your Honour is confusing me now.

21 JUDGE HUNT: The one referred to in Mr. Zacklin's letter.

22 MS. KORNER: No. This is -- no, no. Your Honour, the witness

23 referred to in Mr. Zacklin's letter and the documents referred to in the

24 letter attached is from a different gentleman, but it's the same witness

25 and it relates to the documents. There are two forms of clearance - one

Page 325

1 relating to a witness being allowed to testify and one allowing the

2 documents to be disclosed to the Defence and used in Court

3 proceedings - and they both relate to the same gentleman, who has never

4 given evidence before.

5 JUDGE HUNT: Well, it may be that the Judge who I spoke to about

6 it misunderstood the letter as well, but he said that he had seen this

7 witness give evidence in two cases before him. But leave that to one

8 side. Are the documents being produced for the first time?

9 MS. KORNER: Yes, I think so. I need to double-check, but I don't

10 think they've ever been used before.

11 JUDGE HUNT: You see, I wonder whether Mr. Zacklin was aware of

12 the terms under which the protective measures have so far been imposed.

13 It seems to me that Mr. Ackerman's point is a fair one, and it seems to

14 mean that he himself would have to go out into the field to ask questions

15 rather than the investigator.

16 MS. KORNER: Yes. I'm not -- I don't quite -- I mean, I agree.

17 The phrase used in the letter is "expert advisors." I'm not quite clear

18 whether they mean experts or investigators or whatever. But What they're

19 clear about is that they don't want the contents of the documents divulged

20 to the public, in other words, outside --

21 JUDGE HUNT: That's right. Except so far as is necessary, to

22 use the wording of the protective measures decision, so far as is

23 necessary for the presentation and protection of the Defence. Now, If

24 that is

25 so, it may be that we can simply say we understand experts to include

Page 326

1 investigators.

2 MS. KORNER: Yes. I think, Your Honour, what we can do is we

3 can try and make some inquiries. I gather this is a standard form letter

4 that they send, effectively, in relation to all that the witness

5 has -- it's the same protective measures that they ask on each and every

6 occasion.

7 JUDGE HUNT: All of the others, about closed session and

8 everything, fair enough, if that's the way they want to do it, but it's

9 the prohibition on the investigation of the evidence that he's going to

10 give that worries me, and it may be that they just haven't quite perceived

11 the problem that they have posed.

12 MS. KORNER: Yes. I mean, I think Your Honour's solution is the

13 right one in saying that we understand by "expert" includes investigators.

14 JUDGE HUNT: Well, if that could be cleared.

15 MS. KORNER: I'll make some inquiries.

16 JUDGE HUNT: Thank you. And we'll get on to that one as soon as

17 we can.

18 Now, Mr. Ackerman, there's something else you wanted to say.

19 MR. ACKERMAN: Yes. You mentioned briefly, Your Honour, some

20 documents that the Prosecution has given to the Chamber for you to look at

21 and determine whether they should be turned over to us or not. They're

22 documents from the CSB collection.

23 JUDGE HUNT: That's right. A claim for public interest immunity

24 on behalf of the organisation from which they were seized, I assume.

25 MR. ACKERMAN: I explained to you before, Your Honour, that the

Page 327

1 only reason that the Prosecution has these documents instead of us having

2 them is that they got there first, and I think the Court would give very

3 short shrift to a claim by me that I have documents that are too sensitive

4 for the Prosecutor to see, and I just can't understand why it doesn't give

5 short shrift to the same claim by the Prosecutor. What makes her any more

6 able to look at sensitive documents than me? We are both officers of the

7 Court. We both have a role here. Now, if she wants -- well, that's all I

8 want to say about it. I just think we should be able to see these

9 documents.

10 JUDGE HUNT: Yes. You raised this about two Status Conferences

11 ago, specifically on this point when it was raised.


13 JUDGE HUNT: And I've got it noted. Is that the only other matter

14 you wanted --

15 MR. ACKERMAN: I think that's all I have. Thank you, Your Honour.

16 JUDGE HUNT: All right. Mr. Pitron.

17 MR. PITRON: [Interpretation] I have nothing to add,

18 Mr. President.

19 JUDGE HUNT: Very well, then. Well, I shall report to the

20 President of the Tribunal about the problems of preparation. I am

21 concerned that if it doesn't start in September, it may fall behind and

22 have to wait six months, nine months, to get another Trial Chamber

23 available to do it. The President is certainly going to start every case

24 he can, with these additional ad litem Judges, on the 10th of September or

25 some such date, and once we are all engaged, six trials running at the

Page 328

1 same time, or five trials - I've forgotten which - the Trial Chambers will

2 be engaged until those trials are finished, and I would not like the two

3 accused in this case to lose their place in the priority list, as it were,

4 because of it. So that's account of that in view, but I will, as I say,

5 consult with the President about it and I shall probably have another

6 hearing about it to discuss it with you when I have his response.

7 Ms. Korner, you did say you wanted an oral hearing on the Rule

8 66(C) documents.

9 MS. KORNER: It appears, the Rule appears to suggest an oral

10 hearing, and I think it would help if we can explain --

11 JUDGE HUNT: Well, I'm going to put them to one side for the

12 moment. I want to get all these other matters aside first. I have only,

13 as I say, read the motion. All right. Well, if that's --

14 MS. KORNER: Does Your Honour still want a written reply from the

15 Prosecution as to what Mr. Ackerman said?

16 JUDGE HUNT: Not after what you've said --

17 MS. KORNER: Yes.

18 JUDGE HUNT: -- In the Status Conference. Well, if that's all,

19 thank you very much for your attendance, and I'll adjourn.

20 --- Whereupon the Status Conference adjourned at

21 12.14 p.m.